Janki Devi Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 271 of 2019

Janki Devi, aged about 48 years, wife of Kishore Sahu, resident of village Bhandra, P.O. + P.S.- Bhandra, District Lohardaga.

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… … Petitioner

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Versus

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The State of Jharkhand

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Manmohan Sahu, son of Late Chamar Sahu, resident of village Bhandra, P.O. + P.S. Bhandra, District Lohardaga. Presently residing at Hehal, P.O. Hehal, P.S. Sukhdeonagar, District: Ranchi. … … Opposite Parties

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Anil Kumar Sinha, Advocate For the Opp. Party-State : Mr. Rajesh Kumar, Advocate For the Opp. Party No.2 : Mr. A.K. Sahni, Advocate : Mr. Ajit Kumar, Advocate ---

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14 /19.09.2024

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1. The learned counsel for the parties are present.

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2. This revision petition has been filed challenging the judgment dated 13.02.2017 passed by learned Sessions Judge, Lohardaga in Criminal Appeal No.13 of 2014 whereby the conviction of the petitioner under Section 498A of the Indian Penal Code has been upheld, but sentence has been modified. The petitioner is the informant of the case.

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3. The appellate court while dismissing the appeal has modified the sentence and has directed the Opposite Party No.2-Manmohan Sahu to pay an amount of Rs.50,000/- to the petitioner for the case being Bhandra P.S. Case No. 29 of 2003 corresponding to T.R. No. 42 of 2014 and G.R. No. 372 of 2003.

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4. By the impugned common judgment, two cases between the same parties have been disposed of by the learned appellate court.

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5. The learned counsel for the petitioner has submitted that the opposite party No. 2 being the brother-in-law has been convicted for offence under section 498-A of the Indian Penal Code by the learned

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trial court and was sentenced to undergo simple imprisonment for three years, but the appellate court has modified the sentence to fine.

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6. The learned counsel has submitted that the as per the provisions of Section 498-A of the Indian Penal Code, the punishment is imprisonment and fine and therefore, there was no occasion for the appellate court to modify the sentence and confined it to payment of fine only. The learned counsel while giving the background of the case has referred to the finding of the learned trial court and has submitted that there was consistent evidence on record that the petitioner was not permitted to live with her husband who was deaf and dumb and she was also assaulted.

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7. The learned counsel has further submitted that though the charge was also framed under Section 354 of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act against the opposite party No.2, the brother-in-law, but he was acquitted by the learned trial court on the said charges and he was convicted only under Section 498-A of the Indian Penal Code. While referring to the provisions of Section 498-A of the Indian Penal Code, the learned counsel has submitted that the conviction of the opposite party No.2 would call under the Explanation (a) to the section. He further submits that there was physical assault as well as mental cruelty as the petitioner was deprived from living with her husband and therefore, the sentence which has been modified by the learned appellate court calls for interference.

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8. The learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has submitted that the opposite party No. 2 has remained in custody for a period about 3 months. However, he is not aware about the exact period of custody. He has submitted that since the opposite party No. 2 has remained in custody for some time, it cannot be said that the opposite party No. 2 has not served any sentence of imprisonment. The learned counsel submits that considering the facts and circumstances of this case, the impugned judgment modifying the sentence does not call for any interference.

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9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the opposite party No. 2 and one co-accused had faced trial for offence under section 498-A/354 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

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10. On the basis of F.I.R being Bhandra P.S Case No. 29 of 2003 dated 27.10.2003, the prosecution story was that the petitioner got married with Kishore Sahu 21 years ago. After marriage, she went to her in-laws’ house where she lived for four years. During this period, the father-in-law of the petitioner tried to misbehave with the her like husband. The accused persons did not allow the petitioner to come in contact with her husband. The accused persons were in fear that if the informant comes in contact with her husband, she may get pregnant. The accused persons did not allow her to talk to her husband at all and they tortured her in different ways. After that she went to her parents’ place where she remained for 8 to 9 years. Five years ago from the date of the incident, some persons went to her parents’ place and brought her back and they promised her that there would be no more torture upon her. Then she came to her matrimonial home. When she came in contact with her husband, she got pregnant. During this period, there was torture by her in-laws which continued.

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11. In the year 2000, a girl child was born and one Chamar Sahu tried to tease her when she remained alone. Ultimately, the informant informed the matter at her parents’ house and then the brother of the informant came and called Panchayati . In the Panchayati, her fatherin-law promised in writing to give expenses for her livelihood. After Panchayati, they did not fulfill their promise and demanded Rs.50,000/- as dowry. On 17.09.2003, when the informant demanded for the expenses for her livelihood, then the accused persons beat her up before the local persons and the local persons had seen the occurrence.

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12. On the basis of such incident, the FIR was registered under Section 498-A/354 of the Indian Penal Code and Sections 3 and 4 of

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Dowry Prohibition Act. The charge sheet was submitted under the aforesaid sections and the witnesses were examined. Ultimately the trial court considered the materials on record and came to the finding as follows:

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“All most all the PWs submitted before the court that there was dispute between Janki Devi and her in-laws. Here it is important that most of PWs are independent witness. The statement of informant well corroborated with the F.I.R. I.O of the case well establish the place of occurrence which is at Bhandra near to Lohardaga-Bhandra main road. So far as regard to sec-498A is concern it is necessary that cruelty must be caused by the in-laws. PW-6, PW-9, PW-11, PW-12, and PW-13 all submitted before the court that there was Mar-pit was going on to the Janki Devi by her in-laws. PW-13 submitted that Janki Devi came and show him marked of injuries caused by Mar-pit by her in-laws. Further victim of the case Janki Devi said that she was not allowed to talk with her husband. Which was well supported by the PWs. Which was further supported by the DW-1. DW-1 in his cross examination submitted that Janki Devi wants to live with her in-laws but she was not permitted to live with her husband. This statement of DW-1 strengthen the prosecution case that Janki Devi was not allow to live with her husband against her will by her in-laws. Depriving any woman not to live with her husband is also a kind of torture. In this prosecution able to establish the factum of cruelty caused to Janki Devi by her in-laws. So far as regard to sec-354 of I.P.C. is concern none of the prosecution witness had submitted that Manmohan Sahu had outraged the modesty of Janki Devi. Hence prosecution has failed to establish the factum of outraged the modesty. So far as regard to sec-3 of D.P.Act is concern none of the prosecution witness said before the court that whether anything was given at the time of marriage. Hence prosecution has also failed to establish the aforesaid sec. So far as regards to sec-4 of D.P. Act is concern demand of dowry is to be made to the guardian/parents/other relative bride or bridegroom. It the settled law is that demand must made in immediate proximity of marriage. In this case marriage took place approximately 20/25 year ago. Therefore, in present fact and circumstance this sec will not be applicable. So far submission made by the Ld. Defence Counsel that no torture was met out by the accused persons stands nowhere because all the prosecution witnesses supported the factum of torture and even DW-1 also accepted it. DW-1 submitted before the court that Janki Devi wants to live with her husband but she was not allowed to live with him. It clear from the deposition some of prosecution witness had seen the occurrence of Mar-pit. Non

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examination of doctor will not fetal the prosecution case in given fact and circumstances. Judgment had been submitted by the Ld. Counsel of Honorable Supreme Court and various high courts which is not similar to the fact of this case.

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In backdrop, it is evident from the forgoing fact and the discussion of evidence made there of the has been able to prove charge u/s 498-A of I.P.C. against the two accused persons namely Manmohan Sahu and Nirash Devi beyond the shadow of all reasonable doubt. Hence after considering whole fact and circumstances the accused persons were convicted for the offence u/s 498-A of I.P.C. Their bail and bail bond were hereby cancelled and they are taken into judicial custody”

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13. The learned trial court convicted the opposite party No.2 for offence under Section 498-A of the Indian Penal Code and declined to give benefit of Probation of Offenders Act and sentenced both the accused persons namely, Manmohan Sahu and Nirash Devi to undergo simple imprisonment for a period of three years.

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14. Before the appellate court, the convicted persons Manmohan Sahu and Nirash Devi filed an appeal and as per the appellate court judgment dated 13.02.2017, Nirash Devi expired during the pendency of the appeal and the appeal was treated as abated against her.

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15. Before the appellate court, the Opposite Party No.2 submitted that instead of hearing the appeals on merit, it may be decided only by way of modification of sentence. He expressed that he was ready and willing to pay an amount of Rs. 50,000/- as victim compensation in each case and total being Rs.1,00,000/- in both cases.

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16. The learned appellate court ultimately modified the sentence with a direction to the opposite party No. 2 to pay an amount of Rs.1,00,000/- (Rs.50,000/- for this case) in favour of the Informant within a period of 15 days and if he does not pay the amount, he will have to undergo simple imprisonment for one year.

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17. This Court finds that essentially the grievance of the petitioner was that her in-laws did not permit her to stay and come in contact with her husband and they were not permitting the petitioner to live with her husband. The trial court held that depriving any woman from living with her husband is also a kind of torture and convicted the

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opposite party No.2 and the co-accused for the offence under Section 498-A of the Indian Penal Code. The fact has also been recorded that the marriage had taken place about 20-25 years ago and the FIR itself reveals that a girl child was also borne out of the wedlock. It is not in dispute that the opposite party no.2 has remained in custody for some period in connection with the case.

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18. Considering the totality of facts and circumstances of this case, this Court is of the considered view that although the appellate court has modified the sentence and has directed for payment of Rs.50,000/in the present case to the petitioner with default sentence, but at the same time, it cannot be said that the petitioner has not undergone any sentence in connection with the present case. As per the records of the case, the opposite party No.2 has certainly remained in custody for some period. The records of the case received from the trial court reveal that the opposite party No.2 had surrendered before the learned trial court on 16.02.2005 and his bail was rejected and thereafter he was ultimately granted bail on 18.03.2005 when his bail bond was accepted.

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19. In view of the aforesaid facts and circumstances, the argument of the learned counsel for the petitioner that no sentence with regard to punishment of sending the opposite party No. 2 to jail has been given to the opposite party No. 2 is not substantiated by the records of this case. Considering the totality of the facts and circumstances of the case, this Court finds no reason to interfere with the impugned judgment, so far as it relates to Criminal Appeal No.13 of 2014 arising out of Bhandra P.S. Case No.29 of 2003.

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20. Accordingly, this criminal revision petition is dismissed.

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21. Pending I.A., if any, is closed.

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22. Let a copy of this order be communicated to the court concerned through ‘FAX/E-mail’.

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(Anubha Rawat Choudhary, J.)

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Rakesh/-

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