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2008 DIGILAW 566 (GAU)

Deben Biswas v. State of Assam

2008-08-05

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. This revision has been filed against the judgment and order dated 16.3.2006 passed by the learned Sessions Judge, Darrang in Criminal Appeal No. 17(D-3)/2005 upholding the impugned judgment and order of conviction of the revision petitioner by the trial court passed in CR Case No. 299/2000 under the charge of Section 498A, IPC. 2. The main challenge that has been made by the revision petitioner in this present revision is that the learned trial court failed to appreciate the evidence on record in its proper perspective and also the law laid down by the Supreme Court. In the revision petition, it was contended that the sole respondent was not the legally married wife of the revision petitioner and, therefore, the conviction awarded by the learned trial court and upheld by the learned appellate court under the charge of Section 498A, IPC is not legally sustainable. 3. In order to appreciate the claim of the revision petitioner, it would be appropriate for this Court to survey the facts of the respondent herein in a brief manner. The respondent herein, as complainant, flied a complaint case alleging, inter alia, that she was in love with the revision petitioner and consequently, she became pregnant for which a village 'Mel' was convened on 19.1.2000 and as per the decision of the said 'Mel', the revision petitioner accepted the respondent/complainant as his wife and took her to home and stayed as husband and wife and after 1 1/2 months of the marriage, a male child was borne to her. But, after the birth of the child, the revision petitioner and his family members started ill-treatment towards the complainant (respondent herein) both physical and mental and ultimately drove her out from her matrimonial home on 22.8.2000. The respondent, complainant, finding no other alternative, again, convened a 'Mel' on 31.8.2000 and in the said 'Mel', the revision petitioner refused to take her back and thereafter, she, finding no other alternative, lodged a complaint before the learned Chief Judicial Magistrate, Darrang and on being made over the case, the learned Magistrate, after due trial, convicted the revision petitioner for the charge under Section 498A, IPC. 4. The revision petitioner, feeling aggrieved thereby, filed an appeal before the learned Sessions Judge challenging the legality and correctness of the judgment and order passed by the learned trial court. 4. The revision petitioner, feeling aggrieved thereby, filed an appeal before the learned Sessions Judge challenging the legality and correctness of the judgment and order passed by the learned trial court. The learned appellate court, after careful scrutiny of the entire materials and evidence available on record, upheld the judgment under appeal. 5. Chapter XXX of the Code of Criminal Procedure, 1973 deals with the subject of Reference and Revision. Section 397 empowers the High Court or any Sessions Judge to examine the records of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court. The revisional court, while exercising such jurisdiction, is forbidden re-appreciation of evidence unless perversity is apparent on the face of the record. A revisional court cannot sit as an appellate court, which is endowed with wide power of appreciation of facts, evidence on record and the law. Thus, a revisional court is required to confine itself into its arena and it cannot traverse beyond its jurisdiction unless the findings of the court inferior are found to be perverse. 6. This Court, while dealing with the petitions under Section 397/401, Cr.PC in the case of Rafit Ali v. State of Assam and Ors. 2006 (1) GLT 274, Kimgangte v. State of Manipur 2006 (3) GLT 356 and Sazid Hazarika v. Alamara Begum 2005 (Supp.) GLT 491, examined the scope and jurisdiction of a revisional court. In the cases (supra), this Court held that the scope of re-appreciation of evidence "on record is very limited and it cannot, while exercising such jurisdiction, traverse beyond the scope limited under Section 397, Cr.PC. A revisional court cannot sit as an appellate court and more so when two concurrent findings are there, the revisional court would be slow in the re-appreciation of the evidence on record and disturbed the findings unless some material irregularities are apparent on the face of the record. 7. In this present case, it is found that the learned trial court on the facts situation and evidence on record projected recorded the conviction of the revision petitioner under Section 498A, IPC. 7. In this present case, it is found that the learned trial court on the facts situation and evidence on record projected recorded the conviction of the revision petitioner under Section 498A, IPC. The said judgment of conviction was challenged before the Court of Sessions and the Court of Sessions also upheld the judgment recorded by the learned trial court. So, there appear concurrent findings in respect of the proof of charge under Section 498A, IPC by the prosecution. The learned trial court, as it appears from the record, considered all the facts and the evidence on record and this Court does not find any plausible ground to discard the findings of the learned trial court as well as appellate court. 8. Now, we are to see, on the facts situation and the evidence available on record, whether the learned appellate court rightly passed the judgment, which is under challenge, in this revision petition. The sole contention that has been raised in this revision petition is that the complainant/sole respondent being not the legally married wife, conviction awarded under Section 498A, IPC will not be sustainable. The learned Sessions Judge, however, refused to accept such submission on the ground that the case law referred is applicable only in respect of a proceeding under Section 125, Cr.PC and not under Section 498A, IPC. 9. Section 498A, IPC speaks of cruelty by husband or relatives of husband. It has been specifically stated that 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. In the Explanation of the section, the cruelty has been defined as under: (a) any willful conduct which is of such 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 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. 10. 10. From the evidence available on record, it appears that the sole respondent was in love with the revision petitioner for a considerable time and because of their sexual relation, the complainant became pregnant and thereafter, a village 'Mel' was convened and as per decision of such village 'Mel', the revision petitioner accepted the complainant as his wife and started living together as husband and wife until her departure. It is also found in the judgment that the respondent after 1½ months of her stay with the revision petitioner gave birth a male child and thereafter, she was subjected to cruelty as defined under Explanation to Section 498A, IPC by the revision petitioner as well as his other family members and ultimately, she had to leave her matrimonial home and had taken shelter in her father's house. Apparently, it is found that her marriage was not solemnized as per rites and customs; rather as per the decision of the village 'Mel' she had been accepted as his wife. The finding of the learned Sessions Judge that though the marriage was not solemnized as per rites and customs, the fact of stayal of the sole respondent with the revision petitioner for a considerable time and giving the status to her as his wife embraces the provisions of Section 498A, IPC as against the revision petitioner. This Court does not find any infirmity in the findings of the learned Sessions Judge. The revision petitioner accepted the respondent as his wife and stayed together. People of that locality recognized respondent as the wife of the revision petitioner. Therefore, the findings of the appellate court cannot be held to be erroneous and illegal Further, both the courts below, on the basis of the facts and the evidence on record, recorded conviction of the revision petitioner. A revisional court would be slow in interfering such concurrent findings. 11. This revision petition is, accordingly, dismissed. The revision petitioner shall surrender before the learned Sessions Judge, Darrang to receive his sentence within 20 (twenty) days from the date of receipt of the copy of the judgment by the learned Sessions Judge, Darrang. 12. Send back the LCRs immediately. Petition dismissed.