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2013 DIGILAW 731 (HP)

Pawan Kumar v. Suman Lata

2013-08-12

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, J. The petitioner having suffered conviction and sentence in both courts below, under section 498-A IPC, has assailed judgement dated 4.7.2008, passed by learned Additional Sessions Judge, Una in Criminal Appeal No. 4 of 2007, affirming judgement dated 29.1.2007 / 3.2.2007, passed in complaint No. 65-I/2000 by learned Judicial Magistrate Ist Class, Court No. 1, Amb, District Una, H.P. 2. The facts in brief are that respondent No. 1 has filed complaint against the petitioner and six others, namely, Poonam Devi, Mohan Lal, Julfi Ram, Jeeto Devi, Nisha Devi, Rajesh Kumar, under sections 406, 494, 498-A, 506 read with section 120-B IPC. Julfi Ram and Jeeto Devi are father and mother of the petitioner, whereas Nisha Devi and Rajesh Kumar are the sister and brother of petitioner. Poonam Devi, according to complainant is the second wife of petitioner. Mohan Lal has since died. 3. In the complaint, respondent No. 1 has alleged that she is the legally wedded wife of the petitioner. The petitioner has married Poonam Devi during the subsistence of marriage of petitioner with respondent No.1. The marriage between petitioner and respondent No. 1 took place on 18.1.1995, a daughter Dolma was born from the wedlock on 5.10.1997. At the time of marriage the parents of complainant gave sufficient dowry in the form of “Istridhan” to the complainant. After about one month of the marriage, the petitioner, Julfi Ram, Jeeto Devi, Nisha Devi and Rajesh Kumar snatched ornaments of the complainant. They gave beatings to the complainant on the ground that sufficient dowry was not given in the marriage. They demanded different cash amounts for different purposes, which were paid but that did not satisfy them. The complainant was subjected to physical and mental cruelty by petitioner and others. 4. The matter was not reported to lawful authorities with the hope that better sense would prevail upon the petitioner and others and in the meantime the daughter was also born. The birth of daughter increased the problems of complainant. The petitioner etc. started commenting upon the complainant to be unlucky woman having given birth to a female child. The petitioner, his parents, brother and sister used to forcibly send the complainant to her parents house time and again with the warning that they would kill her, if she will return. The birth of daughter increased the problems of complainant. The petitioner etc. started commenting upon the complainant to be unlucky woman having given birth to a female child. The petitioner, his parents, brother and sister used to forcibly send the complainant to her parents house time and again with the warning that they would kill her, if she will return. Thereafter on 29.5.1999, the petitioner sent the complainant and daughter to the parental house of the complainant with the plea that he was involved in some murder case in Delhi and he was going to surrender before the police. On 10.6.1999, the petitioner visited the parental house of the complainant and demanded Rs.50,000/- from the father of the complainant to defend the case at Delhi, which demand of petitioner could not be satisfied. This annoyed the petitioner, he went back by saying that father of the complainant would keep the complainant and daughter with him. 5. The complainant waited for long for arrival of petitioner, but ultimately of her own in December 1999, she went to the place of petitioner and found that he was living with Poonam Devi as husband and wife. It came to the notice of the complainant that some relatives of petitioner conspired in arranging second marriage of petitioner with Poonam Devi. At the time of filing the complaint, Poonam Devi was pregnant from the marriage she performed with the petitioner. The matter was reported to Mahila Police Station, Chandigarh, where petitioner gave assurance that he would divorce Poonam Devi. 6. The petitioner, his parents, brother and sister misappropriated “Istridhan” of complainant without her consent. It has been stated that petitioner, his parents, brother and sister subjected the complainant to cruelty and ruined her life. The complainant led preliminary evidence, the learned Magistrate summoned the petitioner and others after recording pre-charge evidence, charged the petitioner for offences punishable, under sections 494, 498-A, 406, 506 read with section 34 IPC. The other accused were charged for offences, punishable under sections 494, 498-A, 406, 506 and section 34 IPC. The accused pleaded not guilty. The complainant examined four witnesses in support of her complaint. The petitioner and others were examined, under section 313 Cr.P.C. On conclusion of trial, the learned Magistrate convicted petitioner alone under section 498-A IPC and acquitted other accused. The accused pleaded not guilty. The complainant examined four witnesses in support of her complaint. The petitioner and others were examined, under section 313 Cr.P.C. On conclusion of trial, the learned Magistrate convicted petitioner alone under section 498-A IPC and acquitted other accused. He was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default of payment of fine, the petitioner was ordered to undergo simple imprisonment for three months. The learned Additional Sessions Judge dismissed the appeal on 4.7.2008, hence the petitioner has come in revision. 7. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the petitioner has submitted that two courts below have not believed major part of the case of respondent No.1, the two courts below have erred in convicting and sentencing the petitioner on the ground that he is residing and cohabiting with Poonam Devi. The complainant is legally wedded wife of petitioner, cohabitation of petitioner and Poonam Devi during subsistence of marriage of complainant with petitioner would cause danger to the mental and physical health of the complainant, which amounts to cruelty as provided in explanation to section 498-A IPC. It has been submitted that two courts below have returned the findings of cruelty without any evidence. The two courts below totally misconstrued, misinterpreted the evidence. The conclusion drawn by the two courts below is based upon surmises and conjectures. The learned counsel for the respondents have supported the impugned judgement. It has been submitted that scope in revision is very limited in which evidence cannot be re-appreciated. 8. The section 498-A IPC, is to the following effect :- “498-A. Husband or relative of 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. Explanation.- For the purpose of this section, ‘cruelty’ means— (a) any willful 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 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.” 9. It is admitted case of the parties that two courts below have convicted and sentenced the petitioner only for the offence under section 498-A IPC on the ground that petitioner was already married with complainant and during the subsistence of that marriage, he performed second marriage with Poonam Devi and started living with her as husband and wife. The respondent No.1 thus has been subjected to cruelty. The petitioner and Poonam Devi have been acquitted of offence under section 494 IPC. 10. CW 1 Suman Lata has stated that she solemnized marriage on 18.1.1995 with Pawan. The accused gave beatings to her on the pretext that she had brought less dowry. In December 1999, she alongwith her uncles Kesar Singh and Chint Ram went to Mohali where Pawan had solemnized marriage with Poonam and they were living as husband and wife. Poonam was pregnant. Their marriage was not performed with her consent. She had gone to Sector 17, Chandigarh, Women Police Station, where Pawan undertook in writing to divorce Poonam in four months, but Pawan did not comply the undertaking. She went to her in-laws house, who sold her “Istridhan” at Mohali and they used the left over articles without her consent. In cross-examination, she has stated that she has education up to 10th fail. She stayed with Pawan at Chandigarh for about 4½ years. In her statement, she has nowhere stated that on account of marriage and living together of petitioner and Poonam Devi, she suffered mental or physical cruelty. She denied that petitioner has no relation with Poonam. 11. CW 2 Kesar Singh has stated that in December 1999 he, Suman and Chint Ram had gone to the house of petitioner in Mohali where petitioner and Poonam were living as husband and wife. She denied that petitioner has no relation with Poonam. 11. CW 2 Kesar Singh has stated that in December 1999 he, Suman and Chint Ram had gone to the house of petitioner in Mohali where petitioner and Poonam were living as husband and wife. In cross-examination, he has stated that Suman stayed with her husband at Chandigarh for about 5-6 years. He has not stated that on account of marriage of petitioner with Poonam and their staying together as husband and wife, Suman Lata was subjected to any cruelty. 12. CW 3 Neelam Kumari, member Block Samiti has stated that she knew Poonam and Pawan. She has issued certificate Ex. CW 3/A. Poonam and Pawan are living together as husband and wife. They have a son Sakshu. She has also not stated that on account of living together of Pawan and Poonam as husband and wife Suman was subjected to cruelty. CW 4 Joginder Singh Chawla, Senior Assistant, DAV Public School, Dasuha has stated that Saksham was admitted in their school in LKG on 8.4.2004. The name of father of Saksham in the school record is Pawan and that of mother Poonam. He has proved Ex. CW 4/A to Ex. CW 4/F. 13. The petitioner in his statement under section 313 Cr.P.C. has admitted his marriage with Suman on 18.1.1995 and birth of Dolma on 5.10.1997. He denied that in December 1999 complainant and her relatives visited his house and found that he and Poonam were living as husband and wife after solemnization of marriage. He denied that he solemnized the marriage with Poonam during the subsistence of his marriage with Suman Lata. He has stated that he has been falsely implicated. No question was put to him under section 313 Cr.P.C. that on account of his living with Poonam, complainant Suman suffered any cruelty. 14. The trial court did not believe the case of the complainant that she suffered cruelty on account of causing harassment to meet any unlawful demand of dowry. The trial court, however, has held that CW 1 Suman Lata, CW 2 Kesar Singh, CW 3 Neelam Kumari have made allegations that petitioner and Poonam are residing as husband and wife. 14. The trial court did not believe the case of the complainant that she suffered cruelty on account of causing harassment to meet any unlawful demand of dowry. The trial court, however, has held that CW 1 Suman Lata, CW 2 Kesar Singh, CW 3 Neelam Kumari have made allegations that petitioner and Poonam are residing as husband and wife. The trial court has further observed that for a legally wedded wife complainant, the willful conduct of Pawan Kumar is certainly of a nature as would cause endanger to the health both mentally or physically of the complainant, which is cruelty as provided in explanation to section 498-A IPC. This finding has been affirmed by the learned Additional Sessions Judge. 15. The two courts below have not referred any evidence that on account of conduct of petitioner and Poonam living together as husband and wife, the complainant ever thought to commit suicide or that conduct caused injury or danger to her life, limb or health (whether mental or physical). The courts below in arriving to the conclusion of cruelty have assumed something, which is not even stated by the complainant or any of her witnesses. The courts below have disbelieved the entire case of the complainant except that petitioner and Poonam are living as husband and wife during the subsistence of marriage between the petitioner and Suman Lata. 16. The findings recorded by the two courts below on cruelty are based upon conjectures. There is no iota of evidence that because of living together of petitioner and Poonam as husband and wife, the complainant ever felt disgusted or she was taunted by anybody or was thought of committing suicide or living together of petitioner and Poonam caused ill-effect on her physical and mental health. The courts below have exercised their jurisdiction wrongly, illegally in convicting and sentencing the petitioner under section 498-A IPC in absence of evidence. The impugned judgement is not sustainable. 17. In view of above, the revision is allowed. The judgement dated 29.1.2007/ 3.2.2007 passed in complaint No. 65-I/2000 by learned Judicial Magistrate Ist Class, Court No. 1, Amb, District Una and affirmed by learned Additional Sessions Judge, Una vide judgement dated 4.7.2008 in Criminal Appeal No. 4 of 2007 are set-aside. The conviction and sentence of petitioner, under section 498-A IPC is set-aside. The petitioner is acquitted of the charge. The conviction and sentence of petitioner, under section 498-A IPC is set-aside. The petitioner is acquitted of the charge. The fine amount, if any, deposited by the petitioner, be refunded to him. The bail bonds of the petitioner are discharged.