High Court allowed appeal and set aside conviction and sentence under IPC 498A and Dowry Prohibition Act, discharging appellant from bail bonds due to reliance solely on second-hand testimony and doubtful complaint history.
Set aside conviction and sentence; discharged appellant from liability of bail bonds.
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Cr. A. No. 221 of 2003
[Arises out of judgment of conviction and order of sentence dated 20/22.1.2003 passed by learned Additional District and Sessions Judge, Fast Track Court No.IX, East Singhbhum, Jamshedpur in S.T. No. 215/94]
Kamal Kumar Nishad @ Kamal Kumar son of Late Umedi Ram Nishad, resident of Kanchan Nagar, Near East Plant, Bustee, Verma Mines police station-Berma Mines, Town-Jamshedpur, District-Singhbhum (East).
--Versus--
The State of Jharkhand …. Respondent
PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. A.K. Chaturvedi, Advocate. For the State : Mr. Sanjay Kumar, A.P.P.
J U D G M E N T
By Court : The instant appeal arises out of judgment of conviction and order of sentence dated 20/22.1.2003 passed by learned Additional District and Sessions Judge, Fast Track Court No.IX, East Singhbhum, Jamshedpur in S.T. No. 215/94, whereby and whereunder, the appellant has been found guilty under Section 4 of the Dowry Prohibition Act and also under Section 498A of the Indian Penal Code and the appellant has been sentenced to undergo rigorous imprisonment for 6 months and fine a sum of Rs.1,000/- for an offence under Section 4 of the Dowry Prohibition Act and in default of payment of fine, he has been further sentenced to undergo simple imprisonment for 15 days. Under Section 498-A of the Indian Penal Code, the appellant has been sentenced to undergo rigorous imprisonment for 2 years and fine a sum of Rs.1,000/- and in default of payment of fine further sentence to undergo simple imprisonment for a period of 15 days. However, both the sentences have been ordered to run concurrently.
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of 15 days in case of default in making payment of fine. For the offence under Section 498-A of the Indian Penal Code, convict Kamal Kumar Nisad was sentenced to undergo rigorous imprisonment for two years and fine of Rs.1000/-. He has further to undergo simple imprisonment for a period of 15 days in case of default in making payment of fine. Hence, this appeal. 6. PW-1 Bhagwani is the father of victim Kamla Bai. He has deposed that she was married in 1990 with Kamal Kumar and that after marriage, she lived with her husband at Qtr. No.4, Cable Town, Nim Road, Jamshedpur. He has further deposed that on 04.09.90 Kamal Kumar had come to his house and laughingly told that Kamla is not there. Then he along with one Babulal, who is a retired person, went to Bermamines Police Station and gave written complaint there. He said that report was written by Babulal, on which he had given his signature. Further he has deposed that before 04.09.90, about 15 days ago, Kamla had come along with her husband to her parents house and at that time, she was well, but, when she came after one week, she said that her mother-in-law and husband are making demands for TV and vehicle. He has further deposed that he could not give TV or vehicle and during marriage, he had given cycle. He has recognized the mother-in-law of Kamla, who is present in dock. He has further deposed that he made efforts to trace his daughter and when his daughter had come there was wound on her face which was stitched and on asking from her, she said that the assault was made because of demand for TV and vehicle. He has further deposed that his daughter has been married for about five months. In the cross examination, he has deposed that on 04.09.90 he had not gone to the police station but he had done so on 05.09.90. Before going to police station, he had searched his daughter and had gone to the house of one Bishnu. He had also gone to the house of Dhurwa and asked them about his daughter. They informed that his daughter had not come. He has further deposed that he went to his ancestral village in Chattisgarh. In his cross examination, he has further deposed that when his daughter came for second time, there was stitch on her mouth but he had not taken her to any doctor. Even his son-in-law had come on that day. When his daughter informed him that his son-in-law had assaulted her, at that time, his wife
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was also present. He has further stated that the police did not come to his house regarding his case and it is wrong to say that he did not give any report to the police on 05.09.90. He has further deposed that he had given only one written complaint. He has further deposed that it is wrong to say that Kamla has disappeared.
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undergo simple imprisonment for a period of 15 days in case of default in making payment of fine. Learned counsel has further submitted that only three witnesses have been examined in this case. Learned counsel has tried to throw doubts on the validity and genuineness of the written report itself. Learned counsel has submitted that it has come on record in the deposition of PW-1 that he had gone to the police station on 05.09.90 itself and then given his statement, which apparently is reflected in the deposition itself. Learned counsel has submitted that the matter was again reported on 23.9.90; so he has said that what has happened to the first information and it raises questions on what information was actually given to the police on 05.09.90. Learned counsel has submitted that earlier information that was given by the informant to the police has not been brought on record. If that information is not brought on record, appellant will be grossly prejudiced. On this ground only this witness is not reliable. Learned counsel has further submitted that the conviction of the appellant is apparently relied on the sole witness of the informant, PW-1, who has reported the matter to the police station. -Learned counsel has questioned the information that has been given to the police station because he has said that it seems there are two sets of information, so it throws some doubt regarding whatever was complained to the police and on the basis of his evidence in court, appellant has been convicted, so convicting him only on the basis of solitary witness is not sufficient. Learned counsel has further submitted that on the same set of evidence two other persons have been acquitted, though the mother of this appellant was given a token punishment under Section 4 of the Dowry Prohibition Act but under Section 498-A of the Indian Penal Code she was not imposed any sentence, though it has come in the evidence, as reflected in the judgment, that she had also made demand of dowry for TV and vehicle, so the benefit as given to the mother, the same should also be extended to this current appellant. Learned counsel has then argued that from the deposition of PW-1, it does not appear that there was any harassment for the demand made. Only there is reference to demand. Learned counsel has further submitted that evidence is indirectly noted because whatever has been relied upon by the learned court-below is relied
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upon in indirect manner because father of the girl says that he heard accusations from his daughter and then he has reported the matter and on that basis, the Court has proceeded to convict the appellant under Section 4 of the Dowry Prohibition Act and also under Section 498A of the Indian Penal Code.
“ 60. Oral evidence must be direct. - Oral evidence must, in all cases whatever, be direct; that is to say-
If it refers to a fact which could be seen, it must the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds: ...”
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traceless and earlier she (daughter) had narrated about the harassment to his father, so there is link in the circumstances and the stitch wound on the face also indicates that there was harassment and demand of TV and vehicle as dowry, therefore, conviction of the appellant deserves to be uphold.
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Sessions Judge, Fast Track Court No.IX, East Singhbhum, Jamshedpur in S.T. No. 215/94, is, hereby, set aside. Appellant is discharged from the liability of his bail bonds.
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi, The 4th August, 2016, SB/ NAFR...
3 issues framed by the court
Whether the conviction relied solely on the father's second-hand account of the daughter's statements without the victim being examined or doctor testimony is legally sufficient.
Whether the discrepancy in dates within the written complaint report creates fatal ambiguity prejudicing the appellant.
Whether the Appeals Court should give the benefit of doubt when direct evidence of harassment and injury is absent.
Kamal Kumar Nishad @ Kamal Kumar
The State of Jharkhand
RATNAKER BHENGRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
