Chattisgarh High Court
Shudhakar vs State Of Chhattisgarh on 27 September, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 20.06.2022
Judgment delivered on____________
CRR No. 180 of 2011
Shudhakar, S/o.J Bhursabo, aged about 34 years, R/o. Vill. Dharampur, P.S.
Basna, Distt. Mahasamund, C.G.
---- Applicant (In jail)
Versus
State Of Chhattisgarh, through District Magistrate, Mahasamund, District-
Mahasamund ---- Respondent
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For Applicant : Smt Indira Tripathi, Advocate For Respondent/State : Shri Ishan Verma, PL
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Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment
1. Challenge in this Criminal Revision is to the order dated 15.03.2011 passed by the First Additional Session Judge, Mahasamund in Criminal Appeal-98 of 2009, whereby learned Appellate Court affirmed the judgment of conviction and sentence passed by learned Judicial Magistrate First Class, Pithora, District Mahasamund in Criminal Case-30 of 2009, wherein applicant was convicted under Section 498A of IPC and sentenced to undergo one year RI and to pay fine of Rs.500/- with default stipulation.
2. Facts of case in brief are that complainant- Phoolmatibai (PW1), wife of applicant lodged written report before Superintendent of Police, Mahasamund, District-Mahasamund on 15.09.2006, pleading therein that she was married to applicant; from their wedlock they were blessed with three girl children; applicant used to assault her, he kept another girl-Nalini as his wife and left complainant and children at her parents' house. On application of complainant, a community meeting was convened, and the decision taken in meeting was CRR 180 of 2011 2 not complied by applicant. Thereafter, report was lodged. Based on written report, concerned Police Station registered FIR on 04.05.2007 for the offence punishable under Section 498A of the IPC against applicant. After completion of investigation, Police submitted Final Report. Learned trial Court framed charge against applicant for offence under Section 498A of IPC. One complaint case was also filed by wife of applicant which was merged in the case registered by police vide order dated 25.06.2008 and charge under Section 494 of IPC was also framed. To prove the charge against applicant, prosecution exhibited five documents. They are, Ex.P1 Application by complainant, Ex.P2 FIR, Ex.P3 Seizure Memo, Ex.P4 Arrest Memo, and Ex.P5 Spot Map. Prosecution examined as many as 10 witnesses, including complainant, her brother, mother and father, along with other independent witnesses. They are, PW1 Phulmatibai (complainant), PW2 Kamlesh Kumar Pradhan (brother of PW1), PW3 Bodobai (mother of PW1), PW4 Sadanand (father of PW1), PW5 Yakab Das, PW6 Gajanand, PW7 Kunjram, PW8 Jagdeesh, PW9 RN Saxena, PW10 Brishbhanu Sahu. Statement of applicant/ accused was recorded under Section 313 CrPC in which he pleaded his innocence and false implication in the case. He examined DW1 Sushil Kumar, DW2 Rakshapal, in his defense and also produced some documents, one of which is Ex.D3, stated to be in handwriting of complainant.
3. Learned Magistrate upon appreciation of documentary and oral evidence, came to conclusion that prosecution failed to prove charge under Section 494 IPC against applicant and other three accused persons and charge under Section 498A of IPC against applicant held to be proved, passed judgment of conviction and imposed punishment of rigorous imprisonment of one year and fine of Rs.500/-, in default of payment of fine, 15 days additional imprisonment. Judgment of conviction and sentence passed by learned Magistrate/trial Court CRR 180 of 2011 3 was challenged in appeal under Section 374 of CrPC before the Additional Sessions Judge, Mahasamund. Appellate Court, who dismissed the appeal filed by applicant by impugned judgment.
4. Smt Indira Tripathi, learned counsel for the applicant submitted that complainant/wife lodged absolutely false and baseless written report against applicant. She contended that applicant witnessed illicit relationship between complainant and her brother-in-law (jija). Thereafter, he called DW1 Sushil Kumar and DW2 Rekhpal, informed them and also convened a meeting in his house. During meeting, complainant admitted her guilt and wrote on a piece of paper in her own handwriting that she will not commit such mistake in future, which is marked as Ex.D3. There are material contradictions and omissions in statements of prosecution witnesses. She submits that in written report there is no allegation of demand of dowry but in oral statement of complainant, her brother, mother and father made allegations to this effect that complainant was being harassed and ill treated for demand of dowry. She further pointed out that in written complaint there is no allegation that complainant was administered any poisonous substance, but it has come only in oral evidence. Nature of oral evidence brought on record by prosecution witnesses is sufficient to arrive at a conclusion that allegation levelled against applicant is false and baseless. Case of prosecution and statement/ evidence are suspicious, which cannot be relied upon as it is, more so, to convict the applicant under Section 498-A of IPC. Both the courts below have not properly evaluated evidence available on record, and arrived at a wrong conclusion that prosecution proved the charge levelled against applicant under Section 498A of IPC. In alternate, she submits that even if the Court comes to the conclusion after going through oral and documentary evidence available on record, that prosecution proved charges under Section 498A IPC levelled against applicant, CRR 180 of 2011 4 then also, considering period of pendency of criminal proceedings against applicant, punishment be reduced from one year RI to the period already undergone, which is about 23 days as appearing from judgment of Appellate Court.
5. Shri Ishan Verma, learned State counsel opposes submissions of learned counsel for the applicant and would submit that complainant (wife of applicant) lodged written report making specific allegations of ill treating, assaulting, harassing her, and further, that applicant kept one another girl-Nalini as his wife. There is further allegation that complainant along with children were left in her parents' house by applicant. Prosecution examined as many as 10 witnesses including complainant, her brother, mother, father, and residents of her village. In their evidence, they stated that, after marriage, dispute between applicant and complainant started. Applicant left complainant in her parental house. Community meeting was held in which applicant agreed to pay maintenance of Rs.5,000/-, 15 bags of paddy and also some immovable agriculture property to complainant. All witnesses stated that ill-treatment and harassment was on account of demand of dowry. He submits that judgment passed by learned trial Court as well as Appellate Court are based on evidence available on record, which do not call for any interference.
6. I have heard learned counsel for the parties and also perused record of trial Court.
7. Marriage of applicant with complainant was solemnized in the year 1998. Complainant, wife of applicant filed ExP1 written report dated 15.9.2006, based upon which FIR was registered against applicant for offence defined under Section 498A of the IPC. After investigation, police submitted final report before the court of competent jurisdiction against him for offence 498A and 494 CRR 180 of 2011 5 of IPC. Learned trial court, on the basis of material available in charge sheet, framed charges against applicant for aforementioned offence. During pendency of trial, complainant filed one complaint case against Bhursabo, Smt.Padma and Smt Nalini for offence under Section 494 read with Section 109 of IPC. Complaint case was merged with the Police case. Learned trial Court after conclusion of trial, found the charges under Section 494 of IPC to be not proved and acquitted applicant, BhurSabho, Smt Padma and Smt Nalini from charges under Section 494 read with Section 109 of IPC. Trial Court held that charge under Section 498A against applicant to be proved and convicted him.
8. Written report submitted by complainant is available on record as Ex.P1 under her signature. This complaint is submitted before the Superintendent of Police, Distrcit- Mahasaumd. Allegations in the complaint are against applicant of assaulting her without any reason and further there is allegation of bringing another girl of community as wife. She made an application before members of the community for holding a meeting which was convened in village Bijepur. Decision taken in the meeting was not acceptable to her. In written complaint, there is no allegation against any other family member of any nature or against applicant of ill treatment and harassment on account of demand of dowry. Contents of written complaint is made part of ExP2 FIR. Complainant was examined as PW1. According to her statement, she got married with applicant in the year 1998. In her oral evidence, she made allegation that her husband, father-in-law and mother-in- law started harassment from the first day of marriage that she has brought less dowry and started making demand of TV, Motor Cycle and Cash amount of Rs.20,000/-. She further made allegation against her in-laws that she was ill treated on account of giving birth to three girl children. PW2 Kamlesh Kumar Pradhan (brother of the complainant) in his examination in chief stated that complainant CRR 180 of 2011 6 and applicant were married about 10 years ago. From one year, applicant started assaulting his sister. In cross examination, he stated that complainant resided properly only for 15 days - 1 month and thereafter, applicant started assaulting her. He also admitted that, in his statement recorded under Section 161 CrPC by Police, not stated that applicant used to say that he was not given vehicle and TV. PW3 Bodobai (mother of complainant) in her examination- in- chief made statement that after marriage, applicant harassed her daughter on the ground that she has not brought proper dowry. Applicant pressurized her daughter to bring motorcycle and Rs.20,000/-. Sadanand (father of complainant) was examined as PW4. In his examination-in-chief, he made allegation that after 2-4 months of their marriage, applicant started demanding dowry from his daughter. Her father-in-law also used to harass her. After assaulting his daughter, applicant left his daughter in his house. He also stated that in village meeting, applicant stated that he will not harass his daughter. Thereafter, his daughter was left in his house, stating that applicant will keep her only after getting Rs.20,000/-.
9. Yakab Das, resident of parental village of complainant is PW5. This witness also made statement of ill treatment and harassment on account of dowry, applicant made demand of TV, Fridge, motorcycle and Rs.50,000/- In para-6 of his cross examination he made statement that she resided in her matrimonial home happily for about 10-12 years. PW6 Gajanand, resident of parental village of complainant made statement that from the date of marriage complainant was harassed and ill treated for demand of dowry. PW7 Kunjram, resident of parental village of complainant in his evidence stated that complainant was being harassed as she gave birth to three girl children and also for dowry. Statement recorded under Section 161 of CrPC, of brother of complainant is marked as Ex.D1. In his statement he has not made any CRR 180 of 2011 7 allegation of ill treatment, or harassment by applicant for demand of dowry, but only stated that after 2-4 years of marriage, applicant started abusing and assaulting his sister. In statement recorded under Section 161 of CrPC of Sadanand, father of the complainant, entire allegation is of ill treatment, harassment and assault after birth of three girl children. He further made allegation that applicant made allegation that three daughters are not his children and asked complainant to bring Rs.20,000/-.
10. From the aforementioned evidence of prosecution witnesses, it is apparent that all the witnesses made different statements regarding date of ill treatment and harassment to complainant and also items of demand by applicant, as alleged against him. There is improvement in allegation of ill treatment, harassment for demand of dowry which is not there in written complaint. In the evidence of PW1 complainant, she made statement that she got complaint prepared by one Shyamsundar (in Para-9) and further made statement that she got it typed at village-Saankra. In the written report, she has not made any allegation of ill treatment, harassment or assault for demand of dowry. It is not the case where complainant after happening of some incident, directly went to police station and lodged report, and therefore, some fact is missed out but it is a case where the complainant while residing in her parents' house for long time, got the complaint prepared by other person and thereafter, got it typed and submitted before the police. The complaint was drafted with cool mind. This improvement in the case by prosecution witnesses in their oral evidence is material improvement which entirely changed the allegations. Further, there is contradiction in the evidence of prosecution witnesses of period of starting ill treatment and harassment which is also a material contradiction in their evidence. PW5, PW6 independent witnesses, and residents of parental village of complainant stated that she resided happily CRR 180 of 2011 8 for about 10-12 years, from which it is evident that after marriage, for a long time, there was no complaint of any ill treatment, harassment by applicant for any reason.
11. Another aspect of this case is that complainant lodged written report only on 15.09.2006, under her own signature. PW1 Complainant in her evidence stated that on 24.01.2006, applicant left her at her parents' house along with her three girl children, which also does not appear to be correct in view of evidence of other prosecution witnesses. PW2 Kamlesh Kumar Pradhan, brother of complainant, in para-5 of his evidence stated that applicant left complainant along with her girl children only about four years ago. Evidence of PW2 was recorded on 09.04.2008 and according to his evidence, complainant is residing in her parents house since 2004. PW3 mother of complainant also made statement that complainant is residing in her house since last three years. Similarly PW4 father of complainant stated that complainant is residing with him since three and half years and further made statement that applicant again performed marriage with other woman about three years ago. PW7 Kunjram in his evidence admitted that applicant along with 15-20 persons, complainant and her children came to his village on tractor in the month of June, 2004.
12. From the aforementioned evidence it is evident that complainant started residing in her parents house since about more than two years from lodging of the report, in written report there is no allegation of demand of dowry, nor PW2 Kamlesh Kumar Pradhan in his statement recorded under Section 161 CrPC has made any allegation of demand of dowry. It is also apparent that complainant is residing in her parents' house since she was left by applicant on tractor along with 15-20 persons. In a case of allegation under Section 498A of IPC prosecution is required to prove charges beyond all reasonable doubts.
CRR 180 of 2011 9
13. Hon'ble Supreme Court in case of State of West Bengal Vs Orilal Jaiswal and another (1994) 1 SCC73 has held thus:
"15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in the civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498A I.P.C. and Section 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Eater v. Bater (1950) 2 All ER 458 at p.459 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter."
14. In case of State of Andhra Pradesh vs M.Madhusudhan Rao reported in (2008) 15 SCC 582, Hon'ble Supreme Court observed that harassment simpliciter is not cruelty and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to cruelty punishable under Section 498A of IPC, and held thus:
"17. Thus, providing a new dimension to the concept of "cruelty", clause (a) of Explanation to Section 498-A I.P.C. postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute "cruelty". Such wilful conduct, which is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amount to "cruelty". Clause (b) of the Explanation provides that harassment of the woman where such harassment is with a view to coercing CRR 180 of 2011 10 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, would also constitute "cruelty" for the purpose of Section 498-A I.P.C.
18. It is plain that as per clause (b) of the Explanation, which, according to learned counsel for the State, is attracted in the instant case, every harassment does not amount to "cruelty" within the meaning of Section 498-A I.P.C. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her to meet an unlawful demand. In other words, for the purpose of Section 498-A I.P.C. harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to "cruelty" punishable under Section 498-A I.P.C."
15. In the case at hand, there is no allegation of demand of dowry in written complaint, and in statement recorded under Section 161 of CrPC of PW2 Kamlesh Kumar Pradhan, brother of complainant also, there is no allegation of ill treatment, harassment or assault on account of demand of dowry.
16. Applicant took defense that there was some mistake on the part of complainant which she admitted in village meeting dated 17.12.2004 which was also written on a piece of paper. PW7 Kunjram admitted of the 3 rd meeting in the year 2006, though he mentioned as in the month of May. PW2 Kamlesh Kumar Pradhan in his evidence has not specifically denied the meeting. He stated that some undertaking was given by his sister, but he is not aware of it.
17. Applicant examined two defense witnesses DW1 Sushil Kumar and DW2 Rakshpal. DW1 in his evidence stated that complainant was given counseling. Thereafter, there was comprise between the parties, and she gave an undertaking in her own handwriting, marked as Ex.D3. He also denied any ill CRR 180 of 2011 11 treatment, harassment or assault by applicant to complainant. DW2 also made similar statement.
18. In light of aforementioned evidence of defense witnesses, if the fact of lodging report vide Ex.P1 is looked into, it is apparent that report is lodged on 15.09.2006. Prosecution witnesses i.e. PW2, PW3 and PW4 have made statement that complainant is residing in her parents house since last 3-3.5 years which means, since 2004 she was residing in her parents house. PW1 complainant in her evidence admitted that if the applicant would give maintenance, she had not lodged report against him. She wanted separate maintenance from applicant. PW3 mother of complainant in her statement admitted that report was lodged only when applicant not gave maintenance. PW4 father of complainant also admitted that in a meeting it was decided that both will reside separately. Applicant gave Rs.5,000/- but not gave 15 bags of paddy as agreed. On the say of community member, report was lodged.
19. The proximity of time of lodging complaint also is one of the factor for considering and weighing the correctness of allegation of cruelty of demand of dowry. From the contents of written report of complainant it appears that main reason of complainant for not residing with applicant is on allegation of bringing another woman. This allegation was found not proved by trial court, applicant and all other co-accused were acquitted from charge under Section 494 of IPC.
20. From the entire evidence available on record, what could not be overlooked is that, since about two years prior to date of alleged report complainant was residing at her parents house and also evidence of complainant that if applicant would have paid maintenance, she may not have lodged report.
CRR 180 of 2011 12
21. Hon'ble Supreme Court in case of Manju Ram Kalita Vs State of Assam reported in (2009) 13 SCC 330 has considered "cruelty in the contest of Section 498A of IPC" held thus:-
"21."Cruelty" for the purpose of "Section 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity of seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as "cruelty" to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
22. Upon considering present case in light of aforementioned dictum of Hon'ble Supreme Court, it is apparent that prosecution witnesses stated before trial Court that applicant brought complainant and her children on a tractor along with 15-20 persons which shows that it is not the complainant, who was ousted or came to her parents' house alone, frustrated with conduct of applicant or his family members. In fact, applicant along with 15-20 persons came on a tractor along with complainant and her children to her parents house for leaving her, from which it can be inferred that allegation of demand of dowry to be not correct, more so, when there is no such allegation in written report Ex.P1.
23. From the aforementioned evidence and facts available on record, I am of the view that prosecution failed to prove beyond reasonable doubt that applicant ill treated, harassed and assaulted complainant/wife for demand of dowry, and therefore, learned Court below erred in recording a finding that prosecution proved that applicant has committed offence under Section 498A IPC.
CRR 180 of 2011 13
24. For the foregoing discussions, impugned judgment passed by appellate Court, as well as judgment passed by trial Court, convicting appellant under Section 498A is not sustainable and it is hereby set aside.
25. Applicant is on bail. His bail bond shall be discharged.
26. Criminal Revision is allowed.
Sd/-
(Parth Prateem Sahu) JUDGE padma