Jharkhand High Court
Sumanto Chatterjee @ Sumanta ... vs The State Of Jharkhand on 23 January, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 821 of 2020
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Sumanto Chatterjee @ Sumanta Chatterjee ..... Petitioner Versus The State of Jharkhand ..... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Bharti Kumari, Advocate
Ms. Sharad Kaushal, Advocate
For the State : Mr. Vineet Kumar Vashistha, Spl.P.P.
For the Complainant
: Mr. Saibal Kr. Laik, Advocate
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C.A.V. on 14.07.2023 Delivered on 23.01.2024
This Criminal Revision Application has been filed by the petitioner challenging the Judgment dated 23.09.2020, passed by Sri Syed Saleem Fatmi, Additional Sessions Judge-XII, Dhanbad in Criminal Appeal No. 159 of 2019, whereby the learned Additional Sessions Judge- XII, Dhanbad has dismissed the Criminal Appeal affirming the judgment of conviction and order of sentence dated 29th July, 2019, passed by Ms. Ritu Kujur, Judicial Magistrate, Ist Class, Dhanbad in C.P. Case No. 1666/2010 holding the petitioner guilty under Section 498 A of the I.P.C. and thereby sentencing him to undergo S.I. for two years and to pay a fine of Rs.2,000/- for the offence under Section 498 A of the I.P.C. and in case of default in payment of fine the petitioner was directed to additional S.I. for two months.
2. The Case of the complainant in brief is that the complainant's marriage was solemnized in accordance with Hindu Customs with appellant Sumanto Chatterjee on 10.05.2005. The parents of the complainant was 2 compelled to give to accused Rs.1,70,000/- cash and 50,000/- for Hero Honda motor cycle, other house hold articles, furniture and jewellery of gold and silver were given at the time of marriage. After marriage, the complainant went to her Sasural and started leading her matrimonial life and gave birth to a female child on 10.01.2007. Thereafter behavior of accused persons changed in various ways. Complainant was thereafter asked by accused persons to bring money for maintenance of the child. She was compelled to demand Rs. 10,000/- per month and in between the only brother of the complainant died on 09.04.2009 in an accident then the accused persons started torturing the complainant mercilessly for Rs. 2 lacs for constructing home in order to grab all the properties of the complainant's parent as there is none in the family of the complainant's parents. It is further stated that when the demand was not fulfilled by the parents of complainant then accused persons on 02.06.2010 ousted her along with the child from her Sasural after brutally assaulting her and the complainant anyhow came to her Maika. It is further stated that complainant told about the fact then father of the complainant agreed to pay Rs.10,000/- per month, but inspite of that the accused persons started demanding Rupees Two lacs for construction of the house besides Rs.10,000/- and the father of the complainant denied to fulfill the demand of Rupees Two lacs, then accused persons threatened the complainant that if she wanted to live in her Sasural, she had to bring the same from her parents and forcibly took away the child of the complainant. Thereafter, complaint case was filed by the 3 complainant against the husband and mother-in-law of the complainant.
The Court below, after conducting inquiry took cognizance against the husband and mother-in-law of the complainant under Section 498 A/406 of the I.P.C. and Section 3/ 4 of the Dowry Prohibition Act.
3. Heard Mr. Sharad Kaushal, learned counsel for the petitioner, Mr. Vineet Kumar Vashistha, learned A.P.P. for the State and Mr. Saibal Kumar Laik, learned counsel for the complainant.
4. Mr. Sharad Kaushal, learned counsel for the petitioner, assisted by Ms. Rishi Bharti, learned counsel submits that the impugned judgments and order passed by the learned Courts below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Courts below have committed illegality by placing reliance upon the evidence of the witnesses of the complainant, who were the interested witnesses. It is submitted that evidence of C.W.1, C.W.2 and C.W.3 were contradictory to each other on the point of assault and torture. It is submitted that the complainant has stated of having been assaulted by the petitioner and of a blood clot mark on her face due to the same but not a single photograph or any piece of evidence was brought before the learned Court below. It is submitted that the court below has committed illegality by observing that after the birth of the female child, the nature of the petitioner had changed. It is submitted that the demand of dowry and torture allegedly made on behalf of the appellant are false and concocted. It is submitted that the allegation regarding the petitioner going to the complainant's house 4 and trying to take away the child and leaving from there only after 3-4 people came to the rescue of the complainant also falls under the cloud of suspicion, because none of those people have been examined at any point to prove the credibility of the statement. It is submitted that the complainant had also filed a maintenance case and the amount of maintenance was directedly being debited from the petitioner's salary until his compulsory retirement from the service on ground of conviction in the instant case. It is submitted that the petitioner has lost his government job on the grounds of conviction in the false case, and now he is not in a position to take care of his old mother and his family including his daughter. It is submitted that the reality is that the complaint case was filed after the death of the only brother of complainant in 2009 because she wanted the petitioner to come and stay with her parents as a 'Ghar Jamai' and when he refused to do the same, the complaint case was filed.
5. Learned counsel for the petitioner placed reliance upon the judgments passed in the following cases:-
(i) AMIT KAPOOR Versus RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460,
(ii) SUJIT BISWAS Versus STATE OF ASSAM, reported in (2013) 12 SCC 406
(iii) GURUCHARAN SINGH Versus STATE OF PUNJAB reported in (2017) SCC 433,
6. On the other hand, Mr. Vinit Kumar Vashistha, learned Spl.P.P. has submitted that the impugned judgments and order passed by the court below 5 are fit and proper and no interference is required from this Court. It is submitted that both the learned Courts below have affirmed the conviction of the petitioner for committing the offence punishable under Section 498 (A) of the I.P.C. It is submitted that the petitioner, who is a Government servant, has tortured and assaulted the complainant due to non-fulfillment of demand of dowry. It is submitted that the complainant and her witnesses have fully supported the case of demand of dowry and assault made by the petitioner upon the complainant and as such no interference is required in the impugned judgments of conviction and order of sentence passed by the learned Court below and hence this Criminal Revision Application may be dismissed.
7. Learned counsel for the complainant, after adopting the submission made on behalf of the learned Special P.P., has further submitted that this criminal revision application is devoid of merit. It is submitted that the complainant was subjected to torture and assault due to non-fulfillment of demand of dowry. It is submitted that C.W.1, C.W.2 and C.W.3, namely Asim Kumar Mukhopadhaya, Malobika Mukhopadhaya and Moumita Chatterjee (Complainant) respectively fully supported the case of the complainant on the point of demand of dowry and assault made by the petitioner upon the complainant. It is submitted that non-examination of independent witness is not fatal to the complainant's case. It is further submitted that C.W.1, i.e. the father of the Complainant has stated during his evidence that at the time of marriage he was compelled to give dowry and after marriage also the demand had continued and he had 6 agreed to pay Rs.10,000/- per month to meet the expenses of the girl child but despite that there was no sign of improvement in the behaviour of the petitioner. It is submitted that the petitioner had demanded Rs. 2 lacs for construction of his house from him, i.e. C.W. 1, although his family was hit by a tragedy due to the untimely death of the brother of the O.P. No. 2 in a road accident. It is further submitted that the petitioner cannot insist for reappreciation of evidence in the Revisional Court like the Appellate Court. It is submitted that revision is confined to jurisdictional error, error in law, of perversity and not beyond that. It is submitted that non- production of injury report does not belie the fact of assault. It is submitted that from bare perusal of Section 498 A of the I.P.C., it is clear that an offence under Section 498 A I.P.C. has been committed where the husband or relative of the husband of a woman subject her to cruelty. It is submitted that C.W.2, who is the mother of the complainant has fully supported the case of the complainant regarding demand of dowry and also for maintenance of Rs. 10,000/- per month after birth of the girl child and also for demanding Rs.2 lacs for construction of the house by the petitioner and both C.W.1 and C.W.2 has fully stood the test of cross- examination. It is submitted that C.W.3 is the complainant herself and she had narrated in details regarding torture inflicted upon her by the petitioner during her evidence and she had also stated regarding demand of Rs.10,000/- per month from the parents of the complainant for the maintenance of the female child. It is submitted that even C.W.3 has fully supported the fact 7 that even after death of her brother in the year 2009 the petitioner and his family members have assaulted her and ousted her from her matrimonial home on 02.06.2010. Apart from this, even her husband along with two other persons came to her Maike and demanded money on 29.08.2010.
8. Learned counsel for the complainant has relied upon the judgments passed in the following cases:-
(i) Gumansinh alias Lalo alias Raju Bhikhabhai Chauhan and Another Versus State of Gujarat reported in 2021 SCC Online Supreme Court 660
(ii) 2019 (2) JBCJ 314
(iii) STATE REPRESENTED BY THE DRUGS INSPECTOR Versus MANIMARAN reported in 2019(13) SCC 670
(iv) Bir Singh Versus Mukesh Kumar reported in 2019 (4) SCC 197 It is submitted that in view of the above, this Criminal Revision Application may be dismissed.
9. Perused the Lower Court Records of this case, the records of the Criminal revision application, written submissions filed on behalf of the petitioner and the complainant and considered the submissions of both the sides.
10. It appears that the marriage between the petitioner and O.P. No. 2 was solemnized on 10.5.2005 and both the sides were living properly. In the meantime, one female child was born out of the marital wedlock of the parties on 10.01.2007. However, on 09.4.2009 when 8 the brother of the O.P.No. 2 had died in a road accident then the complainant started living in her parental home for a short period.
11. It transpires that on 09.09.2010 the complainant had filed the complainant case on the ground of her ouster from her matrimonial home on 02.06.2010 along with her child and it has been alleged in the complaint petition that petitioner had demanded Rupees 2 lacs from her for constructing the house in order to grab all the properties of the parents of the complainant as there is none else in the family of her parents. She has also alleged of having written several letters to her parents from her matrimonial home regarding demand of dowry made by the accused persons and ultimately she was ousted from her matrimonial home along with her female child on 02.6.2010 after alleged brutal assault. Thereafter, she was treated by the Doctor, however, on 29.8.2010 the accused persons, i.e. the petitioner and his mother Smt. Chaya Chatterjee (acquitted by the learned court below) allegedly came to her Maike with two unknown persons on the request of the complainant's parents for negotiation and the parents of the complainant became ready to give Rs.10,000/- per month but the accused persons started demanding Rs.2 lacs for construction of home besides Rs.10,000/- per month and when her father refused to pay the same then the accused persons forcibly took away the baby of the complainant and threatened her of dire consequences and fled away with the Alto Car by which they came.
12. It transpires that the complainant was examined on solemn affirmation (i.e. S.A.) on 28.09.2010 9 and thereafter two persons, namely Asim Kr. Upadhyay, Malobika Upadhyay and Khoka Pall were examined under Section 202 Cr.P.C. during enquiry on 29.11.2010, 10.01.2011 and 14.02.2011 respectively.
13. Thereafter, vide order dated 20.04.2011, the learned court below found sufficient material against the petitioner and one Smt. Chhaya Chatterjee to proceed under Section 498 A/406 of the I.P.C. and Section 3/ 4 of the Dowry Prohibition Act and process was issued under Section 204 Cr.P.C. against both the persons.
14. It transpires from the L.C.R. that the petitioner Sumanta Chatterjee was granted anticipatory bail by the Hon'ble Supreme Court in Criminal Appeal No. 1011 of 2015 vide order dated 04.08.2015.
15. It transpires from the Lower Court Record that charges were framed against the petitioner and one Chaya Chatterjee under Section 406, 498 of the I.P.C. and Section ¾ of the Dowry Prohibition Act on 06.04.2018 by Ms. Ritu Kujur, Judicial Magistrate, Ist Class, Dhanbad and to which they pleaded not guilty and claimed to be tried.
16. It transpires that complainant got examined three witnesses in support of his case, who are as follows:
(i) C.W. No.1 is Asim Kumar Mukhopadhaya-
Father of the complainant
(ii) C.W. No. 2 is Malobika Mukhopadhaya-
Mother of the complainant,
(iii) C.W. No.3 is Moumita Chatterjee, i.e. the Complainant herself.10
17. However, no document was marked as Exhibit on behalf of the complainant.
18. After closure of the evidence of the complainant, after the charge, the petitioner and one Chhaya Chatterjee were examined under Section 313 Cr.P.C. on 14.03.2019 by the Judicial Magistrate, Ist Class, Dhanbad and to which they denied the circumstances put forth before them.
19. Neither any defence witness has been examined on behalf of the petitioner nor any document has been marked as Exhibit.
20. Thereafter, the learned court below i.e. Ms. Ritu Kujur, Judicial Magistrate, Ist Class, Dhanbad has convicted the petitioner for the offence under Section 498-A of the I.P.C. and sentenced him to undergo S.I. for 24 months and to pay a fine of Rs. 2,000/- although the court below has acquitted the petitioner for the offence under Section 406 of the I.P.C.
The court below has further acquitted Smt. Chaya Chatterjee for the offence under Section 498 A and 406 of the I.P.C.
21. Thereafter, the petitioner had preferred appeal, bearing Criminal Appeal No. 159 of 2019, which was dismissed vide judgment dated 23rd September, 2020 by the learned Appellate Court, hence the present revision has been filed.
22. It transpires that after dismissal of the appeal, petitioner has preferred this Criminal Revision Application before this Court on 04.11.2020-28.11.2020.
23. It appears that the petitioner had surrendered on 18.04.2022 before the learned Court 11 below in the light of the order dated 14.09.2021 passed by the Co-ordinate Bench of this Court and also in the light of order dated 23.03.2022, passed by this Court.
24. It transpires from the record that the petitioner was granted bail vide order dated 22.06.2022 passed by this Court upon consideration of the fact that the petitioner is an employee of Railways in the State of West Bengal. This Court, in view of submission of the parties, referred the matter before the Secretary, D.L.S.A., Dhanbad for mediation but the mediation between the parties had failed, however, on the request of both the sides the matter was again referred to mediation before JHALSA vide order dated 21.11.2022 on the request of both the sides, however, the mediation between the parties has again failed as both the parties could not settle their dispute and as such the case has been heard on merit.
25. Even during pendency of this Criminal Revision before this Court, both the sides had again taken time on 03.05.2023 for seeking instruction on the point of compromise and the case was fixed on 10.5.2023.
However, on 10.5.2023, it was informed by the learned counsel for the petitioner that the petitioner may deposit Rs.15,00,000/- to O.P. No. 2 and is also ready to bear the expenses of marriage of his daughter for entering into compromise.
However, learned counsel for the O.P. No. 2has informed that compromise is not possible in this case but the petitioner may settle the dispute by paying Rs.30,00,000/- to her by way of one time settlement and thereafter, the case was fixed for final argument and the 12 judgment was reserved, hence, it would be better to appreciate the evidence of the complainant.
26. From perusal of the complaint case, it is evident that no specific date of demand of dowry, assault in the complaint petition has been mentioned except on 02.06.2010, i.e. on the date of alleged ouster of the complainant from her matrimonial home. The complainant has merely averred in the complaint that her marriage was performed with the petitioner on 10.5.2005 and she has given birth to a female child on 10.01.2007 and thereafter, the behaviour of the accused persons became indifferent towards her and both the accused persons, i.e the petitioner his mother (acquitted by the learned court below) started compelling the complainant to demand money from her parents for maintenance of the female child. There is no specific date on which the parents and relatives of the complainant had gone to complainant's Sasural to request to keep the complainant peacefully. For the first time she alleged that she was ousted from her matrimonial home was on 02.06.2010 with her baby after being brutally assaulted and thereafter, she was treated by the doctor.
Thereafter, on 29.08.2010 the accused persons came to her Maike with two unknown persons and started demanding Rs.2,00,000/- for construction of their home and Rs.10,000/- per month for maintenance of the girl child.
27. Thus, from the evidence of the complainant, it is evident that there is no specific date of torture and demand of dowry except for the first time on 02.6.2010 i.e. after a period of five years. Even during her S.A. she 13 has stated almost the same facts as stated in her complaint case, however, during the court's question she had admitted that her matrimonial home is situated at Bankura, West Bengal and her husband is working in Railways on the post of mechanical Changer/Charger and had further added and improved her allegation that her husband used to assault her after taking wine.
28. This Court is not referring to the statements of the Enquiry Witnesses, namely Asim Kumar Mukhopadhaya, Malobika Mukhopadhaya, Khoka Pall under Section 202 Cr.P.C. as they are not relevant for the present.
During trial before the learned court below the three witnesses were examined before charge and after charge.
29. So far as C.W.1 Asim Kumar Mukhopadhyay, who is father of the complainant is concerned, he has stated during evidence that marriage between his daughter and petitioner was solemnized on 10.5.2005 as per Hindu customs and he had given cash amount of Rs. 1,70,000/-, household articles and had paid Rs. 50,000/- separately for the motor cycle and had given jewelley and after marriage his daughter went to her matrimonial home at Bankura, West Bengal and lived there properly for two years and had given birth to a child on 10.01.2007 and thereafter, torture has started upon her by her in-law members. He alleged that his son-in-law and mother-in-law of the complainant had started demanding Rs.10,000/- cash per month and they started assaulting her for non-fulfillment of the same and they have gone to her matrimonial home and the matter was 14 pacified for some days but they again started torturing and assaulting her and ousted her from her matrimonial home. He also stated that on 29.08.2010 his son-in-law along with two other unknown persons came to his house and started demanding his property and also demanded Rs.2 lac for construction of the house and they were trying to snatch the girl child but on hearing the alarm raised by them, they fled away by leaving the girl child and since then his daughter is living with them.
30. During his cross examination before charge on 30.03.2016 he stated that he has kept his daughter voluntarily on his own and is ready to send his daughter to her matrimonial home and he admitted that son-in-law wanted to keep his daughter with honour.
31. However, during his further cross-
examination, after charge, on one hand he has stated that his daughter is living voluntarily with them but he resiled by saying that she is in grief. He also stated that his daughter is feeling absence of her husband and he is not in a position to solve her economic problems. He further admitted that he is still ready to send his daughter to his son-in-law. He further admitted that he had no information that there is dispute between the husband and wife or not and he is aware of only court case. Thus, from scrutinizing the evidence of C.W.1, i.e. father of the complainant it is evident that no specific date of demand of dowry and assault made by the petitioner except on 29.08.2010. Even C.W 1 has not given and stated about the date of ouster of his daughter from her matrimonial home, rather he has admitted during his cross examination after charge that his daughter is living 15 voluntarily and properly in his house and he is not aware of dispute between the husband and wife.
Thus, evidence of the C.W.1 cannot be relied upon for the purpose of conviction of the petitioner.
32. C.W. 2 is Malobika Mukhopadhyay, who is the mother of the complainant and she has stated the same fact as stated by C.W. 1-father of the complainant and as such the same is not being repeated here.
However, she has further stated that after death of her son in an accident the petitioner and his mother started torturing her daughter and they had started demanding Rs.2 lac from her and the accused persons have ousted her daughter from her matrimonial home on 02.6.2010 and there were blood scar on the mouth of her daughter and she was treated. Thereafter, on 29.08.2010, the petitioner along with two other unknown persons came to her house and started demanding Rs. 2,00,000/- in cash and also demanded Rs.10,000/- per month and has snatched away the girl child but her daughter has raised alarm and nearby people assembled and then the accused persons fled away and they had gone to the police station but the police had not instituted the case and hence the complaint case was filed in the court.
33. C.W.2 during her cross examination before charge on 04.7.2016 has stated that her daughter was assaulted in Kolkata and Anda and Adra but she and her husband were not present at those places, however, she has asserted that her daughter was treated for her physical assault made by her in-law members.
1634. However, after charge on 29.11.2018, during her further cross-examination she has stated that all the talks were held during her presence before marriage but she does not remember the matter which were discussed between both the sides before the marriage. She has further admitted that both the parties married with their consent. She further admitted during her further cross examination at Para 13 and Para 14 that this case, i.e. the complaint case has been instituted by her daughter on her own will and one maintenance case was also pending between the parties and first of all they have instituted a case of divorce under compulsion. Although she had stated that she will send her daughter to her matrimonial home if she decides to go there and she will not made any demand, she further stated that her daughter was firstly assaulted in Mahuda and thereafter assaulted in Bankura and the paper of her treatment has been deposited in the Court. However, no paper of treatment was brought before the Court during her evidence.
35. Thus, scrutinizing the evidence of C.W.2, it is evident that there is no specific date of assault and demand of dowry made by the petitioner from the complainant, except on 02.6.2010 when she was alleged to have been ousted and thereafter, on 29.08.2010 at her house which is absurd and not believable because neither C.W.1 nor C.W.2 has stated and taken the name of any independent person during their respective evidence for the occurrence taking place in their house on 29.8.2010.
36. Both C.W.1, namely Asim Kumar Mukhopadhaya and C.W.2, namely Malobika 17 Mukhopadhaya had not taken the name of any independent person or persons who were present at the time of occurrence taking place on 29.08.2010 when on that day the petitioner along with two other unknown person allegedly made demand of Rs.2,00,000/- and Rs.10,000/- per month and had snatched the girl child of the complainant.
37. C.W.3-Moumita Chatterjee, who is the complainant herself, has stated during her evidence that she has instituted the complainant case against her husband and her mother-in-law. She also admitted her marriage with the petitioner on 10.05.2005 and of giving birth to a girl child on 10.01.2007 and further stated that she was sent to her Maike at the time of pregnancy and she had given birth to a premature child and the entire expenses were borne by her mother and after completing six months of her girl child she went to her matrimonial home and where she lived properly for some days. Thereafter, the accused persons started demanding Rs.10,000/- per month from her father for maintenance of the girl child and her husband, after taking wine, used to assault her due to non-payment of the money. Thereafter, she informed the matter to her parents by phone and letter. Her parents came to her matrimonial home to pacify the matter and then she lived properly for a few days. Thereafter, in the year 2009, her brother died in an accident and the accused persons started torturing her and demanding money and finally on 02.6.2010 they assaulted and ousted her from her matrimonial home and due to assault she had sustained injury on her face and eye due to blood clotting and she was treated in her 18 Maike, however, on 29.08.2010 the petitioner, along with two other unknown persons, came to her Maike and demanded money from her father and also demanded Rs.10,000/- per month. She also alleged that when the accused persons were trying to snatch her daughter then she raised alarm and then the accused persons fled away. Thus, from the evidence of C.W.3, it is evident that though she had claimed to have informed about the matter of assault by letter but no such letter was produced during her evidence before charge and even C.W.3 has not given her any specific date of assaulting her in her matrimonial home from the year 2005 till 2010 except on 02.6.2010, i.e. on the day of her alleged ouster.
During her cross examination before charge she admitted that her mother-in-law was aged 70 years and her husband is working at Adra Division. She admitted that she was living with her mother-in-law and husband at 'Anda' and her marriage was performed with her consent, however, as soon as she became pregnant she was brought to her Maike. She further claimed that she was assaulted at three places, however, she has not given any specific date of assault, year and month by her husband or by any other person. She further stated that she faced major torture on 02.6.2010 in her matrimonial home.
38. After charge, during her further cross examination, C.W. 3 has stated that she lived in her matrimonial home properly for one year. She further stated that the reason of quarrel was that her husband used to demand money after taking wine. However, she has further admitted during her cross examination that 19 after death of her brother she was taken to vacation and even there in the hotel her husband assaulted her. She had further admitted in her cross examination and Para 35 and 36 that she does not want any mediation as she feels that the accused person will not keep her properly and she does not want to live with her husband. She further admitted in Para 39 and 40 that she had instituted a case for maintenance but she does not remember the case number but she is aware that her husband had filed a case for restitution of his conjugal right with her.
39. Thus, from the evidence of C.W. 3 it is evident that the complainant is the wife of the petitioner and save and except giving the vague wild allegation no specific date of torture and assault has been mentioned by her at three places, i.e. in Bankura, Anda and Adra. C.W.3 has further admitted during her cross-examination that her husband had taken her to vacation trip after the death of her brother. She further admitted that she does not want to live with her husband but she had filed a case for maintenance.
40. Although the petitioner has not adduced any evidence, i.e. oral and documentary, in support of payment of maintenance amount, however, from whole scrutiny of evidence of C.W.3 is evident that the complainant- O.P. No. 2 is voluntarily living in her Maike, i.e. the house of her parents on her own atleast after the death of her brother in the year 2009, if not at the time of giving birth to her girl child on 10.01.2007.
41. It is further evident from her evidence that she had also filed a case for maintenance from her 20 husband and she is getting maintenance amount otherwise she would have stated during her evidence that she is not getting any maintenance from her husband. Although the petitioner had stated during his written argument that maintenance amount of complainant is being deducted from his salary but no such document has been filed on behalf of the petitioner and even no oral evidence has been led on behalf of the petitioner on this point, however, it can be inferred for the purpose of consideration regarding payment of maintenance amount by the petitioner in view of the fact that the source of income of the parents of the complainant has not been discussed and brought on the record.
42. So far as the appreciation of evidence is concerned, learned counsel for the Complainant has placed reliance upon the judgment passed in STATE REPRESENTED BY THE DRUGS INSPECTOR Versus MANIMARAN reported in 2019 13 SCC 670, Paragraph 15, but it transpires that this judgment is not applicable in the case of the complainant, i.e. the wife rather it is in favour of the petitioner.
43. It has been held in the judgment passed in STATE REPRESENTED BY THE DRUGS INSPECTOR Versus MANIMARAN reported in 2019 13 SCC 670, Paragraph 15 as follows:-
"Para 15:- Upon consideration of the evidence, both the trial court as well as the first appellate court convicted the respondent under Sections 27 (b) (ii) and 28 of the Drugs and Cosmetics Act. When there are concurrent findings by the courts below, the High Court ought not to have interfered with the same in exercise of its revisional jurisdiction. The revisional jurisdiction 21 of the High Court is different from the appellate jurisdiction. The High Court will not normally interfere with the concurrent findings of fact, unless the findings of fact arrived at by the courts below are perverse or that the court has ignored the material evidence while arriving at that finding"
(Emphasis supplied)
44. Thus, from the judgment of the Supreme Court, the High Court will not normally interfere with the concurrent finding of fact unless the finding of fact arrived at by the Courts below are perverse or that the Court has ignored the material evidence while arriving at that finding.
45. In this case it is further evident that apart from the complainant and her father and mother there is no independent witness to support the allegation of the complainant for the occurrence taking place on 02.06.2010 i.e. on the date of alleged ouster of the complainant from her matrimonial home or on 29.08.2010, i.e. the date on which the petitioner along with two unknown persons had arrived at the house of her parents and had demanded Rs.2,00,000/- cash and Rs. 10,000/- per month for meeting the expenses of the girl child and for snatching the girl child from the lap of the complainant.
46. Both the Courts below had failed to notice the contradictions as mentioned above and vagueness and non-mention of specific date, month and year of alleged assault, torture and demand of dowry.
47. It is further evident that no independent witness has been examined on behalf of the complainant to support the allegations of 29.8.2010 and as per the 22 complaint nearby people had assembled there on the date of alleged occurrence.
48. So far as the judgment passed in the case of Gumansinh alias Lao alias Raju Bhikhabhai Chauhan and Another Versus State of Gujarat reported in 2021 SCC OnLine 660 is concerned, the same is also not applicable on the facts and in the circumstances of the case as in the said case death of a woman had taken place due to non-fulfillment of demand of dowry (i.e. for purchasing buffaloes for milk business) and pesticide was found in the body of the deceased by the doctor who conducted post-mortem examination of the deceased, whereas in the present case the complainant has admitted during her evidence that she has been living voluntarily in her Maike and she will not live with her husband and hence the above case is different from the case in hand.
49. So far as judgment passed in the case of BIR SINGH Versus MUKESH KUMAR reported in (2019) 4 SCC 197 is concerned, it is not applicable on the facts and in the circumstances of the present case as it was a case of dishonour of cheque for the offence under Section 138 of the N.I. Act.
50. It has been held in the case of AMIT KAPOOR Versus RAMESH CHANDER AND ANOTHER reported in 2012 9 SCC 460 at para 12, 13 as follows:-
"Para 12:-Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect 23 or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court of scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Eash case would have to be determined on its own merits.
Para 13:- Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C."24
51. It has been held in the case of GURCHARAN SINGH Versus STATE OF PUNJAB reported in (2017) 1 SCC, Para 24, 25 and 26 as follows:-
"Para 24:- In the legislative backdrop outlined hereinabove, Section 498-A of the Code also demands extraction:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, "cruelty means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman 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."
Para 25:-This provision, as the quote herein above reveals, renders the husband of a woman or the relative of his, punishable thereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The Explanation thereto defining "cruelty" enfolds:
25(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman, where it 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.
26. Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the wilful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding or cruelty against the person charged."
52. Apart from this, it is further evident that the Complainant, i.e. C.W.3 and her mother, C.W.2 had stated during their evidence that the complainant had injury on her face and eye and was treated by the doctor but no such medical paper was brought on record during the evidence of the complainant and her parents i.e. C.W.2 and C.W.3 respectively. Even, none of the witnesses i.e. C.W.1, C.W.2 and C.W.3, namely Asim Kumar Mukhopadhaya, Malobika Mukhopadhaya and Moumita Chatterjee had not stated the name of the doctor who had treated the complainant and no specific date of assault causing such injuries were mentioned in the complaint 26 case and had not been stated even in the evidence of C.W.2 and C.W.3, namely Malobika Mukhopadhaya and Moumita Chatterjee.
53. It further transpires that the learned Court below i.e. Mrs. Ritu Kujur, J.M., Ist Class, Dhanbad has merely discussed the evidence of C.W.1- Asim Kumar Mukhopadhaya, C.W.2-Malobika Mukhopadhyay and C.W.3-Moumita Chatterjee, but she has not drawn any conclusion from the evidence of the witnesses, rather he had mentioned only the examination-in-chief and cross examination of the witnesses and had convicted the petitioner mainly on the basis of the fact that witnesses have supported the case of the complainant and has held the petitioner guilty under Section 498 A of the I.P.C. though on the other hand the Court below had acquitted the petitioner for the offence under Section 406 of the I.P.C. and also under Section 3/ 4 of the Dowry Prohibition Act.
Thus, the demand of dowry has not been proved in absence of acquittal of the petitioner under Section 3/ 4 of the Dowry Prohibition Act. It further transpires from the judgment of the learned Appellate Court that that learned Appellate Court also discussed the witnesses but has not drawn any conclusion and has merely upheld the conviction of the petitioner under Section 498 A of the I.P.C. for the occurrence taking place on 02.06.2010 and 29.08.2010, which have not been proved properly, yet the Court below has wrongly relied upon the same.
54. Both the learned Courts below has failed to take notice of the fact that the petitioner was a 27 Government servant and was serving in the Railways in Grade II/Grade III post, i.e. on the post of Mechanical Changer and he has also lost his job due to conviction in the Complaint Case No. 1666/2010 filed on behalf of the complainant. It also transpires from the record that the petitioner has remained in custody for around two months.
55. Considering the facts and circumstances of this case and taking into consideration the evidence of the complainant's witnesses, it is evident that the complainant is voluntarily living at her parental home after the death of her brother in an accident since the year 2009. The claim of assault made at Bankura, Anda and Adra has not been proved and supported by any cogent evidence and there is vague allegation made against the petitioner, who has already lost his job, and his mother. It is further evident from the evidence of C.W.1 and C.W.2, i.e. father and mother respectively of the Complainant- C.W.3 that the complainant is living properly in her parental home voluntarily and on her own will and hence the allegation of assault at Bankura, Anda and Adra is not proved. Even the injury on the face and eye of the complainant is not proved in absence of any medical paper or examination of any doctor. Non-production of any injury report and non-examination of doctor is also fatal to the complainant's case. Even the petitioner had offered a sum of Rs.15,00,000/- (Rupees Fifteen Lakh) through his learned counsel on 10.05.2023 & also showed willingness to bear certain expenses at the time of marriage of her daughter.
2856. On the facts and in the circumstances of the case and in view of the law laid down by the Hon'ble Supreme Court and also taking lenient view and in view of the discussions made above, judgment dated 23.09.2020, passed by Sri Syed Saleem Fatmi, Additional Sessions Judge-XII, Dhanbad in Criminal Appeal No. 159 of 2019 and the judgment of conviction and order of sentence dated 29th July, 2019, passed by Ms. Ritu Kujur, Judicial Magistrate, Ist Class, Dhanbad in C.P. Case No. 1666/2010 holding the petitioner guilty for the offence under Section 498 A of the I.P.C. and thereby sentencing him to undergo S.I. for two years and to pay the fine of Rs. 2,000/- for the offence under Section 498-A of the I.P.C., are set aside in the interest of justice and the petitioner, namely Sumanto Chatterjee @ Sumanta Chatterjee is acquitted for the offence under Section 498-A of the I.P.C. and is discharged from the liabilities of his bail bonds.
57. Although this Court has acquitted the petitioner-Sumanto Chatterjee @ Sumanta Chatterjee for the offence under Section 498 A of the I.P.C., but taking note of the fact that the petitioner was serving in Railway, it will be appropriate that the complainant may be granted compensation under Section 357-A (3) of the Cr.P.C. for meeting the rehabilitation, livelihood of the Complainant and her daughter, as the learned counsel for the petitioner, on 10.5.2023, upon instruction from the petitioner, has submitted that the petitioner has offered a sum of Rs.15,00,000/- (Rupees Fifteen lakh only) to the complainant and has also informed that the petitioner may also bear the expenses at the time of marriage of his daughter but the said proposal was not accepted by the 29 complainant and she had demanded Rs.30,00,000/- (Rupees Thirty lakh only) towards one time settlement.
58. Hence, considering the facts and circumstances of this case and also taking note of the submission of learned counsel for the petitioner made before this Court on 03.5.2023, this Court directs the petitioner, namely Sumanto Chatterjee @ Sumanta Chatterjee to pay Rs.15,00,000/- (Rupees Fifteen lakh) as compensation to the Complainant and her daughter for their livelihood, survival and rehabilitation and for which the petitioner, namely Sumanto Chatterjee @ Sumanta Chatterjee may pay the same in a fixed deposit in the joint name of the complainant and her daughter in any Nationalized Bank within a period of four months from the date of passing of this judgment and this amount of Rs.15,00,000/- (Rupees Fifteen lakh only) may be adjusted, if any, one time settlement is arrived at between the parties before any competent Civil Court/Family Court, if any, in future.
59. It will also be desirable that the petitioner may bear the expenses at the time of marriage of his daughter.
60. Thus, this Criminal Revision is allowed with the above direction and observations.
61. Let a copy of this judgment be communicated to the learned Court below by Fax.
(Sanjay Prasad, J.) s.m.
A.F.R.