Jharkhand High Court
Dev Chandra Jha Son Of Late Sukhdev Jha vs The State Of Jharkhand on 17 January, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1025 of 2012
Dev Chandra Jha son of Late Sukhdev Jha, resident of Village-Bhatpura,
P.O.- Manigachhi, P.S.- Manigachhi, District- Darbhanga (Bihar),
presently resident of Qr. No. 1158, Sector-IC, Bokaro Steel City, P.O.-
Bokaro Steel City, P.S.- Bokaro Steel City, District- Bokaro (Jharkhand)
... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Jharkhand Jha @ Jharkhandi Jha (Accused no.1), Son of Sri
Shobhakant Jha (died as per order dated 31.08.2021)
3. Amarendra Kumar Jha (Accused no.2), son of Sri Jharkhand Jha @
Jharkhandi Jha
4. Sharvan Kumar Jha (Accused no.3), son of Sri Jharkhand Jha @
Jharkhandi Jha
5. Ashok Kumar Jha (Accused no.4), son of Sri Jharkhand Jha @
Jharkhandi Jha
SL. Nos. 2 to 5 are residents of Village- Sakhwar, P.O.-Manigachhi,
P.S.- Manigachhi, District- Darbhanga (Bihar), presently resident of
Qr. No. 1477 Sector- IXB, P.O.- Harla, P.S.- Harla, District- Bokaro
(Jharkhand)
... ... Opp. Parties
With
Cr. Rev. No. 915 of 2012
Shrawan Kumar Jha, son of Sri Jharkhand Jha @ Jharkhandi Jha,
Permanent resident of Village- Sakhwara, P.O. & P.S.-Manigachhi,
District- Darbhanga, State- Bihar,
At present resident of Q. No. 1477, Sector IX/C, P.O.- Sector IX, B.S.
City, P.S.- Harla, District- Bokaro ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Dev Chandra Jha S/o late Sukhdeo Jha, Q. No. 1158, Sector- I/C,
B.S. City, P.O. & P.S.- B.S. City, District- Bokaro
.... ... Opp. Parties
With
Cr. Rev. No. 916 of 2012
Amrendra Kumar Jha son of Sri Jharkhand Jha @ Jharkhandi Jha,
Permanent resident of Village- Sakhwara, P.O. & P.S.-Manigachhi,
District- Darbhanga, State- Bihar,
At present resident of Q. No. 1477, Sector IX/C, P.O.- Sector IX, B.S.
City, P.S.-Harla, District-Bokaro ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Dev Chandra Jha S/o late Sukhdeo Jha, Q. No. 1158, Sector- I/C,
B.S. City, P.O. & P.S.- B.S. City, District- Bokaro
.... ... Opp. Parties
With
Cr. Rev. No. 925 of 2012
Jharkhand Jha @ Jharkhandi Jha S/o Late Shobha Kanth (deleted and
substituted vide order dated 31.08.2021)
1. Shrawan Kr. Jha (Substituted Petitioner)
2. Ashok Kr. (Substituted Petitioner)
3. Amrendra Kr. Jha (Substituted Petitioner)
All substituted petitioners are sons of Late Jharkhand Jha @ Jharkhandi
Jha, Permanent residents of Village- Sakhwara, P.S.- Manigachhi,
2
District- Darbhanga, State- Bihar, At present residents of Q. No.1477,
Sector IX/C, P.O.- Sector IX, B.S. City, P.S.- Harla, District-Bokaro
... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Dev Chandra Jha S/o late Sukhdeo Jha, Q. No. 1158, Sector- I/C,
B.S. City, P.O. & P.S.- B.S. City, District- Bokaro
.... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner(s) : Mr. Baibhaw Gahlaut, Advocate [in Cr. Rev. No. 1025/2012] Mr. Sanjeev Thakur, Advocate [in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012] For O.P. No.2 : Mr. Baibhaw Gahlaut, Advocate (in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012) For O.P. Nos. 3 to 5 : Mr. Sanjeev Thakur, Advocate (in Cr. Rev. No.1025/2012) For the State : Mr. Jitendra Pandey, A.P.P. (in Cr. Rev. No.1025/2012) Ms. Ruby Pandey, A.P.P. (in Cr. Rev. No.916/2012) Mr. Tarun Kumar, A.P.P. (in Cr. Rev. No.925/2012)
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25/17.01.2022
1. All the four criminal revision applications arise out of the same Judgment and accordingly, they were heard together and are being disposed of by a common judgment.
2. The original petitioner-Jharkhand Jha @ Jharkhandi Jha in Cr. Rev. No. 925 of 2012 has died during the pendency of these cases and thereafter, he has been substituted by his sons and legal representatives who are the present petitioners in this case.
3. Heard Mr. Sanjeev Thakur, the learned counsel appearing on behalf of the petitioners in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 and on behalf of the O.P. Nos. 3 to 5 in Cr. Rev. No. 1025 of 2012.
4. Heard Mr. Baibhaw Gahlaut, the learned counsel appearing on behalf of the Informant-O.P. No.2 in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 and on behalf of the Informant-petitioner in Cr. Rev. No.1025/2012.
5. Heard learned counsels appearing for the State.
6. Cr. Rev. Nos. 915/2012, 916/2012 and 925/2012 are directed against the Judgment dated 09.10.2012 passed by the learned Sessions Judge, Bokaro in 3 Criminal Appeal No.189 of 2012 whereby and whereunder the learned appellate court: -
a. confirmed the conviction of the petitioners-Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) under Section 420 of the Indian Penal Code.
b. acquitted the convicts for offence under Section 406 of the Indian Penal Code.
c. acquitted the convicts for offence under Section 498A of the Indian Penal Code but convicted Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) for offence under section 3 and 4 of Dowry Prohibition Act and sentenced them accordingly.
d. acquitted Ashok Kumar Jha from all the charges and allowed the criminal appeal preferred by Ashok Kumar Jha.
7. Charge was framed under Sections 420, 406, 498A of Indian Penal Code and Section 3/4 of Dowry Prohibition Act against all the four accused persons.
8. The learned trial court, vide Judgment of conviction and order of sentence dated 25.08.2012 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. No.1133 of 2005, T.R. No.1361 of 2012 had convicted all the four accused for offence under Sections 406, 420 and 498A of the Indian Penal Code and acquitted them for offence under Section 3/4 of Dowry Prohibition Act but the appellate court acquitted all for offence under Sections 406 and 498A IPC ; convicted all, except Ashok Kumar Jha, for offence under section 3/4 of Dowry Prohibition Act ; upheld the conviction of all, except Ashok Kumar Jha, for offence under Section 420 of IPC.
9. The details of the conviction and sentence of the accused persons by the learned courts below are as follows:
Name Conviction and sentence Conviction and sentence recorded recorded by the trial by the appellate court court Jharkhand Convicted all the Acquitted these three persons of Jha @ accused persons under charges u/s 406 and 498A of IPC Jharkhandi Sections 406, 420 and but upheld the conviction u/s 420 Jha 498A of IPC and of IPC and further convicted them sentenced them to under section 3/4 of D.P. Act and undergo Rigorous sentenced them to undergo:4
Amrendra Imprisonment for 02 (a) S.I. of 2 years and fine of Rs. Kumar Jha years 06 months and fine 1,00,000/- each for offence u/s 3 of Rs.5,000/- each for of D.P. Act with default sentence. each of the offences with The fine amount was directed to default sentences. be remitted to the victim (P.W-2).
Acquitted all four (b) S.I. of one year and fine of Rs. Shrawan accused persons of 5,000/- u/s 4 of D.P. Act with Kumar Jha charges under Sections default sentence. 3/4 of Dowry Prohibition (c) S.I. of 2 years and a fine of Rs. Act 5,000/- each u/s 420 of IPC with default sentence. Ashok The appellate court acquitted Kumar Jha Ashok Kumar Jha of all the charges.
All the sentences were directed to run concurrently and the period undergone by the convicts was directed to be set off.
10. Cr. Rev. No.1025/2012 has been preferred by the Informant for setting aside the Judgment dated 09.10.2012 passed by the learned Sessions Judge, Bokaro in Criminal Appeal. The informant is aggrieved by acquittal of Ashok Kumar Jha from all the charges and acquittal of Jharkhand Jha @ Jharkhandi Jha, Amrendra Kumar Jha and Shrawan Kumar Jha for offence under Sections 406 and 498A IPC. Jharkhand Jha @ Jharkhandi Jha has expired during the pendency of this case.
11. Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 have been filed by the three convicts except Ashok Kumar Jha. Jharkhand Jha has expired, so he is being represented by his three sons as fine amount is also involved in this case.
Arguments on behalf of the petitioners in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 and on behalf of the O.P. Nos. 3 to 5 in Cr.
Rev. No. 1025 of 201212. Mr. Sanjeev Thakur, learned counsel appearing on behalf of the petitioners in Cr. Rev. Nos. 915/2012, 916/2012 and 925/2012 and on behalf of the O.P. Nos. 3 to 5 in Cr. Rev. No. 1025 of 2012 submitted that the accused persons stood convicted for the offence under Section 420 of the Indian Penal Code by both the learned courts below, although the basic ingredients of cheating under Section 415 of Indian Penal Code are absolutely absent in the present case. He submitted that there is no element of deception and accordingly, there is no mens rea in connection with the 5 alleged offence. He submitted that the alleged deception is with regard to the allegation that the husband was suffering from mental ill health as well as heart disease (hole in the heart - ASD). He submitted that the said diseases are curable and accordingly, no offence under Section 420 of Indian Penal Code is made out against the accused persons. He further submitted that the negotiation of marriage had taken place for 4 days and immediately after 5 days thereafter, the marriage was performed in great haste and both sides were well known to each other. Accordingly, it cannot be believed that the alleged disease of the husband was not known to the family members of the wife. He also submitted that otherwise also, non-disclosure of any disease does not come under deception and the same does not constitute any dishonest intention.
13. The learned counsel further submitted that even the conduct of the parties is required to be seen with respect to the allegation of dishonest intention / mens rea in connection with commission of offence under Section 420 of Indian Penal Code. He submitted that the husband had handed over the medical prescription to the brother of the girl and had informed him about the disease, but during the course of arguments before this Court, he did not dispute the fact that such action was taken by the husband after the marriage and upon being detected about his abnormal behaviour on 5th day of marriage. The learned counsel for the petitioners also submitted that there was delay in filing of the case on account of the reason that during panchayati, it was agreed that younger brother of the husband namely, Ashok Kumar Jha would marry the girl Kiran Kumari, but when Ashok Kumar Jha as well as the girl refused to marry, the case was instituted.
14. The learned counsel for the petitioners referred to a judgment passed by the Hon'ble Supreme Court in the case of Devender Kumar Singla Vs. Baldev Krishan Singla reported in (2005) 9 SCC 15 to submit that mens rea is required to be gathered from the facts and circumstances of the case and this exercise has not been done by the learned courts below while convicting the accused persons ultimately under Section 420 of Indian Penal Code.
15. Learned counsel submitted that at best, a case under Section 417 of Indian Penal Code could have been made out, but the basic ingredients for the offence under Section 420 of Indian Penal Code are missing.
16. The learned counsel also submits that the conviction of the accused for offence under Section 3/4 of Dowry Prohibition Act by the learned appellate court, though the learned trial court had acquitted them, is not sustainable in 6 the eyes of law as no appeal against acquittal u/s 3/4 of Dowry Prohibition Act was filed by the state /victim/informant.
17. Without prejudice to the aforesaid submission, the learned counsel for the petitioners further submitted that the convicts have ultimately remained in custody for about 06 months and the gifts received during marriage has ultimately been returned to the girl. He submitted that the girl had never gone to the matrimonial house and as per the customs, which has come on record, she stayed back in her parents' house alongwith the husband for a period of 05 days for the purposes of consummation of the marriage and ultimately, one matrimonial suit, for declaring the marriage as nullity, was filed and thereafter, the criminal case was also filed. He also submitted that the marriage has already been ultimately declared a nullity by the Family Court and both of them have re-married and are leading their respective lives.
Arguments on behalf of the Informant-petitioner in Cr. Rev. No. 1025 of 2012 and on behalf of the Informant-O.P. No.2 in Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012
18. Learned counsel appearing on behalf of the Informant did not dispute the fact that the marriage has been declared as nullity; the gifts received during marriage have been returned and the parties have remarried and are living their respective lives. He further submitted that so far as the custody of the convicts are concerned, the same is required to be verified from the records.
19. Learned counsel, during his arguments, submitted that after scrutinizing the materials on record, the basic ingredients for the offence under Section 420 of Indian Penal Code have been found to be satisfied by the learned court below and there is concurrent finding of the learned courts below on this point. He submitted that considering the scope of revisional jurisdiction, there is no illegality or perversity while recording the findings by the learned courts below on the point of conviction under Section 420 of IPC.
20. Learned counsel for the Informant also submitted that the acquittal of Ashok Kumar Jha by the learned appellate court is perverse and the same calls for interference by this Court. There is enough material to convict him under Section 420 of the Indian Penal Code as well as under Section 3/4 of Dowry Prohibition Act in the same manner as others have been convicted. He further submitted that Ashok Kumar Jha was also present at the time of negotiation as stated by the other witnesses, although, he did not dispute that Vishwakant Pathak (P.W.-7) , who is an independent witness and present 7 during marriage negotiation has not disclosed the presence of Ashok Kumar Jha at the time of the negotiation. He submits that one of the cheques, exhibit 7(b) read with exhibit 13 (transaction no. 11) shows that one of the cheques was issued in the name of Ashok Kumar Jha and by signature on the back side of the cheque at the time of withdrawal on 20.05.2005 it was encashed by Ashok Kumar Jha. This act of Ashok Kumar Jha also shows that he was present during negotiation of marriage between 16.05.2005 to 18.05.2005. He has further submitted that presence of Ashok Kumar Jha is also substantiated by presence of his signature on Deed of agreement for panch and panchayat dated 10.06.2005 (exhibit-2) where he was also a signatory. He further submitted that all the accused persons (opposite parties in Cr. Rev. No.1025 of 2012) are further liable to be convicted under Section 406 of the Indian Penal Code. He submits that their acquittal for offence under Section 406 of the Indian Penal Code by the learned appellate court calls for interference in revisional jurisdiction. He has referred to the judgement passed by the Hon'ble Supreme Court in the case of Pratibha Rani versus Suraj Kumar reported in (1985) 2 SCC 370 to submit that non return of Stri Dhan constitutes offence under section 406 of IPC and he submits that it also constitutes cruelty under section 498A of IPC by referring to judgement passed by Hon'ble Delhi High Court in the case of Surinder Kumar Yadav versus State of Delhi reported in 1999 supreme (Delhi) 961. Findings of this Court
21. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case as per the written report lodged by the Informant- Dev Chandra Jha (P.W.-10) on 18.10.2005 is that his daughter Kiran Kumari (P.W.-2-victim) was a staff nurse in Delhi Heart Institute. The Informant approached Jharkhand Jha @ Jharkhandi Jha for marriage of Kiran Kumari with his son Shrawan Kumar Jha and the marriage negotiation took place between 16.05.2005 and 18.05.2005 during which the family members of Jharkhand Jha participated at his residence and it was mediated in presence of Vishwakant Pathak (P.W.-7), Harish Chandra Choudhary (D.W.-4) and Harish Chandra Jha (D.W.-3). It was alleged that Jharkhand Jha and his family members induced them to believe that their ward was healthy, educated and was selected for employment at Delhi. On 23.05.2005, the Informant solemnized the marriage of his daughter Kiran Kumari with Shrawan Kumar Jha in which gift in cash to the tune of Rs.5,00,000/- was 8 paid by cheques and during the marriage ceremony, the Informant incurred expenses of Rs.3,00,000/-. On 6th day after the marriage i.e. 29.05.2005 in the morning, it was noticed that Shrawan Kumar Jha was not able to follow his daily pursuits. He was suffering from physical trembling and he could not manage to walk properly and was not even able to button his shirt properly. On enquiry, Shrawan Kumar Jha disclosed that he was suffering from some mental disease, for which he had been taking medicine, such as lithium and Bhelproat. On the same day, Shrawan Kumar Jha returned after handing over the papers regarding his treatment to the Informant's elder son namely, Dr. Vijay Chandra Jha (P.W.-9). The medical papers revealed that about 10 months before the marriage, he had been admitted in hospital from 20.07.2004 to 28.07.2004 and was suffering from Bipolar Mood Disorder and he was also suffering from heart disease, for which open-heart surgery was advised on 28.07.2004. It was alleged that suppressing these facts and by playing fraud with the Informant, the marriage was solemnized thereby causing financial and social loss to the Informant party and it also destroyed the life of the victim-girl, as second marriage was not customary in Maithili Brahman Society. When the accused persons were asked to return the Rs.5,00,000/- given in the marriage and Rs.3,00,000/- incurred as marriage expenses, they flatly refused. Thereafter, a panchayati was convened on 10.06.2005 and a Panchayat Ekrarnama was drawn, but the accused persons refused to abide the decision of the Panch.
22. On the basis of the written report, the case was registered as B.S. City P.S. Case No.335/2005 dated 18.10.2005 under Sections 420, 406 and 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against the petitioners namely, Jharkhandi Jha, Amrendra Kumar Jha, wife of Amrendra Kumar Jha, Shrawan Kumar Jha and Ashok Kumar Jha. After investigation, the Investigating Officer submitted charge-sheet against Jharkhand Jha and cognizance of the offence was taken under the same sections. Thereafter, supplementary charge-sheet was submitted against Amrendra Kumar Jha and Ashok Kumar Jha, showing lack of evidence against Laxmi Jha, wife of Amrendra Kumar Jha and another supplementary charge-sheet was submitted against Shrawan Kumar Jha.
23. The charges under Sections 420, 406 and 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act were framed against the accused persons which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
924. In course of trial, the prosecution examined altogether 11 witnesses in support of its case. P.W.-1 is Dinesh Chandra Jha, P.W.-2 is Kiran Kumari (victim), P.W.-3 is Lakhan Prasad, P.W.-4 is Sanjay Chandra Jha, P.W.-5 is Rajesh Kumar Singh, P.W.-6 is Jayant Kumar Mukherjee, P.W.-7 is Vishwakant Pathak, P.W.-8 is Satish Mohan Jha, P.W.-9 is Dr. Vijay Chandra Jha who is the son of the Informant, P.W.-10 is Dev Chandra Jha who is the Informant of the case and P.W.-11 is Vinay Kumar Sinha who is the Investigating Officer of the case.
25. The prosecution exhibited the signature of P.W.-5, Rajesh Kumar Singh on the production-cum-seizure list as Exhibit-1, the signature of P.W.-6, Jayant Kumar Mukherjee on the production-cum-seizure list as Exhibit-1/1, Panchnama as Exhibit-2, production-cum-seizure list as Exhibit-3, written statement of Kiran Kumari (P.W.-2) as Exhibit-4, C.C. of petition dated 11.11.2005 filed in A.B.P. No.378/2005 as Exhibit-5, C.C. of list filed in A.B.P. No.378/2005 as Exhibit-6, C.C. of eight cheques of S.B.I. as Exhibit- 7, C.C. of legal notice sent by Advocate of Kiran Kumari as Exhibit-8, C.C. of reply of legal notice sent by Advocate of accused persons as Exhibit-9, C.C. of Medical Report of Shrawan Kumar Jha issued by Suyash Private Hospital Limited, Indore as Exhibit-10, C.C. of Medical Report and discharge slip of Shrawan Kumar Jha issued by AIIMS as Exhibit-11, C.C. of application dated 22.10.2005 sent by Shrawan Kumar Jha from Delhi to S.P., Bokaro through FAX as Exhibit-12, C.C. of bank statement of the account of Informant issued by SBI, Admn Building Branch, Bokaro as Exhibit-13, entire written report of Informant as Exhibit-14, endorsement on written report as Exhibit-14/1, sanction order as Exhibit-15, C.C. of deposition of Gautam Kumar in T.M.S. 82/2005 as Exhibit-16, C.C. of deposition of Jharkhand Jha in T.M.S. 82/2005 as Exhibit-17, C.C. of deposition of Shrawan Kumar Jha in T.M.S. 82/2005 as Exhibit-18, C.C. of deposition of Amrendra Kumar Jha in T.M.S. 82/2005 as Exhibit-19, C.C. of Judgment in T.M.S. 82/2005 as Exhibit-20 and C.C. of Decree in T.M.S. 82/2005 as Exhibit-21.
26. On 21.04.2009, the statements of the accused persons were recorded under Section 313 of Cr.P.C. wherein they denied the incriminating evidences put to them and claimed to be innocent. Thereafter, the accused persons examined four witnesses in their defence. D.W.-1 is Gautam Kumar, D.W.-2 is Pintu Kumar, D.W.-3 is Harish Chandra Jha and D.W.-4 is Harish Chandra Choudhary.
1027. The accused persons in their defence exhibited the photograph of Kiran Kumari as Material Exhibit-I, signature of D.W.-1 on Panchnama / Agreement as Exhibit-A, signature of D.W.-2 on Panchnama as Exhibit-A/1, signature of D.W.-3 on Panchnama as Exhibit-A/2, signature of D.W.-4 on Panchnama as Exhibit-A/3, notice issued by the learned Principal Judge, Family Court, Bokaro in T.M.S. 82/2005 as Exhibit-B, C.C. of deposition of Informant of this case , in T.M.S. 82/2005 as Exhibit-C, C.C. of deposition of Informant, Kiran Kumari in T.M.S. 82/2005 as Exhibit-D, C.C. of deposition of Vijay Chandra Jha in T.M.S. 82/2005 as Exhibit-E, C.C. of deposition of Vishwakant Pathak in T.M.S. 82/2005 as Exhibit-F and C.C. of deposition of Lakhan Prasad in T.M.S. 82/2005 as Exhibit-G. Judgement of trial court
28. The learned trial court considered the oral evidences adduced on behalf of the defence and recorded in Para-20 that D.W.-1 has admitted the marriage of Shrawan Kumar Jha with Kiran Kumari and the panchayati held between both the parties and also about getting knowledge of the disease of Shrawan Kumar Jha from his parents and he exhibited his signature in the Panchnama as Exhibit-A. The learned trial court in Para-21 recorded that D.W.-2 has also admitted about the marriage and thereafter, convening of the panchayati in the house of Jharkhand Jha. The learned trial court in Para-24 recorded that D.W.-4 has admitted the marriage solemnized between Shrawan Kumar Jha and Kiran Kumari and the panchayati convened between both the parties in the house of Jharkhand Jha and the discussion which took place in the panchayati on the issue of Sharawan Kumar Jha. The learned trial court further recorded that the defence has not adduced oral or documentary evidence to disprove the version stated in the F.I.R., oral evidences of the prosecution witnesses and the documentary evidences exhibited by the prosecution.
29. The learned trial court considered the oral evidences adduced on behalf of the prosecution and recorded in Para-24 that the victim-P.W.-2 and the Informant-P.W.-10 have fully supported the prosecution case and the defence has failed to bring any contradiction during their cross-examination. P.Ws.-1, 3, 4, 5, 6, 7, 8 and 9, in their examination-in-chief as well as cross- examination, have also fully supported the prosecution case and the defence has failed to bring any contradiction during their cross-examination also. P.W.-11 is the Investigating Officer of the case and is a formal witness and he has also supported the prosecution case. In this way, the evidences of the 11 prosecution witnesses have corroborated the version of the Informant stated in the F.I.R..
30. The learned trial court further recorded that from the oral evidences of the prosecution witnesses and the oral and documentary evidences of the defence, it is clear that on 10.06.2005, a panchayati was held in the residence of Jharkhand Jha and a Panchnama, Exhibit-2 was prepared and apart from this, the victim Kiran Kumari in her written statement, Exhibit-4 has supported the prosecution case and Exhibit-5 is the anticipatory bail petition and Exhibit-6 is the list of documents filed in anticipatory bail. In Exhibit-5, it was accepted that Shrawan Kumar Jha is suffering from the disease namely, Inner Bipolar Mood Disorder (Mania) and his treatment was done at Suyash Hospital, Indore between 20.07.2004 and 28.07.2004 and his heart disease was also accepted and his operation for closure of A.S.D. was conducted at AIIMS, Delhi and thereafter, he is mentally and physically fit. Accordingly, the version of the defence also supports the prosecution version. It is also clear from the Exhibit- 7 (eight cheques), Exhibit-8 (advocate notice), Exhibit-9 (reply to the advocate notice), Exhibit-10 (Medical Report of Shrawan Kumar Jha) that Shrawan Kumar Jha had undergone treatment between 20.07.2004 and 28.07.2004 and he was said to be suffering from the disease Bipolar Mood Disorder (Mania), C.A.S.D and apart from this, it is clear from Exhibit-1 which is the medical report and discharge slip of AIIMS of Shrawan Kumar Jha that he was admitted on 02.09.2005 and operated on 05.09.2005 and was discharged. Exhibit-18 is C.C. of deposition of Shrawan Kumar Jha in T.M.S. 82/2005 in which he admitted that his operation for closure of A.S.D. was performed on 05.09.2005 and was discharged and he was also taking medicine for treatment of Bipolar Mood Disorder (Mania) from which he was suffering from birth. This version of Shrawan Kumar Jha also establishes the prosecution version. It is clear from the Exhibits- 19, 20 and 21 that the victim Kiran Kumari had filed an application under Hindu Marriage Act, 1955 in the court of the learned Principal Judge, Family Court, Bokaro for declaration of her marriage with Shrawan Kumar Jha on 23.07.2005 as nullity and for return of the stridhan worth Rs.5,00,000/- which was allowed on contest on the ground that the consent of Kiran Kumari was obtained by fraud as to the material fact and circumstances concerning Shrawan Kumar Jha and the learned Family Court, in exercise of the powers under Section 27 of the Hindu Marriage Act, 1955, directed Shrawan Kumar Jha to return 12 Rs.4,60,000/- to the victim-Kiran Kumari within three months which was the property presented at the time of the marriage.
31. The learned trial court convicted Jharkhand Jha @ Jharkhandi Jha, Amrendra Jha, Shrawan Kumar Jha and Ashok Kumar Jha under Sections 406, 420 and 498A of the Indian Penal Code and had sentenced them as stated above. However, the learned trial court acquitted all the accused persons from the charges under Section 3/4 of the Dowry Prohibition Act on the basis that there is no clear evidence on record that the accused persons had demanded dowry and accordingly, the prosecution has failed to prove its case under Section 3 / 4 of the Dowry Prohibition Act.
Judgement of appellate court
32. The appellate court also considered the evidences on record and recorded in Para-6 that Shrawan Kumar Jha was suffering from physical and mental disorder and it is sufficiently proved by oral as well as documentary evidence i.e. Exhibit-10 (Medical report), Exhibit-11 (consultation record of AIIMS) and Exhibit-2, an agreement signed by both the parties, in which there is an admission to the effect that Shrawan Kumar Jha was suffering from serious heart problem (Large Arterial Septal defect) for which cardio- thoracic surgery was advised on 28.07.2014 and suffered from Bipolar Mood Disorder (Mania) and was under treatment since 20.07.2014, this fact has also been admitted in A.B.P. No. 378/2005. In Exhibit-9 which is the reply to the legal notice, it has been admitted that Shrawan Kumar Jha was suffering from heart disease. These evidences conclusively establish that Shrawan Kumar Jha was suffering from serious mental and physical disorder since before the marriage and from the evidences of witnesses, it is also evident that the marriage was performed without bringing this to the notice of the prosecution party.
33. The learned appellate court further recorded that there is no denial with regard to the payment of Rs.5,00,000/- in the marriage and P.Ws.-1, 2, 6, 7, 9 and 10 (Informant) have consistently stated about payment of Rs.5,00,000/- at the time of the marriage, out of which Rs.4,60,000/- was paid by cheque and these facts remained uncontroverted in cross-examination and can be regarded as proved by the prosecution. In the testimony of P.W.-10, it has come that on the demand of Jharkhand Jha, Rs.5,00,000/- was given as gift, out of which Rs.4,60,000/- was given as undated eight cheques, photocopies of which have been exhibited as Exhibits-7 drawn in favour of self, J.K. Jha, Amrendra Kr. Jha and Ashok Kumar Jha which has been corroborated by 13 Exhibit-2, Panchnama. These cheques amounts have been encashed and the amount was withdrawn which is evident from the bank statement of S.B.I. marked as Exhibit-13. Exhibit-2 has been adequately proved by all the prosecution witnesses. P.Ws.- 3, 5 and 7 have testified the fact regarding detection of the mental and physical disorder and the recital of the Panchnama corroborates the oral account regarding the mental and physical disorder of Shrawan Kumar Jha, payment of Rs.4,60,000/- by cheque and D.W.-3 has proved his signature on the Panchnama as Exhibit-A/2.
34. The learned appellate court further recorded in Para-8 that in the present case, fraud was played on the Informant and his family members by deceiving them and thereby fraudulently inducing them for the marriage of Kiran Kumari with Shrawan Kumar Jha and it has also been established that Rs.4,60,000/- was also paid by cheques in connection with the marriage.
35. With regard to payment of the amount in the form of gift, the learned appellate court recorded in Para-9 that the payment of Rs.4,60,000/- by cheque on demand is a clear proof that it was dowry within the meaning under Section 2 of the D.P. Act punishable under Section 3 of the D.P. Act.
36. The learned appellate court, on the point of fixing the criminal liability of making a demand and receiving the amount by playing fraud on the Informant side, recorded in Para-10 that P.W.-7 (Vishwakant Pathak) deposed that the negotiation took place on 16.05.2005 which was attended by Jharkhandi Jha, Amrendra Jha and Shrawan Kumar Jha and he has not mentioned the name of Ashok Kumar Jha to have attended the negotiation. P.W.-10, the Informant deposed that all the accused persons attended the negotiation which is in contradiction to the deposition of P.W.-7. Other prosecution witnesses have stated that all the accused persons were present in the negotiation, but this cannot be accepted for the reason that in the F.I.R., it is clearly stated that the Informant, his wife and Vishwakant Pathak only were present from the side of the bride during the negotiation. Vishwakant Pathak is a witness of the prosecution and when he says that Ashok Kumar Jha did not attend the negotiation, there is no reason to infer otherwise. His absence also rules out his role in the act of deception and to offer inducement in procuring the marriage. One of the cheques was drawn in the name of Ashok Kumar Jha, but there is no evidence regarding receiving the amount by him and it is also not clear regarding depositing the cheque in his individual account or in the joint account with other accused persons. As Ashok Kumar Jha did not take part in the negotiation and there 14 had been no demand by him, he is entitled to benefit to doubt. The learned appellate court further recorded that as far as other three accused persons are concerned, there is direct evidence that they participated in the marriage negotiation, made the demand and received that amount.
37. With regard to the offence under Section 498A of the Indian Penal Code, the learned appellate court recorded in Para-12 that it is established case of the prosecution that the bride never stepped into her matrimonial house and the mental and physical disorder of the bridegroom was detected on the sixth day and there is no evidence on record to show that the accused persons by their wilful conduct harassed the victim lady. Accordingly, the charge under Section 498A of the Indian Penal Code is not proved.
38. Accordingly, the learned appellate court confirmed the conviction of the petitioners-Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) under Section 420 of the Indian Penal Code passed by the learned trial court and sentenced them as stated above and convicted them under Sections 3/4 of the Dowry Prohibition Act and sentenced them as stated above. The fine amount imposed under Section 3 of the Dowry Prohibition Act was directed to be paid to Kiran Kumari (victim), the daughter of Informant as compensation under Section 357 of Cr.P.C. The learned appellate court acquitted all the convicts for offence under Sections 406 and 498A of IPC. However, the learned appellate court acquitted Ashok Kumar Jha from all the charges.
39. It is not in dispute that negotiations for marriage had taken place between 16.05.2005 to 18.05.2005 and the marriage was solemnized on 23.05.2005. As per the customs, the girl did not go to her matrimonial home and the bridegroom stayed back and on 29.05.2005 he was found trembling. When the girl reported the matter to her family members, the boy disclosed about his mental and physical disease to the elder brother of the girl and thereafter he left. Admittedly the marriage was not consummated. Panchayati was held on 10.06.2005 wherein a deed agreement was prepared and 5 lacs tilak, 3 lacs marriage expenses, and 15 lacs as compensation was decided to be paid back to the informant party and immediately thereafter the victim girl filed a case for nullity of marriage on account of fraud on 27.06.2005 and also prayed for getting back her Stridhan and thereafter on 18.10.2005 the criminal case for 15 offence under Section 420/406/498-A IPC and Section 3/4 of the Dowry Prohibition Act was filed.
40. It further appears that during the course of panchayati, the marriage between Shrawan Kumar Jha and victim was sought to be declared as null and void being based on deception and some talk of marriage between the victim and Ashok Kumar Jha had also taken place. At the time of Panchayati, P.W. 3 (Lakhan Prasad) and Satish Mohan Prasad were present from the side of the bride and Harish Chandra Choudhary (D.W.4) and Harish Chandra Jha (D.W. 3) were present from the side of the bridegroom and panch was V.K Pathak (P.W. 7).
41. At the time of negotiation of marriage, apart from family members of the bride and bridegroom, P.W. 7 who is an independent witness was also present and he is an eye witness to the negotiation of marriage, but he has not stated the presence of Ashok Kumar Jha during negotiation. He has not even been cross-examined from the side of the prosecution on the point of presence or otherwise of Ashok Kumar Jha during negotiation. The learned appellate court has taken into consideration the evidence of the prosecution witness P.W. 7 itself, who is admittedly an independent witness and has recorded a finding that Ashok Kumar Jha was not present at the time of negotiation. This finding is based on sound reasons and one of plausible views on the basis of materials on record. The argument of the informant that Ashok Kumar Jha had encashed the cheque of Rs. 40,000/- which was given during marriage by showing his signature at the back side of the cheque can also not be relied upon in view of the fact that the said signature had not been exhibited in the present Case. Further the presence of Ashok Kumar Jha at the time of panchayati also is not proved in view of the fact that his signature on the deed of agreement dated 10.06.2005 has also not been exhibited and proved. Thus, the finding recorded by the learned appellate court regarding absence of Ashok Kumar Jha at the time of negotiation of marriage and his acquittal for all the charges does not call for any interference by this court.
42. This court has also gone through the examination of the accused persons under Section 313 of Cr.P.C. and upon perusal of the same, this court finds that no such incriminating material has been put to the accused persons regarding any demand of property/money by way of dowry, rather the allegation is that the marriage was performed by suppressing the 16 physical and mental condition of Shrawan Kumar Jha so that dowry can be received. Further, the questions also referred to the agreement (panchayati) wherein accused party had agreed to return the gifts including cash and other materials but they did not abide by the same. However, all the questions put to the accused persons were denied by them. Thus, the alleged demand of dowry has not been put to the accused persons while recording their statements under Section 313 Cr. P.C. and the cash and other materials which were to be returned has been referred to as gift and not dowry.
43. Section 498A IPC and Section 3/4 of Dowry Prohibition Act a. Upon perusal of the judgement passed by the learned trial court, it appears that the learned trial court, after considering the materials on record, was of the view that offence under Section 3/4 of Dowry Prohibition Act was not proved beyond reasonable doubt and accordingly acquitted the accused for offence under Section 3/4 of Dowry Prohibition Act. However, the learned trial court recorded a finding that the accused persons purposely and with dishonest intent defrauded the informant party and got the daughter of the informant married with Shrawan Kumar Jha. The learned trial court also recorded that the accused persons also fraudulently took gift amounting to Rs. 5 lakhs and caused financial loss to the informant party and consequently caused mental torture to the victim. The learned trial court recorded that these allegations found proved on record beyond reasonable doubt and consequently convicted the accused persons for offence under Sections 406, 420 and 498A of Indian Penal Code. It is also important to note that admittedly the victim had never gone to her matrimonial house and even the marriage was not consummated and in fact the bridegroom Shrawan Kumar Jha stayed back in the parental house of the victim and during his stay, his mental and physical disorder was detected. He disclosed his mental disorder and physical illness to the elder brother of the victim upon being informed about the abnormal behaviour of the bridegroom by the victim to her family members. b. So far as the appellate court is concerned, the appellate court framed a question for consideration as to "whether there was any legal duty on the part of the accused persons to disclose the physical and mental disease at the time of marriage negotiation?"
17The appellate court was of the view that marital relations are founded on trust and good will. When the marriage is settled by negotiation there is an implicit and unwritten code that serious abnormalities of either side will not be concealed. The prospective bride is interviewed by the other side. There is reciprocal responsibility that any serious infirmity of the groom will also be not concealed. The appellate court was of the view that in the circumstances where trust is reposed on the other side in matrimonial negotiation and false assertion is made by the other side to procure the settlement of marriage, it becomes an incident of deceitful representation.
c. The learned appellate court, upon considering the materials on record, recorded a finding that fraud was played on the informant and his family members by deceiving them and thereby, fraudulently inducing them for marriage of victim Kiran Kumari with Shrawan Kumar Jha. The learned appellate court also recorded that on account of fraud committed, it has been established that an amount of Rs. 4,60,000/- was also paid by cheques in connection with marriage. These aspects of the matter were considered while convicting the accused for offence under Section 420 of Indian Penal Code.
d. The learned appellate court further was of the view that merely because the witnesses have stated that there was transaction of money in the nature of gift, the same would not change its essential character that it was given in connection with marriage on a positive demand of the father of the bridegroom and consequently held that payment of Rs. 4,60,000/- by cheque on demand was dowry within the meaning of Dowry Prohibition Act and punishable under Section 3 of the Dowry Prohibition Act.
e. The learned appellate court, while holding the accused persons guilty of offence under Sections 3 and 4 of Dowry Prohibition Act, recorded that it was the father of the bridegroom who had made the demand. The learned appellate court also recorded that the learned trial court had not convicted the accused under Sections 3 and 4 of Dowry Prohibition Act, but there was no impediment in an appeal against conviction to alter the finding by altering or maintaining the sentence under Section 386 Cr.P.C. and certainly an appellate court cannot enhance sentence while hearing an appeal against conviction. The appellate court thereby convicted Jharkhand Jha, Shrawan Kumar Jha and Amrendra Kumar 18 Jha for offence under Section 3 of Dowry Prohibition Act and sentenced them as stated above with fine of Rs. 1 lakh each with a default clause. The appellate court although recorded that it was only Jharkhand Jha who had made the demand and it has come on record that even the victim had clearly stated that she had no idea as to whether there was any demand of dowry and it could only be disclosed by her father i.e. informant, but in spite of that, the appellate court convicted the aforesaid three accused persons namely Jharkhand Jha, Shrawan Kumar Jha and Amrendra Kumar Jha for offence under Section 3 of the Dowry Prohibition Act.
f. The learned appellate court also considered the ingredients of Section 498A of Indian Penal Code and recorded that it is an established case of the prosecution that the bride never stepped into her matrimonial home and that there is a unique custom amongst Maithili Brahmins where the marriage is consummated and sanctified after four days of the marriage. During this period, the bridegroom is kept under a watch in the bride's house and after completion of four days, the marriage is consummated. Here the mental and physical disorder of bridegroom was detected on the sixth day and the bride never went to her matrimonial home. g. The learned appellate court also considered that it was not the prosecution case that the bride was in any way harassed in reference to any unlawful demand and therefore, the question of application of clause (b) and explanation to Section 498A did not arise. It was argued by the prosecution that the bride had suffered mental agony and harassment which brings the case within the mischief of explanation (a) to Section 498A of Indian Penal Code. The learned appellate court considered this argument and was of the view that it is essential for the prosecution to establish that the accused was guilty of any willful conduct on his part which was of such a nature as was likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. The appellate court was of the view that these ingredients of Section 498A of Indian Penal Code were not proved and the victim having not gone to the matrimonial home even for a single day, there was no evidence to show that the accused persons, by their willful conduct, harassed her. With this finding, the learned appellate court acquitted the accused persons for offence under Section 498A of Indian Penal Code.19
h. This Court is of the considered view that the judgement of the learned appellate court, so far as offence under Section 498A of Indian Penal Code is concerned, has considered the ingredients of offence under clause (a) of explanation of Section 498A IPC as well as clause (b) of the explanation and under both the clauses, the learned appellate court has come to a clear finding that no offence is made out. This Court finds that the judgement of the appellate court while acquitting the accused persons for offence under Section 498A is well-reasoned judgement, which does not call for any interference. i. This Court finds that as per the prosecution case, the victim-Kiran Kumari had never gone to her matrimonial house and the mental and physical disorder of the bridegroom-Shrawan Kumar Jha was detected on the sixth day after the marriage at her parental house and there is no evidence to show that the Opposite Party Nos.2 to 5 by their wilful conduct had committed cruelty upon victim girl and therefore, the offence under Section 498A of the Indian Penal Code is not made out against them. The learned trial court found that the money/articles were given as gifts in marriage and not as a result of any demand of dowry but still convicted the accused for offence under section 498A of IPC by holding that the victim girl has suffered mental harassment at the hands of accused on account of their fraudulent act /omission. The appellate court acquitted the convicts for offence under section 498A IPC by holding that the mental harassment of the victim was not of such a grave nature so as to constitute cruelty under section 498A of IPC but convicted the accused under section ¾ of Dowry Prohibition Act by specifically recording that there was demand by the father of the bridegroom Jharkhand Jha (now deceased). The learned counsel for the informant has argued that once there is demand of dowry, there was no question of acquittal under Section 498A of IPC. The learned trial court recorded a finding that these transactions were by way of gifts and even while recording the statements of the accused under section 313 Cr.P.C. the said transactions were referred to as gifts and not as a result of any dowry demand. The accused could not have been convicted by the learned appellate court for demand of dowry in absence of any material put before the accused while recording statement of the accused under section 313 of Cr.P.C. Thus, the accused could neither be convicted under section 498A IPC on account of demand of dowry and 20 harassment nor could have been convicted by the learned appellate court for offence under section 3/4 of Dowry Prohibition Act. It is important to note that the bride did not ever go to her matrimonial house after marriage. The learned appellate court has already set aside the conviction under Section 498A of Indian Penal Code and in view of the aforesaid findings, the conviction of any of the accused persons for offence under section 3/4 of Dowry Prohibition Act by the learned appellate court is perverse and calls for interference in revisional jurisdiction to secure the ends of justice. Accordingly, conviction of the accused for offence under Section 3/4 of Dowry Prohibition Act by the learned appellate court, is hereby set-aside.
44. Section 406 of Indian Penal Code i.So far as the charge under Section 406 of Indian Penal Code is concerned, the learned appellate court was of the view that in order to convict for offence under Section 406 of Indian Penal Code, it is essential to prove the ingredient of offence of criminal breach of trust. It is important to note that the learned trial court did not record any finding in connection with entrustment of any property rather the finding was in connection with gift given during marriage, but still convicted the accused persons under Section 406 of Indian Penal Code. The learned appellate court was of the view that there is vital difference between cheating and criminal breach of trust. In case of cheating, the property is obtained by deceit whereas in case of criminal breach of trust, the property is initially obtained in trust and confidence and thereafter, it is misappropriated. The learned appellate court was of the view that if the marriage itself is induced by fraud, the payment of any amount cannot be said to be under trust. The learned appellate court held that deceit and trust cannot co-exist. When marriage is induced by fraud and the property is given in consequence of it, it cannot be said that delivery of property was obtained under a trust and in such circumstances, there can be no inducement and was of the view that no offence under Section 406 IPC was made out.
ii.This Court is of the considered view that the learned appellate court has rightly held that there was no entrustment as the marriage itself was induced by fraud followed by payment of amount and accordingly there was no entrustment.
21iii.This Court further finds that in course of the marriage negotiation, the bridegroom party had obtained the amount by deception and not under any trust and therefore, the offence under Section 406 of the Indian Penal Code is also not made out against Opposite Party Nos.2 to 5. The learned trial court recorded a finding that these transactions were by way of gifts as a sequel of deception regarding physical and mental well- being of the bride-groom resulting in marriage and parting with gifted items / cash; while recording the statements of the accused under section 313 Cr.P.C. also the said transactions were mentioned as gifts and not as a result of dowry demand. Thus, the convicts could not have been convicted by the learned appellate court for demand of dowry in absence of any material put before the accused while recording statement of the accused under Section 313 of Cr.P.C. In such circumstances, there is no element of entrustment of any property calling for conviction under section 406 of IPC. In view of absence of entrustment, the judgements relied upon by the learned counsel for the informant passed in the case of Pratibha Rani versus Suraj Kumar reported in (1985) 2 SCC 370 as also in the case of Surinder Kumar Yadav versus State of Delhi reported in 1999 supreme (Delhi) 961 do not apply to the facts and circumstances of this case. The learned appellate court has rightly acquitted all the convicts for offence under Section 406 of Indian Penal Code by well-reasoned findings which does not call for any interference in revisional jurisdiction of this court in absence of any illegality, perversity or material irregularity.
45. Section 420 of Indian Penal Code I.This Court finds that the negotiation for the marriage between Shrawan Kumar Jha and the victim-Kiran Kumari took place being induced by fraud and deceit suppressing the mental and physical disorder of the bridegroom-Shrawan Kumar Jha who was suffering from Bipolar Mood Disorder (Mania) and heart disease since before the marriage and this fact has been sufficiently proved by documentary evidences i.e. Exhibits- 2, 6, 9, 10 and 11 and pursuant to the marriage negotiation, Rs.5,00,000/- was given to bridegroom party. P.Ws.-1, 2, 6, 7, 9 and 10 (Informant) have consistently stated about payment of Rs.5,00,000/- to the bridegroom party at the time of the marriage, out of which Rs.4,60,000/- was paid by eight cheques which were withdrawn which is evident from the bank statement of S.B.I. marked as Exhibit-13. Exhibit-2 22 (Panchnama) also supports the payment of Rs.5,00,000/- to the bridegroom party which has been identified by the prosecution witnesses as well as by the defence witnesses. There is also no denial from the petitioners-namely, Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha with regard to the payment of Rs.5,00,000/- to them in the marriage and these facts have remained uncontroverted in their cross-examinations.
II.The learned appellate court recorded that there was direct evidence against three accused persons that they participated in the marriage negotiations, made the demand and received the amount and therefore, was of the view that the prosecution has succeeded to prove its case of fraud under Section 420 of Indian Penal Code and for offence under Section 3 and 4 of Dowry Prohibition Act against Jharkhand Kr. Jha, Shrawan Kumar Jha and Amrendra Kumar Jha.
III.This Court is of the view that all the essential ingredients constituting the offence under Section 420 of the Indian Penal Code against Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) are satisfied in the present case.
IV.In the judgment relied upon by the convicts passed by the Hon'ble Supreme Court in the case of Devender Kumar Singla (supra), while dealing with the ingredients of offence under section 420 of IPC it has been held that the essential ingredients to attract section 420 IPC are (i) cheating (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into valuable security ; and (iii) the mens rea of the accused at the time of making inducement. It has been held that making of false representation is only one of the ingredients for offence under section 420 IPC; it is not necessary that false pretence should be made in express words by the accused ; it may be inferred from all the circumstances including the conduct of the accused in obtaining the property; It is not always possible to prove dishonest intention by any direct evidence and it can be proved by a number of circumstances from which reasonable inference can be drawn. The said judgement does not help the convicts in any matter. This Court finds that there are enough materials on record to sustain the conviction of the convicts for offence under Section 420 IPC including the circumstances 23 that even after panchyati, the accused did not take any steps to return the money/materials fraudulently received from the informant party and ultimately the victim had to file a title matrimonial suit for declaring the marriage as nullity and return of the money.
V.This Court finds that both the learned courts below have recorded concurrent findings with regard to conviction of the petitioners namely, Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) under Section 420 of the Indian Penal Code and there is no illegality or perversity or material irregularity in their conviction under Section 420 of the Indian Penal Code calling for any interference in revisional jurisdiction of this court, which is accordingly upheld. Accordingly, conviction of the convicts for offence under Section 420 IPC is hereby upheld.
46. Acquittal of Ashok Kumar Jha by the learned appellate court
(a) The appellate court also considered the fact that independent witness P.W. 7 had deposed that the negotiation of marriage took place on 16.05.2005 which was attended amongst others by Jharkhand Jha, Amrendra Jha and Shrawan Kumar Jha, but did not mention the name of Ashok Kumar Jha to have attended the negotiations and the learned appellate court, after considering the materials on record, was of the view that since Ashok Kumar Jha did not participate in the negotiations, therefore, he cannot be held guilty of making unlawful demand. It has also come in evidence of the prosecution that Ashok Kumar Jha was student of M.B.A. at Ahmedabad and logically his presence in the negotiations was ruled out and P.W. 7 is a witness of the prosecution who says that Ashok Kumar Jha did not attend the negotiation, then there was no reason to infer otherwise. The learned appellate court also held that his absence also rules out his role in the act of deception and to offer inducement in procuring the marriage. The learned appellate court also considered the only incriminating evidence that has come up against Ashok Kumar Jha that one cheque was drawn in his name, but recorded that there was no evidence to the effect as to whether the amount was received by him or not and it was also not clear as to whether the cheque was deposited in his individual account or was deposited in the joint account with other accused persons. The appellate court recorded that he was not present at the time of negotiations and there has been no demand 24 by him and in these circumstances, Ashok Kumar Jha was found to be entitled to benefit of doubt.
(b) Ashok Kumar Jha is the brother-in-law of victim girl (P.W-2). This Court further finds that as per the F.I.R., the Informant, his wife and Vishwakant Pathak only were present during the negotiation from the side of the bride and Vishwakant Pathak is a witness of the prosecution who has been examined as P.W.-7 and he has deposed that the negotiation took place on 16.05.2005 which was attended by Jharkhandi Jha, Amrendra Kumar Jha and Shrawan Kumar Jha and he has not mentioned the name of Ashok Kumar Jha (Opposite Party No.5 in Criminal revision no. 1025 of 2012). Accordingly, there is no evidence against Ashok Kumar Jha regarding taking part in the marriage negotiation or making any demand by him from the Informant party or committing any cruelty to the victim girl and therefore, the offences under Sections 420, 406 and 498A of the Indian Penal Code are not made out against him. The learned appellate court has passed a well- reasoned judgement while acquitting Ashok Kumar Jha from all the charges.
47. In view of the aforesaid findings: -
a. acquittal of the Opposite Party No.5 in Criminal Revision No. 1025 of 2012, Ashok Kumar Jha, from all the charges is upheld.
b. acquittal of the Opposite Party Nos.2 to 4 in Criminal Revision No. 1025 of 2012 namely, Jharkhand Jha @ Jharkhandi Jha (died as per order dated 31.08.2021), Amrendra Kumar Jha and Shrawan Kumar Jha respectively from the charges under Sections 406 and 498A of the Indian Penal Code do not require any interference.
c. Accordingly, Cr. Rev. No. 1025 of 2012 preferred by the Informant of the case is hereby dismissed.
d. Conviction of Jharkhand Jha @ Jharkhandi Jha (died as per order dated 31.08.2021), Amrendra Kumar Jha and Shrawan Kumar Jha for offence under section 3/4 of Dowry Prohibition Act is set-aside. Accordingly, Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 are partly allowed on the point of conviction under section 3/4 of Dowry Prohibition Act.
25e. Conviction of Jharkhand Jha @ Jharkhandi Jha (died as per order dated 31.08.2021), Amrendra Kumar Jha and Shrawan Kumar Jha for offence under Section 420 IPC is upheld. Accordingly, Cr. Rev. Nos. 915/2012, 916/2012 & 925/2012 are dismissed on the point of conviction under 420 of IPC.
48. On the point of sentence A. This Court finds that the learned appellate court has sentenced the petitioners namely, Shrawan Kumar Jha, Amrendra Kumar Jha and Jharkhand Jha @ Jharkhandi Jha (original petitioner in Cr. Rev. No. 925 of 2012) to undergo Simple Imprisonment for 02 years and fine of Rs.5,000/- each for the offence under Section 420 of the Indian Penal Code and in default of payment of fine, to undergo further Simple Imprisonment for 15 days each.
B. This Court finds that the case was instituted on 18.10.2005 and the petitioners namely, Shrawan Kumar Jha and Amrendra Kumar Jha have faced the rigour of the criminal case for more than 16 years and no criminal antecedent against them has been brought on the record of this case. This Court is of the view that ends of justice would be served, if the sentences of these two petitioners for the offence under Section 420 of the Indian Penal Code are modified to some extent by enhancing the fine amount.
C. Considering the entire facts and circumstances of the case, the sentence of Amrendra Kumar Jha (brother-in-law of the victim) is modified and reduced to six months with fine of Rs.1,00,000/- and the sentence of the petitioner-Shrawan Kumar Jha (husband of the victim), is modified and reduced to one year with fine of Rs.1,00,000/-. The husband of the victim has to take greater responsibility for the offence committed by him and for the sufferings of the victim (P.W-2).
D. The fine amount is directed to be deposited before the learned court below within a period of 03 months from the date of communication of this order to the learned court below. The entire fine amount so deposited by the Amrendra Kumar Jha and Shrawan Kumar Jha shall be remitted to the victim (P.W-2) upon due identification.
26E. In case, the respective fine amounts are not deposited by Amrendra Kumar Jha and Shrawan Kumar Jha within the stipulated time frame, they would serve the sentence and would be also liable to pay the fine amount of Rs.5,000/- for the offence under Section 420 of the Indian Penal Code as imposed and directed by the learned appellate court.
F. The petitioners in Cr. Rev. No. 925 of 2012, who are the sons and legal representatives of the original petitioner-Jharkhand Jha @ Jharkhandi Jha, are directed to deposit the fine amount of Rs.5,000/- imposed by the learned appellate court upon the deceased original petitioner- Jharkhand Jha @ Jharkhandi Jha for the offence under Section 420 of the Indian Penal Code within a period of 03 months from today. The amount is directed to be deposited in equal proportion by the sons of Late Jharkhandi Jha, failing which the same would be realized from the assets of Late Jharkhand Jha @ Jharkhandi Jha in accordance with law.
G. Accordingly, with the aforesaid findings and directions, Cr. Rev. Nos. 915/2012, 916/2012 and 925/2012 are hereby disposed of. Cr. Rev. No. 1025 of 2012 preferred by the Informant, is dismissed.
49. Bail bonds furnished by Shrawan Kumar Jha and Amrendra Kumar Jha are cancelled. The learned court below shall verify the custody in connection with the present case from jail and proceed accordingly.
50. Interim order, if any, stands vacated.
51. Pending interlocutory application, if any, is dismissed as not pressed.
52. Let the Lower Court Records be sent back to the court concerned.
53. Let a copy of this Judgment be communicated to the learned court below through 'FAX/email'.
(Anubha Rawat Choudhary, J.) Saurav/Pankaj