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2014 DIGILAW 125 (CHH)

Atma Ram v. State of Chhattisgarh

2014-03-21

P.SAM KOSHY

body2014
ORDER By way of the present criminal revision the applicant has challenged the judgment dated 28.01.2004 passed by Additional Sessions Judge, Balod, District Durg in Criminal Appeal No. 106/2000. 2. Facts leading to the instant case are that on 01.12.1990 a report was lodged by complainant Bharatram (PW-2) alleging that the present applicant who is the husband of her daughter Manbha Bai and his relatives are harassing, ill treating her daughter and also subjecting her to cruelty. Upon the said report, the Police registered a case against the applicant, his mother Parvat Bai and father Hariram for the offence punishable u/s 498A of IPC. After investigation, charge sheet was filed and the matter was put to trial before the A.C.J.M, Balod in Criminal Case No.1211/90. 3. After completion of trial, the trial Court vide its judgment dated 06.06.2000 reached to the conclusion that the applicant as well as his mother Parvat Bai are guilty of having committed the offence u/s 498A of IPC and upon convicting them for the said offence sentenced them to undergo RI for six months with fine of Rs.1,000, in default of payment of fine to further undergo RI for two months. However, father of the applicant Hariram was acquitted of all the charges levelled against him. 4. The said judgment dated 06.06.2000 was challenged by the applicant as well as his mother before the Additional Session Judge, Balod in Criminal Appeal No.106/2000. 5. The appellate Court also after considering the submissions put forth by the counsel for the applicant and also on perusal of the evidence that has come on record vide its judgment dated 28.01.2004 reached to the conclusion that the applicants are in fact guilty of having committed the offence u/s 498A of IPC. However, taking into consideration the age of the mother of the present applicant namely Parvat Bai who at that point of time was more than 75 years, the Court below took a lenient and sympathetic view and reduced the sentence part of Parvat Bai to till rising of the Court but imposed a fine amount of Rs. 2,000 in addition to the fine amount of Rs.1000 which was already imposed by the trial Court, with default stipulations. 2,000 in addition to the fine amount of Rs.1000 which was already imposed by the trial Court, with default stipulations. As regards the case of the present applicant, the appellate Court considering the overall facts and circumstances of the case, reduced the sentence imposed on the present applicant to RI for one month from that of six months but enhanced the fine amount to Rs.2,000 from that of Rs.1,000, with default stipulations. 6. It is this judgment dated 28.01.2004 which is under challenge in the instant criminal revision. 7. Counsel for the applicant submits that the provision of Section 498A could not have been made applicable in the case of the present applicant as the said Manbha Bai was not his actual wife. He further submits that the complainant Bharatram (PW2) and his daughter Manbha Bai (PW-1) both have accepted the fact that the present applicant was already a married person and that in the complaint the allegation is also against the said wife of the present applicant who is also said to be ill treated Manbha Bai. It was contended by the counsel for the applicant that the complaint itself has been made at a belated stage and no justification has been given for the said delay. It was also contended that the delay caused in lodging of the complaint also makes the case of the prosecution doubtful and therefore the applicant should be granted advantage of the same and he be acquitted of the charge levelled against him. 8. Per contra, counsel for the State submits that a bare perusal of the nature of the complaint itself shows the gravity of the offence and if we see the testimony of the prosecution witnesses adduced before the Court below, it would also show that the case of the prosecution has been fully established and proved against the applicant. It was contended by the State counsel that if we see the orders passed by the two Courts below, it would be evident that both the Courts below have given a categorical finding that the conviction of the applicant has been proved beyond all reasonable doubt. It was contended by the State counsel that if we see the orders passed by the two Courts below, it would be evident that both the Courts below have given a categorical finding that the conviction of the applicant has been proved beyond all reasonable doubt. It was also contended that both the Courts below have taken lenient and sympathetic view against the applicant in as much as initially convicting the applicant for the offence u/s 498 A of IPC the trial Court sentenced him for a period of six months RI which itself is on the lower side and the appellate Court also exercising its revisional power reduced the sentence imposed upon the applicant to one month RI from that of six months. According to the State counsel, the Court below taking a lenient view has already imposed a much lesser punishment upon the applicant and therefore no further leniency should be shown to the applicant and the instant revision should be rejected being devoid of any merits. 9. Heard counsel for the parties and perused the evidence available on record. 10. On perusal of the evidences that have come on record it would show that the daughter of the complainant Bharatram namely Manbha Bai (PW-1) initially had an illicit relationship with the present applicant and that the said relationship continued for about one year. Subsequently, the said relationship drew the two of them for maintaining physical relationship and in the course of the said relationship which Manbha Bai (PW-1) was having with the present applicant, she got conceived and also gave birth to a child. After she had given birth to a child, a meeting was convened in the village where in the presence of prominent members of the village, the applicant had accepted the fact of having relationship with Manbha Bai (PW-1) and that the child born to Manbha Bai was of the applicant and accordingly in the said meeting in the village it was decided that the applicant shall keep the said PW-1 as his wife. From the evidence of Manbha Bai PW-1 which has come before the Court below it is established that after the applicant had taken the said PW-1 to his house, the family members of the applicant started ill treating her and subjected her to cruelty. From the evidence of Manbha Bai PW-1 which has come before the Court below it is established that after the applicant had taken the said PW-1 to his house, the family members of the applicant started ill treating her and subjected her to cruelty. She has categorically stated that the family members of the applicant i.e. the applicant, his first wife, mother and father, all have been physically and mentally torturing her. It was also the statement of PW-1 before the Court below that the harassment on the part of the applicant and his relatives was to the extent of instigating her to end her life and they have also been intentionally ill treating her with a specific intention of forcing her to take drastic step of ending her life by some means. The said statement of PW-1 has also been reiterated by her father Bharat Ram (PW-2). Dharam Singh (PW-3) who is the Sarpanch of the said village in his statement has stated that in the village meeting, the present applicant had accepted the physical relationship he had with Manbha Bai PW-1 and that the child born to PW-1 through him and in presence of the villagers, the applicant took PW-1 to his house. To this extent it is established that the child born to PW-1 is in fact through the relationship which the applicant was having with PW-1. 11. However, in the entire evidence of the prosecution before the trial Court, no evidence has been adduced or has been testified by the prosecution witnesses establishing the fact that there was a valid marriage between the applicant and PW-1. From the statement of Manbha Bai PW-1 and her father Bharatram PW-2 it is admittedly clear that the present applicant was already married to one Jogeshwari and that he had children also. From the testimony of PW-1 and PW-2 it is also evident that when PW-1 had gone to the house for the present applicant, the said wife of the applicant was also staying with them. Thus, when the wife of the present applicant was already at the house of the applicant, by no means, PW-1 could have got a status of wife. In the absence of her valid marriage, the offence u/s 498-A IPC could not come into operation as has been held by the High Court of Odisha in the case of State Vs. Thus, when the wife of the present applicant was already at the house of the applicant, by no means, PW-1 could have got a status of wife. In the absence of her valid marriage, the offence u/s 498-A IPC could not come into operation as has been held by the High Court of Odisha in the case of State Vs. Prasanna Kumar Senapati reported in 2007 CRI.L.J. 1344. 12. From the evidences that have come before the trial Court and the documents produced before this Court, it is evidently clear that the prosecution has failed to prove husband and wife relationship between applicant and Manbha Bai PW-1 by way of proving a valid marriage between the two. Thus, in the absence of a valid marriage between applicant and PW-1, the ingredients so required for making out a case for the offence u/s 498A cannot be said to have been established. 13. If we read the provision of Section 498A, the section starts with the terminology 'the husband or the relatives of the husband'. For the purpose of declaring a person to be a husband, there should be a valid marriage between the two persons. In the absence of there being a valid marriage, the lady can never be called as a wife, on the contrary, she could be called by various other names like kept, concubine etc. and therefore the offence u/s 498A could not have been charged at the instance of a lady who could be a kept or concubine etc. but not a wife. 14. In view of the facts and circumstances of the case and also the fact that the prosecution has not been able to establish the valid marriage between the two i.e. applicant and PW-1 nor have PW-1 and PW-2 in their testimony have stated that there was a valid marriage between the two at any point of time, the case of the prosecution is not made out against the applicant and therefore benefit of the same should be given to the applicant. 15. For the foregoing reasons, the instant criminal revision is allowed. The impugned judgment of conviction and sentence passed by the Court below is hereby set aside and the applicant is acquitted of the offence u/s 498 A of IPC. 15. For the foregoing reasons, the instant criminal revision is allowed. The impugned judgment of conviction and sentence passed by the Court below is hereby set aside and the applicant is acquitted of the offence u/s 498 A of IPC. The applicant is on bail, his bail bonds shall continue for a period of six months from today in view of Section 437 of Cr.P.C.