Toman Lal Sahu Vs State of Chhattisgarh

This appeal is filed under Section 374 (2) of the Criminal Procedure Code, 1973 ( for short Cr.P.C.) arising out of impugned judgment of conviction and order of sentence dated 02.09.2006 passed by the Additional Session Judge, Balod District - Durg (C.G.), in Session Trial No. 173/2005 by which, learned trial Court held the

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appellants guilty of commission of offence and sentenced as described below -

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Conviction	Sentence Awarded
U/s 498-A of Indian Penal Code.	Rigorous imprisonment for 2 years and fine of Rs. 1,000/- to each of the appellants/accused, in default of payment of fine six months R.I. to each separately and consecutively.

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Case of the prosecution in brief is that complainant Surita Bai (Pw-7) was married to appellant No. 1 Toman Lal in the year 2001 and they were also blessed with a daughter namely Shivangini. She was subjected to harassment by the accused/appellants and others family members and she was being assaulted also. After one year of the marriage, complainant started living in her matrimonial home and there she was also subjected to harassment on account of dowry. On 01.04.2003 she was subjected to assault by the appellants and other family members by hand, fist and rod etc. She went to her matrimonial home and lodged a report thereafter she entered into compromise with the in-laws. The further case of the prosecution is that when the complainant was sleeping in her house, the accused/appellants tried to put kerosene on her and tried to lit the fire but when she tried to run away both of them held her. The fire was extinguished by the people of nearby vicinity, she was pressurized not to narrate true fact of the incident otherwise she will face the dire consequences. Hence, initially she didn’t tell the truth, when her relatives came in the hospital then she narrated the entire incident. As a result of the fire her eyes, waist, stomach and elbows were burnt.

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A memo was received by Police Station- Dewary from hospital upon which Dehati Nalashi was recorded and under crime No. 24/2005 investigation was set on motion. Seizure from the place of incident was made, spot map was prepared, statement of the witnesses were recorded and after due investigation, the chargesheet was filed before the competent Court. The case was committed to the learned Sessions Judge which was made to learned trial Court for trial .

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The appellants were charged for offence punishable under Sections 307, 498-A and 201/34 of I.P.C. They denied the charges and claimed to be tried. The prosecution in order to establish its case examined 11 witnesses as well as 23 exhibited documents.

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The statements of the accused/appellants have also been recorded under Section 313 of Cr.P.C they examined Manrakhan Lal (Dw-1) and appellant Toman Lal

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himself as (Dw-2). Total 8 accused persons were put for trial i.e. appellant No. 1 Toman Lal and appellant No. 2 deceased Aalha Ram Sahu (died during the pendency and his appeal stands abated) and appellant No. 3 Smt. Annusuiya Bai were convicted and rest of the persons were acquitted from all charges. The learned trial Court after appreciation of evidence, acquitted the appellants for charges punishable under Section 307 of the IPC by the impugned judgment which is assailed before this Court.

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Ms. Fouzia Mirza along with Mr. Naveen Shukla, learned counsel for the appellants argued that the case against the accused/appellants could not be proved by the prosecution beyond reasonable doubt. The statement of the complainant Surita Bai (Pw-7) is not credible. Only general and omnibus allegations were leveled. The trial Court did not find her evidence credible enough to hold conviction under Section 307 of IPC which goes to show that her statement cannot be relied upon for the purposes of holding conviction under Section 498 -A of IPC. Alternatively she submits that the said incident said to have been committed in the year 2005, the appellants are facing long- drawn litigation since then and appellant No. 2 must be around in her 70’s and the appellant Toman Lal must be around in his late 40’s. She further submits that appellant No. 1 Toman Lal has a marriageable daughter and they were on bail during the trial and their sentences were also suspended by the Trial Court and they never misused the liberty. Therefore, in the event the appeal is dismissed, they remained in jail about 8 days therefore, the sentence may be reduced to period already undergone by enhancing the fine amount. To bolster her submission, she would rely upon the judgments of the Supreme Court in the matters of of Kunja Bai Vs. State of Madhya Pradesh reported in (2016) 15 SCC 608; S. Mahaboob Basha Vs. State of Karnataka reported in (2014) 10 SCC 244 and B.T. Jayaram Vs. State of Karnataka reported in (2008) 14 SCC 530.

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Per Contra, learned Counsel for the State submits that from the evidence of prosecution witnesses, the case against the appellants is made out, no leniency

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should be shown to them and the appeal deserves to be dismissed.

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After hearing counsel for the parities and going through the evidence adduced by the parties in particular that of complainant Surita Bai (Pw-7) who in her statement before the Court vividly described about the incident and in a manner she was subjected to harassment. She was cross-examined at length, after careful assessment of the evidence her statement appears to be credible and her statement is also corroborated by Pw-8 Manthir Ram father of the complainant Surita Bai (Pw-7) who very categorically stated that the harassment caused by the appellants and he was informed by the complainant. Further corroboration takes place by the statement of Pw-9 Meghdas Vaishnaw and this has been further corroborated by mother of the complainant Pw-11 Smt. Munni Bai.

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After cumulative assessment of these evidence, the learned trial Court though acquitted the appellants under Section 307 of IPC, however convicted the appellants under Section 498-A. After deep analysis of the statements, the findings so recorded does not appear to have any infirmity, therefore, conviction of the appellants under Section 498-A of IPC does not require any interference.

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This leads me to the second submission with regard to reduction of sentence. Hon’ble Supreme Court in case of Kunja Bai (Supra) it has been observed as under:-

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“14. Apart from arguing on merits of the case, the learned counsel for the appellant would submit that the harsh sentence of rigorous imprisonment for a period of one year ought to be reduced. The learned counsel for the appellant would submit that the incident took place in the year 1989, and about 27 years had passed since then. The learned counsel for the appellant would further submit that the appellant was an elderly lady of over 65 years of age and suffering from various ailments associated with old age. The learned counsel for the appellant would also submit that no minimum sentence waws prescribed under Section 498-A IPC, and the appellant had already undergone imprisonment for a period of one month. Keeping these aspects of the matter in view, the learned counsel for the appellant

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would submit that the sentence ought to be reduced.”

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In case of S. Mahaboob Basha (Supra) it has been held as under:-

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“11. The appellant-accused had remarried and has three children through his second wife, who are to be educated. The appellant through his first wife has two daughters and one son and one daughter is said to be pursuing engineering course. The appellant has to take care of his aged parents. The appellant has undergone sentence of imprisonment for about one month and the appellant is presently on bail. Considering the totality of the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant for conviction under Section 498-A IPC is reduced to the period already undergone by him and a fine of Rs 2,00,000 (Rupees two lakhs only) is imposed, in default of payment of fine, the appellant is to undergo imprisonment for five months. Insofar as the conviction of the appellant under Section 506 IPC is concerned, he was sentenced to undergo SI for six months and it is reduced to the period already undergone and the same is ordered to run concurrently. The fine amount of Rs 2,00,000 is payable in two instalments. Rs 1,00,000 is payable within four months from today and remaining Rs 1,00,000 within six months thereafter. In default of payment of any one instalment of the amount, the appellant is to undergo the imprisonment as aforesaid. The fine amount of Rs 2,00,000 shall be paid to PW 1 Noorunissa as compensation under Section 357 CrPC. We direct the trial court/Principal Judicial Magistrate, First Class, Bellary to issue notice to PW 1 Noorunissa, as and when the instalments are deposited and disburse the amount to PW 1 Noorunissa.”

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Nothing incriminating is brought to the notice of this Court that appellants have not reformed during pendency of this appeal. Nothing significant is on record to suggest that their freedom is detrimental to society at large. Overall facts & circumstances indicates that no harm to society at large is likely to cause in case the accused/appellants are prematurely released.

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The appellant No.1 Toman Lal at present must be in his late fourtees and appellant No. 3 must be aged about 70 years. The appellants have undergone sentence of

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imprisonment for about 8 days and the appellants are presently on bail. Be that as it may, having considering the totality of the mitigating circumstances, this Court is inclined to reduce the sentence imposed upon the accused/appellants to the sentence already undergone, however, the fine amount of Rs. 1,000/- is enhanced to Rs. 2,000/for each appellants which shall be deposited within a period of 90 days, failing which appellants to undergo simple imprisonment for 15 days. Out of total fine amount as imposed by the learned trial Court and enhanced by this Court, Rs. 2,000/- shall be paid to complainant Surita Bai (Pw-7) after due verification as compensation in terms of Section 357 of Cr.P.C. The appellants are reported to be on bail. The bail bond shall remain in operation for next 6 months in view of the Section 437 (A) of the Cr.P.C.

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The criminal appeal is thus, allowed in part. Since, the appellants are already in bail, no order regarding their release etc. is needed to be passed.

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SSd/- (Sachin Singh Rajput) Judge

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H.Ansari

Toman Lal Sahu v. State of Chhattisgarh

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Toman Lal Sahu v. State of Chhattisgarh

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