Dharamveer Tanti Vs The State of Bihar

Appearance : For the Petitioner/s : Mr. Ram Prasad Singh For the State : Mr. Pramod Kumar Pandey For the O.P. No.2 : Mr. Mahendra Thakur, Advocate Mr. Vijay Kumar, Advocate

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER

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8 01-02-2024

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Heard learned counsel for the petitioners and learned A.P.P for the State as well as learned advocate for the opposite party no.2.

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The convicts in Case No. 932(C) of 2011 under the charge of Section 498(A)/34 of the Indian Penal Code passed by the learned Additional Chief Judicial Magistrate-II, Biharsharif at Nalanda which was subsequently affirmed in Criminal Appeal No.33 of 2017 by the learned Sessions Judge-6th, Nalanda or the petitioners before this Court assailing the order of conviction and sentence confirmed by the Trial Court.

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After holding the petitioners convicted under Section 498(A)/34 of the I.P.C. they were sentence to imprisonment for two years and also to pay find of Rs.5,000/each, in default. Further simple imprisonment for three months.

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Though, the learned advocate for the petitioners extraneously has placed the evidence adduces by the private opposite party/complainant and witnesses on behalf of the complainant, this Court at the outset likes to remind that the revisional court has no jurisdiction to reapprise the evidence on record. It is the duty of the revisional court to consider and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfy itself or himself as to the correctness, legality or propriety of any findings, sentence or order and as to the regularity of the proceedings.

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So far as the regularity of the proceeding being Complaint Case No.932(C) of 2011, neither of the parties has made any submission. It is contended on behalf of the petitioners that both the Courts below failed to appreciate that the complainant voluntarily left her matrimonial home, there was no demand of dowry, the complainant failed to examine any independent witnesses, the witnesses who were examined on

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behalf of the complainant beside her is her parents. They are obviously interested in the outcome of the case, therefore, the Trial Court failed to consider that in the absence of independent witness supporting the case of the complainant the accused persons should not be held guilty.

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It is further contended by him that both the Trial Court as well as the court of appeal failed to consider that there were material discrepancies in the impugned judgments. In the petition of complaint, the complainant alleged that she was tortured physically and mentally by the accused persons on demand of further sum of Rs.10,000/- and a bycycle. However in evidence she stated that the accused persons demanded Rs.80,000/- as dowry. In view of such discrepancies, neither the case of the complainant nor the evidence on behalf of her should be taken into consideration.

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The learned advocate for the petitioners also draws my attention to an order dated 25.06.2014 wherein the trial court confirmed anticipatory bail of the petitioners observing interalia that it was the complainant who is not willing to restore conjugal life with her husband, the principles petitioner herein, amicable settlement was attempted by local people in Panchayat of the locality where the complainant present and resides they

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tried to settled the dispute but failed.

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The learned Trial Judge did not consider such evidence on record. On the other hand, he proceeded to hold the accused guilty on certain extraneous grounds.

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The learned advocate for the opposite party no.2/complainant, on the other hand submits that both the courts below on due consideration of evidence on record found the accused persons guilty for committing offence under Section 498A/34 of the I.P.C. There is no reason to alter the concurrent view of both the courts below, in support of his contention he refers to an observation made by the Trial Judge in paragraph no.11 is quoted below :-

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“ eSaus iqu% vfHkys[k dk voyksdu fd;k ftlls fofnr gksrk gS fd vfHk;qDrksa ds fo:) vfHkys[k ij dksbZ nks’kflf) dk izek.k ekStwn ugha gSA ijarq muds }kjk dkfjr fd;k x;k vijk/k lekt esa “kkafr] lnHkko ds izfrdwy gS rFkk vfHk;qDrksa }kjk fof/k ,oa uSfrd uhfr ds vuqlkj fu;r drZO;ksa dk lE;d fuoZgu ugha fd;k x;k gS ftlls ifjokfnuh foo”k gksdj nj&nj HkVdus ds etcwj gSA fgUn fof/k esa fookg ,d laLdkj gS rFkk blesa yM+dh vius iwoZ ifjokj dks NksM+dj llqjky ds ifjokj esa tkrk gSA tgka rd llqjky okyksa dk fof/kd ,oa uSfrd nkf;Ro gS fd os mldks iwjs eku&lEeku ds lkFk j[ks ,oa mldk ;kFkksfpr Hkj.k&iks’k.k djsa ftldk vfHk;ksDrksa }kjk lE;d~ :i ls fuoZgu ugha fd;k x;k gS cfYd oknh dks ekaxs x;s ngst dh jde iwjk uk djus ij ekj&ihV dj izrkfM+r dj ?kj ls fudky fn;k x;k gS tks fuf”Pkr gh vekuoh; dR; gSA bl ifjLFkfr esa vfHk;qDrksa ds }kjk dkfjr fd;s x;s ,oa nks’kflf) ik;s x;s vijk/k varxZr /kkjk& 498,@34 ds ltk esa fdlh izdkj dh mnkjrk cjrk Tkkuk lehphu izrhr ugha gksrk gSA vr% vfHk;qDrksa /keZohj rkarh] ctuUnu rkarh ,oa mfeZyk nsoh dks Hkk0n0fo0 dh /kkjk&498,@34 ds fy, nks lky dk

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dkjkokl ,oa ewY;&5000@& :i;s vFkZ n.M ls nf.Mr fd;k tkrk gSA vFkZ n.M tek uk djus dk fLFkfr esa vfHk;qDrksa dks 3 ekg dk vfrfjDr lk/kkj.k dkjkokl Hkqxruk gksxkA esjs fopkj esa vfHk;qDrksa ds }kjk dkfjr fd;s x;s vijk/k ds fy, mijksDr ltk i;kZIr ,oa lehphu gSA vFkZn.M dh jkf”k dks ihfM+rk dks {kfriwfrZ ds :i esa vnk dh tk;sxhA

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It is needless to say that all types of ‘cruelty’ do not come within the ambit of Section 498A of the I.P.C., cruelty has been defined in the explanation to Section 498A of the I.P.C.

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For the purposes of Section 498A of the I.P.C., ‘cruelty’ means;

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(a) Any willful conduct which is of such a nature as his likely to drives the women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the women); or

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(b) Harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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In the instant case, the complainant tried to make out a case on explanation (b) of Section 498A of the I.P.C.. However, in order to prove harassment with a view to coercing her to meet any unlawful demand for any propriety or valuable security was required to be consistently proved. In the instant

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case, marriage of the complainant was solemnized three years prior to the date of lodging complaint. Complaint was lodged in the year 2011, therefore, it may be presumed that her marriage was solemnized sometimes in the year 2008-09. It is alleged by the complainant that after 10 days of marriage, the accused persons demanded a sum of Rs.10,000/- and a cycle. This Court fails to digest that the complainant had borne harassment within the meaning of explanation (b) to Section 498A of I.P.C. for about 3 years on alleged demand of dowry. She did not mention the matter to any authority prior to lodging the complainant, no diary was made by her or her parents before the local police station, even the neighbors of her matrimonial home or her paternal home did not come forward to support her case. On the contrary she exaggerated her case by deposing that she was harassed on demand of Rs.80,000/-. The learned Trial Judge recorded some sermons, like, offence under Section 498A I.P.C. perishes peace in the society mutual relationship between husband and wife and the matrimonial relations in a marriage under Hindu Marriage Act should not make such cruel treatment to his wife as under the Hindu Marriage Act, marriage is a sacrament.

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All these do not prove a charge under Section

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498A of the I.P.C. These are the extraneous considerations which laid the learned Magistrate to hold the petitioners guilty for committing offence under Section 498A of I.P.C. The appellate Court has also failed to consider the case properly.

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For the reasons stated above, this Court is of the view that both the judgments passed by the Court below is liable to be quashed and set aside and accordingly, the petitioners are acquitted of the charge under Section 498A/34 of the I.P.C., said at liberty and they be released from their respective bail bonds.

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