Mental trauma cannot be ignored even if physical cruelty has been stopped by the husband: Jharkhand High Court

 1 Cr. Revision No. 495 of 2012 IN THE HIGH COURT OF JHARKHAND AT RANCHI Amrendra Kumar son of Gorak Nath Ganjhu ..... … Petitioner 1. The State of Jharkhand. 2. Punita Devi w o Amrendra Kumar .…. … Opposite Parties Versus CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opposite Party State : Mr. Jitendra Pandey A.P.P. : Mr. Vibhor Mayank Advocate Through Video Conferencing Pronounced on 09.04.2021 C.A.V. on 25.03.2021 1. Heard Mr. Vibhor Mayank learned counsel for the petitioner. 2. Heard Mr. Jitendra Pandey learned A.P.P. for the opposite party State. The present criminal revision has been filed challenging the legality propriety and correctness of the Judgment dated 25.5.2012 passed by the learned Principal Sessions Judge Latehar in Criminal Appeal No. 8 of 2010 whereby the learned Appellate Court has been pleased to dismiss the appeal preferred by the petitioner against the Judgment of Conviction and Order of Sentence dated 20.9.2010 passed by the learned Judicial Magistrate 1st Class Latehar in Complaint Case No. 07 T.R. No. 1410. The petitioner was convicted by the learned Trial Court for the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of three years and also a fine of Rs. 10 000 . It was further directed that in case of default in payment of fine the petitioner would further undergo simple imprisonment for six months. Arguments on behalf of the Petitioner The learned counsel appearing on behalf of the petitioner has submitted that the impugned orders are perverse in as much as the case does not come under the definition of “cruelty” either under Explanation of Section 498A of the Indian Penal Code or under Explanation to the said Section. He submits that the allegation of 2 “cruelty” as defined under Explanationsorof Section 498A of the Indian Penal Code is totally absent in the present case. Learned counsel while referring to the impugned Judgments has submitted that there is no allegation of demand of any kind of property and as such the applicability of Explanation of Section 498A of the Indian Penal Code is ex facie excluded. He further submits that the petitioner was ultimately acquitted for the alleged offence under Section 3 4 of the Dowry Prohibition Act 1961. 6. He further refers to Explanation of Section 498A of the Indian Penal Code and submits that the said explanation is attracted only when the conduct of the accused is of such a nature that such ‘cruelty’ is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or heath of the woman and there is no dispute that such cruelty could be mental or physical. Learned counsel submits that there is no finding recorded by the learned courts below that the conduct of the petitioner was such which was likely to drive the complainant wife to commit suicide or to cause grave injury or danger to her life limb or health. He further submits that the only allegation which appears from the Trial Court’s Judgment is that the petitioner did not conduct gauna second marriage) of the complainant and this conduct of the petitioner was the cause for filing a complaint case against the petitioner. He submits that the impugned Judgment of Conviction and Order of Sentence cannot be sustained in the eyes of law. Learned counsel for the petitioner has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of State of A.P. Versus M. Madhusudhan Rao reported in15 SCC 582. The learned counsel appearing on behalf of the opposite party State on the other hand has opposed the prayer and submitted that there are consistent findings recorded by the learned courts below and there is no scope for re appreciation of the evidence before this Court in the revisional jurisdiction and accordingly the conviction and sentence which are impugned in the present case cannot be interfered with. Arguments on behalf of the opposite party State Findings of this Court 3 Learned counsel has however submitted that the revisional jurisdiction of this High Court is very limited and the arguments of the petitioner do not call for any interference by this Court in the revisional jurisdiction. The present case arises out of a complaint filed by the opposite party No. 2 before the learned court below on 16.1.2007 alleging inter alia that the complainant was married to the present petitioner on 02.07.2006. She spent about a week in the conjugal home and returned back to her parental house. Thereafter gauna was required to be performed which was deferred by the petitioner on the ground that some dowry items were to be sent to him at Gumla where the petitioner was residing in a rented premise. Ultimately fridge colour T.V. godrej etc. were purchased by the complainant’s father and given to the petitioner but still gaunawas not agreed upon. Eventually the circumstances led to filing of the complaint petition in the court of learned Chief Judicial Magistrate Latehar. Complainant wife was examined on solemn affirmation and five witnesses were also examined in course of the enquiry under Section 202 of the Cr.P.C. and prima facie case under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act 1961 was found against the present petitioner and his sister and trial began. 10. The complainant examined altogether four prosecution witnesses and one witness was examined on behalf of the defence. P.W. 1 is the father of the complainant P.W. 2 is the complainant herself P.W. 3 is an acquaintance and independent witness and P.W. 4 is the friend and acquaintance of the father of the complainant. D.W. 1 is the resident of Khunti. 11. The complainant had exhibited the following documents apart from the oral evidence: Exhibit 1 was the Marriage Certificate Exhibit 2 is the letter written by the petitioner Exhibit 3 is the legal notice issued at the instance of the petitioner Exhibit 4 is the letter written by the complainant Exhibit 5 is the petition dated 11.9.2007 which was filed by the complainant before the Sub Divisional Judicial Magistrate Latehar Exhibit 6 is the complaint petition filed by the 4 complainantExhibit 7 is the certified copy of the order sheet passed in Criminal Revision No. 5 of 2009 and Exhibit 8 is the copy of the judgment passed in Criminal revision No. 5 of 2009 related to order of maintenance under Section 125 Cr.P.C in favour of the complainant. 12. Complainant wife has been examined as P.W. 2 who has deposed that she was married to the petitioner on 2.7.2006 in a Temple and thereafter she remained in her in laws house for a period of one week and thereafter she returned back to her parents house but her husband never came to her parents house for the purpose of gauna and instead the husband wrote a letter that the things i.e. fridge colour T.V. godrej etc. may be sent to the house where mother in law and sister in law of the complainant were residing. Consequently these things were taken at their place but the mother in law and sister in law refused to keep the complainant by stating that she was of dark complexion and was illiterate and further demanded rupees two lakhs’ cash and one Hero Honda motorcycle. The complainant had also alleged that in the meantime on the basis of compromise between the complainant and the petitioner the petitioner had taken the complainant but left her at an isolated house and did not make any arrangement for her food etc. She had also stated that two unknown persons had threatened her that if she would insist to stay with the petitioner then they will kill her. Ultimately the complainant called her brother and went to her parents’ house. This fact was brought to the notice of the learned court below by filing a petition dated 11.09.2007 which was marked Exhibit 5. During her cross examination she stated that her father has given the articles during marriage on his own wish and at the time of marriage itself there was a demand of Rs.two lakhs and one Hero Honda motorcycle which her father could not meet and consequently her in laws family left her and petitioner had asked by writing letter to her father to fulfill the demand of various items which was fully complied with by her father and the goods were sent where only her sister in law and mother in law were present. She also deposed during cross examination that she came to know that the petitioner had also filed a 5 filed a false case. case for divorce but denied the suggestion that the complainant had 13. The father of the complainant was examined as P.W. 1 who has fully supported the prosecution case. He has deposed that when the complainant came back from her in laws’ place she did not make any complaint. He had received the letterissued by the petitioner regarding the demand of dowry. He has also stated that the petitioner never came to the house of P.W. 2 to take back the complainant and it was also not correct to say that the complainant had any illegitimate affair with anybody else. This witness has also been thoroughly cross examined by the defence and he has denied that the complaint case was filed after coming to know about the divorce case filed by the petitioner. 14. P.W. 3 is an independent witness. He has deposed that on 5.11.2006 he had taken fridge colour T.V. godrej almirah to the house of the petitioner where her mother and sister were residing and handed over the goods to them and they had asked for Rupees two lacs and a Hero Honda Motorcycle. He has stated in his cross examination that he has no relationship with P.W. 2 and he was the owner of the jeep which carried the aforesaid articles and he had also gone with the driver. He has further stated that he had lifted the goods from Ranchi from a person namely Murari and thereafter went to the house of the petitioner at Khunti. P.W. 4 has also fully supported the prosecution case. 15. This Court finds from the records that the accused persons were examined under Section 313 of the Cr.P.C. and specific queries were raised to the petitioner but the petitioner was in total denial and simply claimed to be innocent. 16. The petitioner had led a defence D.W 1. The said defence witness has stated that the complainant was married to the petitioner and she had been in the in laws’ place for eight days and thereafter she went back to her parents house but the gauna was not performed. He has stated that he lives next door to the petitioner. He has stated that the in laws of the complainant repeatedly asked for performance of the gaunabut the family members of the complainant did not come for gaunathe boy’s side has to go to the girl’s side but he did not know as to whether the petitioner had gone to the girl’s house for the purpose of performance of gaunato the house of the petitioner at Namkom. The learned court found that as per the letter Exhibit 2 the said goods were directed to be sent to Gumla and were sent to Namkom which created doubt in the prosecution case regarding the demand of dowry and further the prosecution has not produced any bill receipt etc. regarding the goods which were said to be sent on demand. 18. The learned trial court also recorded that so far as second marriage is concerned all the prosecution witnesses in their examination in chief have consistently stated that information for performance of gauna was given to the accused but they did not come for performance of gauna and they have also stated that the petitioner did not come to perform vidayi of the complainant and simply stated that he will not perform vidayi. The learned court also recorded that there are also allegations that demand of Hero Honda motorcycle and Rs.2 lakhs was additionally demanded. 19. The learned trial court recorded that there is clear evidence that the complainant had stayed with the petitioner only for a period of 8 days and thereafter the petitioner had not taken any interest to bring back the complainant and when during the pendency of the case the complainant was sent with the petitioner upon assurance that he would keep the complainant properly he went to Gumla and left the complainant at an isolated place and the complainant informed the entire incident to the court vide petition dated 11.09.2007thereto and not explanationto the said section as the demand of any property dowry could not be proved against the 21. The learned Appellate Court after scrutinizing the evidences on record dismissed the appeal filed by the petitioner by recording its finding at Paragraph 9 of the Judgment which reads as follows: “9. Consequently having perused the evidence of the four witnesses for the complainant as well as one witness for the defence it has been clearly established that marriage was solemnized between both the sides in the year 2006 at Nagar Temple and that on this pretext or the other the complainant wife had been driven out of the matrimonial home compelling her to find refuge at her paternal home and the Exhibit 3 which is the legal notice given by the appellant is an instance of acute cruelty as discussed above. The filing of the divorce case as against the complainant wife also stands admitted in the face of the willingness on part of the complainant wife for conjugal living. Obliging the complainant wife to stay isolatedly in her paternal home despite all the observances having been made on her part is indeed cruelty in law as against the complainant wife perpetrated by the appellant husband. Therefore the impugned findings of conviction and sentence under Section 498 A I.P.C. as against the appellant husband Amerandar Kumar is upheld and confirmed. The appellant Amerandar Kumar has been found guilty for the offence punishable under Section 498 A of the Indian Penal Code and further I am not inclined to interfere with the impugned sentencing.” 22. The arguments of the learned counsel for the petitioner that the only reason for which petitioner has been convicted is that the petitioner did not perform gauna with the petitioner is not correct. The learned courts below by consistent findings convicted the petitioner 8 ground for the offence under Section 498A of the Indian Penal Code on the firstly that the petitioner did not take any interest to perform gauna second marriage) with the complainant to take her back to her matrimonial house in spite of repeated requests made from the side of the girl and as per the response of the sole defence witness to the court’s question for the purposes of gaunathe boy’s side has to go to the girl’s side but he did not know as to whether the petitioner had gone to the girl’s house for the purpose of performance of gauna second marriage) secondly the petitioner alleged against the complainant that she has illegitimate relationship with someone else thirdly when the petitioner took the complainant with him under the orders of the court with an assurance that he would keep her properly he did not take her home and took her to an isolated place at Gumla and left her there for which the complainant had duly filed petition before the courtany 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 healthof the woman or b) harassment of the woman where such harassment is with a view 9 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.” 23. The Hon’ble Supreme Court in the case of State of A.P. Versus M. Madhusudhan Rao reported in15 SCC 582 has held in para 17 as under : 17. Thus providing a new dimension to the concept of “cruelty” clause of Explanation to Section 498 A IPC 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 of the Explanation provides that 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 would also constitute “cruelty” for the purpose of Section 498 A IPC. In the judgement passed by the Hon’ble Supreme court reported in has been held as under: 2019) 5 SCC 384it 14. “Cruelty” which is the crux of the offence under Section 498 A IPC is defined in Black’s Law Dictionary to mean “the intentional and malicious infliction of mental or physical suffering on a living creature esp. a human abusive treatment outrage &to Section 498 A of the Penal Code which define “cruelty”. The provisions contained in Section 498 A of the Penal Code undoubtedly encompass both mental as well as the physical well being of the wife. ..” 25. This Court is of the considered view that the conduct of the accused for an offence under Section 498 A read with explanation includes both the act and omission which has an underlying element of an emotional distress and mental agony. In the instant case the sufferings of the complainant at the parental home was a result of a deliberate omission by the petitioner by not performing Gauna which was required to be performed by the petitioner. The adverse effects on the mental health in the parental home out of such deliberate omission would in considered view of this Court amount to commission of cruelty within the meaning of Section 498A of Indian Penal Code when seen coupled with the act conduct of the petitioner who took the complainant along with him by the orders of the court with an assurance that he would keep her properly but left her at an isolated place at Gumla. Such Act of the petitioner certainly endangered her health safety life limb and well being both mental and physical and actually caused humiliation trauma amounting to emotional abuse and mental distress. The learned appellate court has already recorded a finding of acute cruelty to the complainant at the hands of the petitioner by appreciating the materials on record. 27. This Court is of the considered view that the impugned judgements reflect concurrent findings with regard to the ingredients of 11 Penal Code. ‘cruelty’ as defined under explanationof section 498A of the Indian The Hon’ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in5 SCC 659 at para. 9 as under: “Incidentally the object of the revisional jurisdiction as envisaged u s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals.1 JCR 684at para. 13 as follows: “It is well settled that revisional interference may be justified where: i) the decision is grossly erroneous. ii) there is no compliance with the provisions of iii) the finding of fact affecting the decision is not based on evidence. iv) material evidence of the parties is not considered v) judicial discretion is exercised arbitrarily or 30. This Court finds that none of the above criteria for interference in the impugned judgement in revisional jurisdiction are satisfied in the instant case. This Court finds that the findings recorded by the learned courts below are neither unreasonable or perverse. From perusal of the 12 impugned judgements this Court is of the considered view that there has been no miscarriage of justice arising from the judgements of conviction. The impugned judgements do not suffer from any misconception of law or irregularity of procedure. The learned courts below have not committed any illegality or material irregularity or impropriety in passing the impugned judgment of conviction. This Court is of the considered view that substantial justice has been done and there is no failure of justice accordingly no interference is called for on the point of conviction of the petitioner. In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case this Court is of the considered view that the learned courts below have passed well reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioner. There being no perversity or illegality in the impugned judgements of conviction no interference is called for. 32. So far as the point of sentence is concerned this Court finds that the complaint case was filed as back as in the year 2007 and about 14 years have elapsed the petitioner has faced the rigors of the criminal case for a long time and as per the trial court judgement the present offence appears to be the first offence of the petitioner. In addition to the aforesaid keeping in mind the manner in which the offence has been committed this Court is of the considered view that the facts and circumstances of the case does not call for maximum sentence to the 33. Accordingly this Court is of the considered view that the ends of justice would be met if the sentence of the petitioner is modified to some extent. Accordingly the sentence of the petitioner is modified and reduced to rigorous imprisonment for a total period of one year and fine amount is enhanced to Rs.1 00 000 to be deposited by the petitioner before the learned court below within a period of four months from the date of communication of this judgement to the learned court below. The fine amount so deposited is directed to be remitted to the complainant of the case after due identification. In case of non deposit of the aforesaid 13 fine amount within the stipulated period the petitioner would further serve simple imprisonment for a period of six months. 34. As a cumulative effect of the aforesaid findings this criminal revision petition is hereby disposed of with modification of sentence. 35. Bail bond furnished by the petitioner is hereby cancelled. 36. Pending interlocutory application if any is closed. 37. Let the lower court records be immediately sent back to the 38. Let a copy of this order be communicated to the learned court learned court below. below through ‘e mail FAX’. Amitesh Saurav 

Summary: Although the physical cruelty committed in the house of marriage may not have stopped and those actions do not take place in a family home it may not be clear that the psychological trauma and distress caused by the actions of the husband, which, if any, obliged the woman to leave the house of the marriage and shelter with her parents, will continue to persist at the parental home. The judgement was passed by the High Court of Jharkhand in the case of Amrendra Kumar vs The State of Jharkhand [Cr. Revision No. 495 of 2012] by Single Bench consisting of Hon’ble Justice Justice Anubha Rawat Choudhary. The facts of the case are that the petitioner was convicted by the learned Trial Court, for the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years and also a fine of Rs. 10,000/-. It was further directed that in case of default in payment of fine, the petitioner would further undergo simple imprisonment for six months. The learned counsel for the petitioner has submitted that the impugned orders are perverse, in as much as, the case does not come under the definition of “cruelty” either under Explanation (a) of Section 498A of the Indian Penal Code or under Explanation (b) to the said Section. He submits that the allegation of “cruelty”, as defined under Explanations (a) or (b) of Section 498A of the Indian Penal Code is absent in the present case. Learned counsel while referring to the impugned Judgments has submitted that there is no allegation of demand of any kind of property and as such the applicability of Explanation (b) of Section 498A of the Indian Penal Code is ex-facie excluded. He further submits that the petitioner was ultimately acquitted for the alleged offence under Section 3/4 of the Dowry Prohibition Act, 1961. The learned counsel for the respondent has opposed the prayer and submitted that there are consistent findings, recorded by the learned courts below and there is no scope for re-appreciation of the evidence before this Court in the revisional jurisdiction and, accordingly, the conviction and sentence, which are impugned in the present case cannot be interfered with. However, he submitted that the revisional jurisdiction of this High Court is very limited and the arguments of the petitioner do not call for any interference by this Court in the revisional jurisdiction. While relying on the supreme court case Rupali Devi Vs. State of Uttar Pradesh and Others it was held that “Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression “cruelty” appearing in Section 498-A of the Penal Code.”