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2001 DIGILAW 171 (HP)

LIAQ RAM v. STATE OF HP

2001-07-30

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.-The two petitioners, Liaq Ram and Ram Dayal, who are son and father, respectively, hereinafter referred to as the accused, were convicted by the learned Sub Divisional Judicial Magistrate, Kandaghat, Camp at Solan, for the offence under Section 498-A, Indian Penal Code, vide judgment dated 17.3.1998 in Criminal Case No. 74/2 of 1997/93. Upon such conviction each of them was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 500/-. In default of payment of fine, each of the two accused has been sentenced to undergo simple imprisonment for a further period of fifteen days. 2. The conviction and sentence imposed upon the two accused by the learned Magistrate was affirmed in appeal by the learned Sessions Judge, Solan, on 16.6.1998. 3. Feeling aggrieved, the two accused have come up before this Court by virtue of the present revision petition under Section 397 read with Section 401, Code of Criminal Procedure, assailing the conviction and sentence imposed upon them by the two courts below. 4. Briefly, the story of the prosecution may be thus stated. PW2 Smt. Roma Devi was married to accused Liaq Ram on 31.1.1992. Just two months after the mariage, the accused Liaq Ram started mal-treating PW2 Smt. Roma Devi and subjected her to mental and physical cruelty. He used to beat her mercilessly after consuming liquor. PW2 Smt. Roma Devi complained about the cruelties being mated out to her to her father PW3 Narayan Singh. A village Panchayat was converted at the house of the accused at the instance of PW2 Narayan Singh of which Panchayat PW6 Roop Ram, PW7 Prem Dutt and one Mahesh were members. In such Panchayat allegations were levelled by the accused against PW2 Smt. Roma Devi that she was not capable of bearing a child. PW3 Narayan Singh, upon such allegations having been levelled against PW-2 Smt. Roma Devi, got her medically examined at District Hospital, Solan. She was found fit and capable of bearing a child. Another village Panchayat was convened at the house of the accused. PW5 Gita Ram, Vice-President of Gram Panchayat, Garkhal, PW8 Maya Dutt and Shri Prem Dutt, President of Gram Panchayat, Sanawar were the members of such Panchayat. The two accused, before this Panchayat, agreed to take PW2 Smt, Roma Devi back to her matrimonial home. Another village Panchayat was convened at the house of the accused. PW5 Gita Ram, Vice-President of Gram Panchayat, Garkhal, PW8 Maya Dutt and Shri Prem Dutt, President of Gram Panchayat, Sanawar were the members of such Panchayat. The two accused, before this Panchayat, agreed to take PW2 Smt, Roma Devi back to her matrimonial home. They also assured and promised that they would behave properly in future with PW2 Smt. Roma Devi. An agreement Ex. PW2/A came to be entered between the parties. On the assurance so extended by the two accused, PW2 Smt. Roma Devi returned to her matrimonial home. There was, however, no improvement in the behaviour of the two accused. They continued maltreating her and subjected her to cruelty. They also started demanding Rs. 20,000/-, as dowry and forcing PW2 Smt. Roma Devi to get such amount from her father since PW2 Smt. Roma Devi failed to fulfill their demands, she was left at the house of her parents. A complaint was made by PW2 Smt. Roma Devi against the accused in a "KHULI ADALAT" which led to an inquiry by the police. During such inquiry, the accused again agreed and took back PW2 Smt. Roma Devi to her matrimonial home. She was even thereafter being subjected to maltreatment and cruelty. She was again left at her parental house on 25.2.1993. PW2 Smt. Roma Devi then made a complaint to Mahila Mandal, Solan, As well as Deputy Commissioner, Solan and a case came to be registered on 16.3.1993 at Police Station, Kasauli vide FIR NO. 27/93 under Section 498-A, Indian Penal Code. 5. The two accused on having been charged and put to trial for the offence under Section 498-A, Indian Penal Code, pleaded not guilty and claimed trial. 6. The prosecution in support of its case in order to bring home the offence against each of the two accused, examined eight witnesses in all. 7. The two accused in their statements under Section 313, Code of Criminal Procedure, have denied the prosecution story and have pleaded that they have been falsely implicated. They have, however, admitted the following facts: (a) a village Panchayat was held on 25.8.1992 of which PW5 Gita Ram, Vice President of Gram Panchayat, Garkhal, PW8 Maya Dutt and Prem Dutt, President of Gram Panchayat, Sanawar, were members. They have, however, admitted the following facts: (a) a village Panchayat was held on 25.8.1992 of which PW5 Gita Ram, Vice President of Gram Panchayat, Garkhal, PW8 Maya Dutt and Prem Dutt, President of Gram Panchayat, Sanawar, were members. In such Panchayat, the two accused had admitted their fault and had assured to treat PW2 Smt. Roma Devi properly in future: (b) that a written compromise Ex. PW2/A was arrived at between the parties on that Day; and (c) that a complaint was made by PW2 Smt. Roma Devi in "KHULI ADALAT" on the basis of which inquiry was held by the police and during such inquiry, the two accused after having admitted their fault had sought pardon and had taken PW2 Smt. Roma Devi with them to her matrimonial home. 8. No defence was led by the two accused. 9. The learned Magistrate upon consideration of the evidence led before him convicted and sentenced each of the two accused for the offence under Section 498-A, Indian Penal Code, as aforesaid. On Appeal, the conviction and sentence imposed upon the two accused was affirmed by the learned Sessions Judge. 10. The learned counsel for the accused has contended that on the basis of the evidence coming on record, the offence has not been proved against any of the two accused beyond a reasonable doubt and as such the conviction and sentence imposed upon the accused by the two courts below cannot be sustained and are liable to be set aside. 11. On the other hand, it was contended on behalf of the State that evidence coming on record has been rightly and properly appreciated by the two courts below while recording the conviction and sentence and that it would not be appropriate for this court in exercise of revisional jurisdiction to reappreciate the evidence and come to its own conclusion as to the quilt or otherwise of the accused. 12. The nature and scope of revisional power of this court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttumarillath Jathavedan Namboodiri [(1999) 2 SCO 452] in the said case the accused therein was convicted and sentenced by the trial court for the offence under sections 406, 468 and 477-A, Indian Penal Code. 12. The nature and scope of revisional power of this court came up for consideration before the Honble Supreme Court in State of Kerala v. Puttumarillath Jathavedan Namboodiri [(1999) 2 SCO 452] in the said case the accused therein was convicted and sentenced by the trial court for the offence under sections 406, 468 and 477-A, Indian Penal Code. The Additional Session Judge, on appeal, after re-appraisal of the entire evidence affirmed the conviction and sentence as imposed by the trial court. On revision being filed by the accused, the High Court of Kerala interfered with the conviction and sentence and came to hold that the prosecution had failed to establish the case against the accused beyond reasonable doubt.. 13. It was held by the Supreme Court:- "Having examined the impugned judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to be reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Session Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid stand-point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence...." 14. On scrutinizing the impugned judgment of the High Court from the aforesaid stand-point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence...." 14. In view of the above settled position, this court in exercise of revisional powers cannot re-appreciate the evidence for taking a view different from the one taken by the two courts below, unless there is any glaring feature which would otherwise tantamount to gross miscarriage of justice. On scrutiny of the judgments of the two courts below, this court is satisfied that the entire evidence stands properly and minutely appreciated by the two courts below, while recording a findings of guilt against the accused. 15. In the present case, apart from the evidence of the prosecution, there are vital admissions by the accused, as pointed out above, in their statements recorded under Section 313, Code of Criminal Procedure. 16. Dealing with the question of the value to be attached to the statement of an accused recorded under Section 313, Code of Criminal Procedure, the Honble Supreme Court in State of U.P. V. Lakshmi [1998 (1) Scale 590], has observed:- ".... The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality .it has a salutary purpose . It enables the Court to be apprised of what the indicated person has to say about the circumstances pitted against him by the prosecution. Answers to the question may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy." 17. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy." 17. Referring to sub-section (4) of Section 313, Code of Criminal Procedure, it was further observed that this sub-section contains necessary support to the legal proposition that answers given by the accused during such examination are intended to be considered by the court. The words "may be taken into consideration in such inquiry or trial" in the sub-section amount to a legislative guideline for the court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding. It was held: "We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence." 18. Following the above principle, the admissions made by the two accused in their statements under Section 313, Code of Criminal Procedure, can be very well considered along with the evidence of the prosecution to arrive at the conclusion that the two accused have committed the offence. 19. On the basis of the evidence coming on record, the offence against each of the two accused stands proved beyond all reasonable doubt. They stand rightly convicted by the two courts below. 20. It was pleaded on behalf of the accused that the sentence imposed upon the accused by the two courts below on the facts and in the circumstances of the case, is harsh and a lenient view may be taken by giving them the benefit of the Probation of Offenders Act, 1958. It was contended that during the course of trial, there has been a compromise between PW2 Smt. Roma Devi and her husband accused Liaq Ram on 10.4.1997 and as a result of such compromise, there has been a customary divorce between them. It was further contended that since after such divorce, PW2 Smt. Roma Devi has remarried and happily settled. Besides, the two accused have faced the ordeal of the prosecution since 1993, that is, for a period of eight years. 21. It was further contended that since after such divorce, PW2 Smt. Roma Devi has remarried and happily settled. Besides, the two accused have faced the ordeal of the prosecution since 1993, that is, for a period of eight years. 21. Taking into consideration the facts that the two accused haven faced the ordeal of prosecution for the last eight years and that PW2 Smt. Roma Devi has obtained a customary divorce from accused Liaq Ram and has since remarried and happily settled in the house of her second husband, it would not be proper to send the two accused to incarceration at this stage and to undergo the sentence imposed upon them by the two courts below. Interest of justice would be met if benefit of Probation of Offenders Act, 1958, is given to them. It is, therefore, ordered that the two accused shall be released on probation under Section 4, Probation of Offenders Act, 1958, on their furnishing personal bonds to the tune of Rs. 5,000/- each with one surety each to the like amount to the satisfaction of the learned trial Court within four weeks from today, undertaking to appear and receive the sentence when called upon to do so during the period of one year and in the meantime to keep peace and be of good behaviour. On the failure of the accused to furnish the bail bounds as above directed, the sentence imposed upon them by the two courts below shall remain in force. Resultantly, subject to the modification in the sentence imposed upon the accused by the two courts below, the present revision petition is dismissed.