IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.551 of 2010 1. KRISHAN PRASAD 2. Saroj Devi, W/o Krishna Prasad. Both are R/o Moh. Maranpur, P.S. Civil Lines, Dist. Gaya. Versus The STATE OF BIHAR ---with--- CR. REV. No.285 of 2010 TINKU SAO, S/o Krishna Prasad, R/o Moh. Maranpur, P.S. Civil Lines, Dist. Gaya. Versus The STATE OF BIHAR ----------- For the Petitioners : Mr. Sudhir Singh. Mr. Raghwanand. For the State : Mr. Gopesh Kumar. ---- 4/ 17.05.2010 Heard learned counsel for the petitioners and learned counsel for the State. Both the revision applications are filed against the Judgment and order dated 11.01.2010 passed in Cr. Appeal No. 87 of 2009/57 of 2009 by the learned Additional District and Sessions Judge-II, Gaya whereby and whereunder the Judgment of conviction and order of sentence dated 05.02.2009 passed by the learned Judicial Magistrate, Fist Class, Gaya in connection with G.R. Case No. 205 of 2006 and Trial No. 729 of 2009 has been affirmed. Prosecution case in brief is that informant, Sabita Devi was married to accused-petitioner, Tinku Sao, four years earlier to the alleged occurrence. After marriage, informant went to her matrimonial house and stayed there only for two days. Thereafter, 2 informant returned to her parental house and stayed there for a period of one year. It is said that she was abused and assaulted by the accused persons in the matrimonial house and lastly, ousted after assault. Petitioners are convicted and sentenced for the offence under Sections 498A and 323 of the I.P.C. which is confirmed in appeal also. Legality, correctness and propriety which has been questioned in the case limited on conviction under Section 498A of the I.P.C. and sentence under Section 323 of the I.P.C. For the offence under Section 498A, it is said that allegation if is accepted in totality then also no offence under Section 498A is made out as ingredients for constituting the offence is not made out. Section 498A of the I.P.C. runs as follows:- 498-A. Husband or relatives of a 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. 3 Cruelty is defined in explanation either in willful conduct which is of such nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the women; or such harassment of the women where such harassment is with a view to coercing or any person related to her to meet any unlawful demand for any property or valuable security or is on account to failure by her or any person related to her to meet such demand. There is no mention of any demand in the case nor alleged act of petitioners driven the complainant to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the women. So, the conviction under Section 498A is not liable to be sustained. Now, the only offence remains under which petitioners are convicted is offence under Section 323 of the I.P.C., for which maximum period of one year is awarded which in no case can be justified without clarifying not entitling relief under the Probation of Offenders Act. According to the learned counsel, petitioners were entitled for the relief under the Probation of Offenders Act either to be released on admonition or furnishing of probation bond even then 4 husband is in custody since 15.02.2010 and father-in- law and mother-in-law are in custody since 01.04.2010 and 19.03.2010 respectively. If that is observed sufficient towards punishment that will also solve the purpose to meet the ends of justice. On this point, I agree with the submission of the learned counsel for the petitioners. Accordingly, both the revision applications are partly allowed conviction under Section 498A of the I.P.C. is set aside and the sentence is modified and minimized to the period undergone. Consequence thereafter above named petitioners are directed to be released forthwith, if not wanted in any other case. Further, it is observed that conviction is not for the offence which can fall under moral turpitude. Rest of the Judgment and order dated 11.01.2010 passed in Cr. Appeal No. 87 of 2009/52 of 2009 by the Additional District and Sessions Judge-II, Gaya and the order dated 05.02.2009 passed by the Judicial Magistrate, First Class, Gaya in G.R. Case NO. 205 of 2006, Trial No. 729 of 2009 are hereby confirmed. Let the order be communicated to the trial court through F.A.X. at the cost of the petitioners. Shail/A.F.R. ( Mandhata Singh, J.)