Acquittal of petitioner for offences U/S.3 /4 of the Dowry Prohibition Act on technical ground, create no effect on his conviction U/S.498 of IPC: High Court of Jharkhand

 Anubha Rawat Choudhary J.: IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 2912 … … Versus … … Opp. Party Munna Ansari @ Md. Munna Ansari The State of Jharkhand CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Party C.A.V On: 22 03 2021 Ms. Rakhi Sharma Amicus Curiae Mr. Shekhar Sinha Advocate Pronounced On: 12 04 2021 1. Heard Ms. Rakhi Sharma learned Amicus Curiae appearing on behalf of the petitioner and Mr. Shekhar Sinha learned counsel appearing on behalf of the opposite party State. 2. The present revision application is directed against the Judgment dated 30th January 2012 passed by the learned Principal Sessions Judge Giridih in Cr. Appeal No. 33 of 2011 whereby the learned Appellate Court has dismissed the appeal preferred by the petitioner so far as his conviction under Section 498A of the Indian Penal Code is concerned. However the learned Lower Appellate Court has acquitted the petitioner for offence under Sections 3 4 of the Dowry Prohibition Act 1961. 3. The learned Trial Court had convicted and sentenced the petitioner vide Judgment dated 20.7.2011 for the offence under Section 498A of the Indian Penal Code for simple imprisonment for a period of six months and a fine of Rs.500 and also for offence under section ¾ of Dowry Prohibition Act for simple imprisonment of six months. The Trial Court’s Judgment was passed by the learned Sub Divisional Judicial Magistrate Giridih. Arguments for the Petitioner. 4. Learned amicus curiae appearing on behalf of the petitionerhas submitted that most of the witnesses are the relative of the lady and accordingly the learned court below has not scrutinized the evidences of the prosecution witnesses properly. She also submits that P.W. 5 is a doctor who has stated that there was no external injury found in her body and she only complained of body pain. She has submitted that although there is allegation of harassment but the demand of dowry has not been proved before the learned court below. She submits that as the demand of dowry was not proved therefore the learned appellate court had acquitted the petitioner for alleged offence under Section 3 4 of the Dowry Prohibition Act and since the petitioner was acquitted for offence under Section 3 4 of the Dowry Prohibition Act therefore the offence under Section 498A of the Indian Penal Code is also not made out. She has further submitted that there is no specific date of incident mentioned in the evidence and the victim has stated that she was tried to be burnt pouring kerosene and the neighbor had saved her but none of the neighbor has come forward for the prosecution evidence. 5. The learned amicus curiae has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sushil Kumar Sharma Vs. Union of India and Others reported in 6 SCC 281 para 19 to submit that there has been abuse in making allegations under Section 498A of I.P.C. regarding which judicial notice has been taken by the Hon’ble Supreme Court as well. She has also relied upon judgment passed by the Hon’ble Supreme Court in the case Wasim Vs. State NCT of Delhi) of reported in7 SCC 435 para 12 to submit that the basic ingredients for offence under Section 498A of I.P.C. has not been satisfied in the present case. 6. The learned amicus has further submitted that the entire allegation was levelled by the informant of the case as she was the Para Teacher and she wanted the petitioner to live with her at her working place and she was never interested in going to her in laws’ house and continue the matrimonial relationship. She submits that the petitioner has been falsely implicated in this case and the impugned judgment of conviction and sentence is perverse and is fit to be set aside. 7. During the course of hearing it transpired from the records that the petitioner had surrendered before the learned court below during the pendency of this case on 30.10.2012 and was released on bail on Arguments of the opposite party State 8. The learned counsel appearing on behalf of the opposite party State while opposing the prayer has submitted that in the case of concurrent findings of fact there is no scope for re appreciation of evidences on record and the victim and other witnesses have fully supported the prosecution case who have been fully cross examined by the defence and the learned court below had appreciated the evidences on record. So far as the acquittal of the petitioner for offence under Section 3 4 of the Dowry Prohibition Act 1961 is concerned he submits that the acquittal was done by the learned appellate court on the technical ground that the sanction for prosecution was not available and therefore the conviction under Section 3 4 of the Dowry Prohibition Act 1961 could not be sustained although the basic ingredients for the offence was present. He submits that in the case records the basic ingredients for offence under Section 498A of IPC is made out and the present criminal revision application is fit to be dismissed. 9. During the course of hearing the learned amicus appearing on behalf of the petitioner has also indicated that in case this Court is not inclined to set aside the conviction and sentence then the sentence of the petitioner be modified to some extent as the incident is of the year 2004 and more than 16 years have elapsed. 10. To this submission the learned counsel for the opposite party State has submitted that if in case any sentence is modified then under such circumstances some heavy fine amount be imposed to the petitioner and sentence may not be less than three months. Findings of this Court. 11. As per the prosecution case the informant is the wife of the petitioner married on 07.06.2001. It has been stated that at the time of marriage the petitioner was given cash ornaments a motorcycle and several other articles. It is alleged that at the time of settlement of marriage the accused persons had again demanded an amount of Rs.50 000 as cash which could not be fulfilled by the father of the informant. The informant went to her matrimonial home then again the said demand of cash was started from 18.10.2001 and she was treated with cruelty both mentally and physically. When she informed her father then Rs.25 000 was given to the petitioner who purchased a tractor but the behavior of the petitioner and her in laws did not change and again on 15.10.2003 a written complaint was given by the the Superintendent of Police. Thereafter again conciliation took place at Dhanwar police station and the informant started living with her husband. Meanwhile a child was also born. It has been further alleged that on 03.03.2004 all the accused persons conspired altogether to burn the informant caught hold of her and her husband started pressing her neck. She was also assaulted by leg and fists and her husband pressed her chest forcefully then she became unconscious. Thereafter her husband sprinkled kerosene oil on her body and other accused persons caught hold of her and when she raised alarm the neighbor assembled there and saved her life. It has also been alleged that the accused snatched ornaments worth Rs.25 000 and had driven the informant away from her matrimonial home. Anyhow she returned back to her parent’s home and got herself treated by Dr. Anil Kumar. She filed an application with injury report before the Superintendent of Police Giridih on 06.03.2004. On 18.03.2004 the informant’s husband came to her parents place and threatened to kill her. Accordingly the complaint was filed which was sent to the concerned police station for investigation under Section 156 Cr.P.C. On the basis of the information given by the informant a case was registered asP.S Case No. 1204 dated 24.7.2004 and the charge sheet was submitted under Section 498A 34 of the Indian Penal Code and Section 3 4 of the Dowry Prohibition Act. Altogether there were four accused and thereafter in the same case the charge sheet was further submitted against three more persons and both the charge sheet were merged and trial commenced against altogether seven accused persons including the petitioner. However accused Suleman Ansari absconded and his case was split up from others and remaining six accused faced the trial. During the course of trial altogether seven witnesses were examined. After closure of the prosecution evidence the statements of the accused persons were recorded under Section 313 of the Cr.P.C and the accused persons claimed themselves to be innocent. The defence also examined one defence witness as D.W.1. 13. P.W.6 is the informant herself. She has fully supported the prosecution case in her examination in chief and stated that she got married with the accused Munna Anasari in the year 2001 and has got a child from their wedlock but after some time her husband and the other members of his family started demanding Rs.50 000 as dowry and when she denied then they used to assault her. She has further stated that her father gave Rs.25 000 under compulsion to her husband for the purchase of a tractor but accused were not satisfied with the same and again demanded Rs.50 000 and when her father expressed his inability to fulfill the said demand the accused persons tortured and assaulted her and later on tried to burn her by sprinkling Kerosene Oil. Ultimately the accused drove her out with her child from her matrimonial house and she came back to her parents’ house. She was thoroughly cross examined and there was no material contradiction. However she admitted that her husband helped her during the course of her treatment when she fell ill. She also alleged that during her stay in matrimonial house her husband tortured her for non fulfillment of demand of dowry. 14. P.W.2 is the brother of the informant who has fully supported the prosecution case and has stated that there was a demand of Rs.50 000 as dowry and the accused persons tortured the informant. He has also stated that in compulsion his father had given a sum of Rs.25 000 to the petitioner husband for taking a tractor and after some time petitioner again demanded a cash of Rs.50 000 as dowry which was not fulfilled by his father. As a result of non fulfillment of the demand of dowry the accused persons started abusing and assaulting the complainant informant and lastly due to their torture the informant left her in laws place and returned back to her parents’ place. This witness was thoroughly cross examined by the defence and he had stated during his cross examination that no assault had taken place in his presence. He has also stated that the informant is a Para Teacher and wanted to stay with her husband but her husband was not ready to live with her at the place of her service. P.W.3 is the father of the informant who has also fully supported the prosecution case and his evidence is in line with the evidence of P.W.2 and P.W 6 which is apparent from the recording of the evidence by the learned court below. He has also stated that during the course of committing torture upon the informant the accused persons tried to burn the informant by sprinkling kerosene oil but they did not succeed and she was rescued with the help of her neighbor. This witness was also thoroughly cross examined by the defence and as per the learned Trial Court there were no contradictions in the evidence of P.W.3. The learned Trial Court also recorded that P.W.4 had also supported the evidence of the prosecution witnesses without any contradictions and was also cross examined. 16. P.W.5 is the Doctor who had proved the injury report marked as Exhibit 1 and has stated that at the time of examination of the informant she complained of pain which she sustained during the course of assault made by the accused persons. P.W.7 is the Investigating Officer of the case who has submitted the charge sheet in this case and has also supported the prosecution case. He has stated that all the prosecution witnesses had supported the prosecution case in the statements made before him. He has proved the formal FIR as Exhibit 2. 18. The petitioner was examined as a witness by the defence who stated that the petitioner was ready to keep his wife with him but his wife does not want to live with him. He has also stated that his wife is a Para Teacher and wants to live separately. Though the petitioner tried to reside with his wife but she is not willing to stay with him. He has denied the allegations made by the prosecution. 19. The learned trial court recorded that the examined witnesses have not specified the name of other accused persons except the name of the petitioner husband in the involvement of commission of torture or assault made to the victim informant for demand of Rs.50 000 as dowry and held the petitioner guilty of offence under Section 498 A of IPC as well as for offence under Section ¾ of Dowry Prohibition Act and acquitted rest of the accused who faced the trial by giving them benefit of doubt. The learned trial court sentenced the petitioner for simple imprisonment for each of the offences with fine of Rs.500 for offence under Section 498A of IPC. 20. The learned Appellate Court also scrutinized all the evidences on record and also considered the arguments advanced on behalf of the parties and recorded the finding that it appeared that all the prosecution witnesses have proved about the demand of dowry of Rs.50 000 and the informant was tortured by the petitioner husband. It further appeared that the petitioner had not only assaulted her but also attempted to set her ablaze. The learned Lower Appellate Court found that the prosecution has fully established the charges under Section 498A IPC against the petitioner husband. So far as the conviction under Section 3 4 of the Dowry Prohibition Act is concerned the learned Lower Appellate Court acquitted the petitioner on the technical ground on account of absence of sanction for prosecution under the provisions of Dowry Prohibition Act. Since this finding of the learned appellate court is not under challenge this Court is not deliberating any further on the legality or otherwise of the same. It has been argued that the petitioner having been acquitted for offence under Sections 3 4 of Dowry Prohibition Act 1961 his conviction under Section 498A of Indian Penal Code cannot be sustained. The aforesaid argument of the learned amicus is devoid of any merit in view of the fact that the petitioner has been acquitted for offence under Sections 3 4 of Dowry Prohibition Act 1961 by the learned appellate court on the point of technical ground of absence of sanction for prosecution under the said Act. So far as the ingredients of the offence under Section 498A of Indian Penal Code read with explanation thereof is concerned this Court finds that there are consistent findings recorded by the learned courts below regarding harassment of the informant wife at the hand of the present petitioner with the view to coercing her her father to meet unlawful demand of money and such harassment was on account of failure by her her father to meet such demand. All the prosecution witnesses have supported the demand of Rs.50 000 by the petitioner. In such circumstances this Court is of the considered view that the basic ingredients of offence under Section 498A of Indian Penal Code was fully satisfied and the learned courts below have given consistent findings and have rightly convicted the petitioner. 22. The learned Amicus has also referred to certain contradictions in the evidences on record by stating that it was the informant herself who wanted to stay separately with her husband and not with her in laws. During her cross examination she had stated that in the course of her treatment her husband had helped her. So far as the assault upon the informant is concerned the learned Amicus has referred to the evidence of P.W. 2 who in his cross examination had stated that no assault had taken place in his presence and had also stated that the informant is a para teacher and she wants to live with her husband but the petitioner is not ready to live with her at the place of her service. The learned Amicus has submitted that the Doctor did not find any external injury on the body of the informant. The learned Amicus has also submitted that no independent witness or any neighbor has been examined. 23. This Court is of the view that the learned courts below have duly scrutinized the evidences on record and the informant who is the victim of the case has fully supported the prosecution case and was thoroughly cross examined. The other material witnesses also supported the prosecution case and were also thoroughly cross examined. Merely because there is no independent witness the same by itself does not make the impugned judgments illegal irregular or perverse particularly when the prosecution witnesses have fully supported the prosecution case and the defence has duly cross the prosecution witness and there was no material their evidences. So far as appreciation of evidence of the doctor is concerned merely because there was no external injury found on the body of the informant when she was examined by the doctor the same does not create any doubt in the prosecution case as the doctor had proved the injury report as Exhibit 1 and stated that at the time of examination the informant complained of pain which she sustained during the course of assault made by the accused persons. Further this Court also finds that the informant was examined by the doctor after she had returned from her matrimonial house to her parents house. 24. This Court finds that the learned Amicus has not been able to demonstrate any illegality or irregularity or perversity in the impugned judgments and there is no scope for reappreciation of the evidences on record to come to a different finding. 25. So far as the judgment relied upon by the learned Amicus Curiae passed in the case of Wasim v. Statereported in7 SCC 435 is concerned it has been held in para 12 of the said judgment that conviction under Section 498A of Indian Penal Code is for subjecting the women to cruelty. It has been held in para 12 as follows: “12. Conviction under Section 498 A IPC is for subjecting a woman to cruelty. Cruelty is explained as any wilful conduct which is likely to drive a woman to commit suicide or to cause grave injury or danger to life limb or health. Harassment of a woman by unlawful demand of dowry also partakes the character of “cruelty”. It is clear from a plain reading of Section 498 A that conviction for an offence under Section 498 A IPC can be for wilful conduct which is likely to drive a woman to commit suicide OR for dowry demand. Having held that there is no evidence of dowry demand the trial court convicted the appellant under Section 498 A IPC for his wilful conduct which drove the deceased to commit suicide. The appellant was also convicted under Section 306 IPC as the trial court found him to have abetted the suicide by the In the said judgement the learned trial court had convicted the appellant under Sections 498A and 306 of Indian Penal Code and the High Court had acquitted the appellant for offence under Section 306 of Indian Penal Code and upheld the conviction under Section 498A of Indian Penal Code. In the said judgment before the Hon’ble Supreme Court on the one hand the High Court had recorded a finding that neither mental nor physical cruelty was proved and on the other hand convicted the appellant under Section 498A of Indian Penal Code by holding that the prosecution proved dowry demand by the appellant immediately after the marriage. It was observed that this finding was recorded by the High Court without detailed discussion of evidences on record especially when the trial court found that there was no material on record to show that there was any demand of dowry and the High Court did not refer to such findings of the learned trial court and record reasons for its disapproval. The said judgment does not apply to the facts and circumstances of this case as the basic ingredient for offence under Section 498A IPC read with explanationthereof are proved and concurrent findings on the point have been given in the impugned judgments passed by the learned courts below. 26. This Court finds that the learned courts below in their concurrent findings found that demand of dowry of Rs.50 000 was made by the petitioner and there was torture of the informant on account of non fulfillment of the demand from her parents side. This Court is of the considered view that merely because the petitioner has been acquitted for the offence under Section 3 4 of the Dowry Prohibition Act on technical ground of absence of sanction for prosecution the same does not create any impact or doubt on the aforesaid concurrent findings leading to conviction of the petitioner under Section 498 A of IPC. This Court is of the considered view that there is no illegality or perversity in the impugned judgements calling for any interference in revisional jurisdiction so far as the conviction of the petitioner under Section 498 A IPC is concerned. 27. This Court also finds that so far as the sentence of the petitioner is concerned the petitioner has faced the criminal case since the year 2004 and more than 16 years has elapsed and accordingly ends of justice would be served by modification of the sentence to some extent. Accordingly the sentence of the petitioner is modified by reducing the sentence of imprisonment to three months and enhancing the fine amount to Rs.50 000 to be deposited by the petitioner before the learned court below within a period of two months from the date of communication of this order. The amount so deposited is directed to be remitted to the victim girl after due identification. In case of non deposit of the fine amount within the aforesaid time frame the bail bond furnished by the petitioner will be immediately cancelled and the petitioner would serve the sentence already imposed by the learned courts below for offence under Section 498 A of IPC. 28. This criminal revision application is disposed of with aforesaid modification of sentence. 29. Pending interlocutory applications if any are closed. 30. This Court observes that vide order dated 08.03.2021 Ms. Rakhi Sharma Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to her within a period of 4 weeks upon submission of bills by her. 31. Office is directed to provide a copy of this order to Ms. Rakhi Sharma the learned Amicus Curiae and also to the Secretary Jharkhand High Court Legal Services Committee 32. Let the lower court records be sent back to the court concerned. 33. Let this order be immediately communicated to the learned court below through FAX e mail. 

Summary: The mere fact that the petitioner was acquitted for the offence under Section 3/4 of the Dowry Prohibition Act on the technical ground of lack of sanction for prosecution has no bearing or effect on the aforementioned concurrent findings leading to the petitioner’s conviction under Section 498 A of the IPC. The judgment was passed by The High of Court Jharkhand in the case of Munna Ansari @ Md. Munna Ansari vs The state of Jharkhand [Cr. Revision No. 298 of 2012] by Single Bench consisting of Hon’ble Shri Justice Anubha Rawat Choudhary. Facts of the case are that it is alleged that at the time of settlement of marriage, the accused persons had again demanded an amount of Rs.50,000/- like cash, which could not be fulfilled by the father of the informant, and she was treated with cruelty both mentally and physically. Accordingly, the complaint was filed, which was sent to the concerned police station for investigation under Section 156 (iii) C.r.P.c and the charge-sheet was submitted under Section 498A/34 of the Indian Penal Code and Section 3 / 4 of the Dowry Prohibition Act. Learned Counsel on behalf of the petitioner has submitted that most of the witnesses are the relative of the lady and accordingly, the learned court below has not scrutinized the evidence of the prosecution witnesses properly.  She has submitted that although there is an allegation of harassment, the demand of dowry has not been proved before the learned court below. She submits that as the demand of dowry was not proved, therefore, the learned appellate court had acquitted the petitioner for an alleged offence under Section 3/4 of the Dowry Prohibition Act. Learned Counsel submits that the acquittal was done by the learned appellate court on the technical ground that the sanction for prosecution was not available and therefore the conviction under Section 3/4 of the Dowry Prohibition Act, 1961 could not be sustained, although the basic ingredients for the offence were present. He submits that in the case records, the basic ingredients for an offence under Section 498A of IPC is made out and the present criminal revision application is fit to be dismissed. While partly allowing the petition, this Court finds that “the learned courts below in their concurrent findings, found that demand of dowry of Rs.50,000/- was made by the petitioner and there was torture of the informant on account of non-fulfilment of the demand from her parents’ side. This Court is of the considered view that merely because the petitioner has been acquitted for the offence under Section 3 /4 of the Dowry Prohibition Act on the technical ground of absence of sanction for prosecution, the same does not create any impact or doubt on the aforesaid concurrent findings leading to the conviction of the petitioner under Section 498 A of IPC.” This Court is of the considered view that there is no illegality or perversity in the impugned judgements calling for any interference in revisional jurisdiction, so far as the conviction of the petitioner under Section 498 of IPC is concerned.