1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 66 of 2005. Judgment reserved on : 18.10.2011. Date of decision: 17.11.2011. Roshni Devi & ors. ......Petitioners. Versus State of H.P. ......Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Vijay Pandit, Advocate with Mr. M.A.Khan, Advocate. For the Respondent : Mr.J.S.Rana, Assistant Advocate General. Kuldip Singh , Judge. The petitioners having been convicted and sentenced by the two Courts below have filed this revision against judgment dated 04.05.2005 passed by learned Sessions Judge, Hamirpur, in Criminal Appeal No.7 of 2004 affirming judgment dated 10/11.06.2004 passed by learned Chief Judicial Magistrate, Hamirpur in Criminal Case No. 299-II of 2001. 2. The prosecution case, in brief, is that complainant Anita Sharma was married to Sanjeev Kumar on 21.07.2000. Roshni Devi is mother, Kamal Dev brother and Sunita Devi sister-in-law of Sanjeev Kumar. It has been alleged that after marriage the accused maltreated the complainant and demanded dowry from her. 3. The complainant was tortured and given beatings. On 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 26.09.2001 the complainant was given beatings by accused and they demanded dowry from her. Roshni Devi gave sickle blow to the complainant. The occurrence was reported to the police, but the matter was amicably settled. 4. On 01.10.2001 the complainant went to the house of accused, she came to know that accused have made plan to do away with her life. The complainant reported the matter to the police and FIR came to be registered. The police took into possession sickle with which the accused had given beatings to the complainant. The complainant was got medically examined. On completion of investigation, challan was presented in the Court. 5. The accused were charged for offences punishable under Sections 498-A, 323, 506 read with Section 34 IPC. The accused were charged accordingly, they pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses to prove the case. The statements of accused were recorded under Section 313 Cr.P.C. They denied the prosecution case, but led no evidence in defence. The Chief Judicial Magistrate on 10.06.2004 convicted the petitioners under Section 498-A read with Section 34 IPC and acquitted them under Sections 323, 506 read with Section 34 IPC. On 11.06.2004, the petitioners were sentenced to undergo simple imprisonment for six months and fine to the tune of `1,000/- each for offence punishable under Section 498-A read with Section 34 IPC. The appeal filed by petitioners was dismissed by learned Sessions Judge on 04.05.2005, hence petitioners have filed the present petition. 6. I have heard learned counsel for the petitioners and Mr. 3 J.S.Rana, learned Assistant Advocate General, representing the State. It has been submitted on behalf of petitioners that two Courts below have misconstrued and mis-interpreted the evidence on record. It has been submitted that the inference drawn from the evidence by the two Courts below is wrong. The charge has not been proved. The prosecution has miserably failed to prove physical and mental cruelty to the complainant. The compromise Ex. PW5/A has been misconstrued. The petitioners have been wrongly and illegally convicted under Section 498-A read with Section 34 IPC. The prayer has been made for acquittal of the petitioners. The learned Assistant Advocate General has supported the impugned judgment. It has been submitted that in revision the scope is very narrow, re-appreciation of the evidence is not permissible. The two Courts below have rightly appreciated the material on record and no fault can be found with the impugned judgment. 7. The petitioners were charged that on or about 02.10.2001 at village Deh the accused in furtherance of common intention treated the complainant, a married woman, with cruelty,thereby committed an offence punishable under Section 498-A read with Section 34 IPC. The other part of the charge pertains to Sections 323, 506 read with Section 34 IPC which is not relevant as the petitioners have been acquitted with respect to that charge. Ex. PW9/A is the FIR got registered by PW-10 Anita Sharma complainant. Ex. PW8/A is the MLC of PW-10 Anita Sharma. Ex. PW10/A is the complaint dated 27.09.2001 of PW-10 addressed to S.H.O., Police Station, Hamirpur. Ex. PW5/A is the compromise dated 27.09.2001. Ex. PW1/A is the recovery memo of 4 sickle. 8. PW-2 Rakesh Sharma is the younger brother of complainant Anita. He has stated that Anita and Sanjeev Kumar were got married on 21.07.2000, three months after the marriage in-laws of Anita started demanding dowry, they treated her with mental cruelty. The mother-in- law of Anita eight months after the marriage started saying that Anita had not conceived, she would arrange second marriage of her son. On 26.09.2001, he and his father were called at Bohni by her sister, they went there. The in-laws of his sister misbehaved with them. In the evening, he and his sister went to Police Station, Hamirpur, for lodging the report. On 27.09.2001 the matter was compromised. On 26.09.2001 the accused gave blow from reverse side of sickle on the head of his sister. He has stated that his sister is staying with them since 02.10.2001. She had brought her articles when she came to stay with them on 02.10.2001. 9. PW-3 Bimla Devi is the mother of the complainant Anita. She has stated that for first 5-6 months after the marriage Anita was kept properly, but thereafter she was tortured. One year after the marriage, they started beating Anita. The in-laws of her daughter told them to take back their daughter, they could not tolerate her, she would be killed. PW-3 also stated that at the time of marriage no demand was raised. PW-5 Nand Lal Vice-President of Gram Panchayat, Bohni, has stated that father and brother of Anita came to his house and said that Anita has been beaten by her mother-in-law and sister-in-law( Jethani), they requested him for intervention. He went to the house of Roshni Devi with them and found marks of beatings on the legs of Anita. The 5 husband of Anita started giving beatings to Anita. The parties started quarrelling. He asked father and brother of the girl to approach the police. They approached the police and later on matter was compromised vide compromise Ex. PW5/A which was also signed by him. This witness was declared hostile and cross-examined by the Public Prosecutor. In cross-examination, he has answered the question in affirmative that the case which was got lodged by Anita was compromised. 10. PW-6 Jagdish Chand is the father of complainant. He has stated that the complainant was kept properly by her in-laws for about one year. Thereafter, they started taunting for dowry. The mother-in-law gave sickle blow from the reverse side on the leg of the complainant. A written complaint was given to S.H.O., Hamirpur. Police visited the spot, but before that compromise Ex. PW5/A was effected. But, thereafter again they gave beatings and did not give food to Anita and they made a plan to keep Anita in the cowshed. He has stated that he went to the house of her daughter on 26.09.2003. 11. PW-8 Dr. R.S. Dhatwalia has stated that he examined Anita Sharma on 02.10.2001 and issued MLC Ex. PW8/A. He has stated that the injuries are possible from the reverse side of the sickle. PW-9 Gian Chand has proved FIR Ex. PW9/A. 12. PW-10 Anita Sharma has stated that everything was all right in the first three months after the marriage, but thereafter her mother-in-law, brother-in-law, sister-in-law and husband started taunting her for dowry. She has stated that her husband used to come late at night after taking liquor and used to beat her and demand dowry. The 6 brother-in-law, sister-in-law and mother-in-law also used to beat her and instigate her husband. On 26.09.2001 her mother-in-law gave her beatings from the reverse side of the sickle. She gave complaint Ex.PW10/A in writing which was compromised on 27.09.2001 vide Ex. PW5/A. On 01.10.2001, she went to her in-laws' house, she was kept in the cowshed, she was not given food, she heard the accused saying that they would kill her. She escaped from there and went to her parents' house. She reported the matter vide Ex. PW9/A. She identified sickle Ex. P-1. In cross-examination, she has stated that when her mother-in- law gave beatings with the reverse side of the sickle, her father and brother were not on the spot. PW-11 Swami Ram is the Investigating Officer. The accused in their statements under Section 313 Cr.P.C. have denied the prosecution case. 13. The petitioners have been acquitted for offences punishable under Sections 323, 506 read with Section 34 IPC, however, they have been convicted for offence punishable under Section 498-A read with Section 34 IPC by the both the Courts below. Section 498-A IPC is as follows: “498A. 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 extend 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 7 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.” 14. It is, thus, clear from Section 498-A IPC that before punishing the accused, it must be proved that the husband or relative of the husband of a woman subjects the woman to cruelty. The cruelty has been explained in the Section itself, therefore, it is not necessary to go for definition of cruelty elsewhere. On the basis of allegations projected against the accused, Clause (a) of Section 498-A is not relevant, however, Clause(b) is relevant. Therefore, in the present case, it is to be seen whether the complainant has been harassed with a view to coerce her or any person related to her to meet any unlawful demand. 15. The learned counsel for petitioners has relied Preeti Gupta and another Versus State of Jharkhand and another (2010) 7 SCC 667 in which in the context of Section 498-A IPC the Supreme Court has observed as follows: “The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited 8 or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection.” 16. The learned counsel for petitioners has also relied Daud Mohamad Aga and others versus State 1996(1) HLR 376, where it has been held that to bring into the ambit of cruelty by husband, the harassment must be in furtherance to extract money unlawfully from the woman by a man. Unless these two ingredients are satisfied, no offence under Section 498-A can be alleged to have been committed. 17. The evidence led by the prosecution is to be appreciated in the light of charge against the accused which is to the effect that on or about 02.10.2001 at village Deh the accused in furtherance of their common intention treated the complainant with cruelty and thus committed an offence punishable under Section 498-A read with Section 34 IPC. The prosecution has led no evidence with respect to any incident dated 02.10.2001 so as to bring the case under Section 498-A IPC. The evidence led by the prosecution is either general or is with respect to such incidents for which the accused have not been charged. This type of evidence is irrelevant and both the Courts below have missed this glaring defect in the prosecution case while convicting and sentencing the petitioners under Section 498-A read with Section 34 IPC. 18. In FIR Ex. PW9/A there are general allegations against Sanjeev Kumar alleging that he used to say to complainant either to bring dowry from the parents or to go there. He used to come home taking liquor and used to give beatings to the complainant. It has been alleged that on 26.09.2001 the mother-in-law of the complainant gave 9 beatings to complainant with the reverse side of sickle. In FIR Ex. PW9/A only the alleged incident dated 26.09.2001 has been stated. The other incidents of demand of dowry and cruelty have not been stated in the FIR. In FIR Ex.PW9/A, there is no allegation with respect to any incident dated 02.10.2001. 19. Ex.PW10/A is the written complaint dated 27.09.2001 of complainant regarding the incident dated 26.09.2001. PW-10 Anita Sharma, complainant, has stated that she gave complaint Ex. PW10/A which was compromised on 27.09.2001 vide Ex. PW5/A. The incident of beatings with the sickle has also been stated in the complaint Ex. PW10/A. Once the complaint Ex.PW10/A has been compromised vide Ex. PW5/A, therefore, the prosecution cannot take benefit of the allegations made by complainant in Ex. PW10/A. In FIR, it has been alleged that on 01.10.2001 she returned to her in-laws' house, but she was asked to go back , failing which they would kill her by burning. This part of the statement of the complainant does not inspire confidence inasmuch as PW-2 Rakesh Sharma, brother of the complainant, has stated that complainant is staying with them since 02.10.2001. She had brought her articles when she came to stay with them on 02.10.2001. In case, the accused were so hostile to the complainant as alleged by her, then they would not have allowed her to take her articles and return to her parents' house with those articles. 20. PW-3 Bimla Devi, mother of the complainant has stated that at the time of marriage, no demand was raised. PW-6 Jagdish Chand father of complainant stated that complainant was kept properly by her in-laws for about one year. The marriage of complainant was solemnized 10 on 21.07.2000. In view of statement of PW-6, it is reasonable to infer that harassment and demand of dowry started from August, 2001 onward. The FIR was lodged on 02.10.2001. There is no specific evidence of harassment and demand of dowry from accused from August, 2001 to 02.10.2001. The incident dated 26.09.2001 had already been compromised vide Ex. PW5/A. It appears the Courts below were swayed by the general type of evidence led by the prosecution and failed to appreciate that the accused were charged that on or about 02.10.2001 they had treated the complainant with cruelty. It is significant to notice here that not even a single witness of the prosecution has stated anything regarding cruelty of petitioners towards the complainant on 02.10.2001. The two Courts below, thus, totally misdirected themselves in convicting and sentencing the petitioners for the charge for which they were tried. 21. The learned Assistant Advocate General has relied Section 464 Cr.P.C. and submitted that conviction and sentence of the petitioners cannot be said to be bad merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge. The learned Assistant Advocate General has submitted that the charge either be framed now by this Court and the case be remanded to the Court below for fresh trial. It is not a case of not framing of any charge or any error, omission or irregularity in framing the charge. In the present case, a specific charge has been framed, but prosecution has failed to prove the charge so framed by leading legal evidence. It is too late to remand the case after 10 years as prayed by learned Assistant Advocate General . The fact remains that 11 the two Courts below on the basis of material on record have erred in convicting and sentencing the petitioners under Section 498-A IPC read with Section 34 IPC. The conviction and sentence of the petitioners are not sustainable. 22. In view of above discussion, the revision is allowed. The judgment dated 04.05.2005 passed by learned Sessions Judge, Hamirpur,in Criminal Appeal No.7 of 2004 affirming judgment dated 10.06.2004 passed by learned Chief Judicial Magistrate, Hamirpur, in Criminal Case No. 299-II of 2001, is set aside, the petitioners are acquitted of the charge, fine amount, if any deposited by them be refunded to them. Their bail bonds are discharged. ( Kuldip Singh ), Judge. November 17 , 2011. (Krt)