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Madhya Pradesh High Court · body

2016 DIGILAW 659 (MP)

Gopal Das v. State Of M. P.

2016-08-04

RAJENDRA MAHAJAN

body2016
ORDER : This revision is directed against the judgment dated 25-6-2009 of the learned Second Additional Sessions Judge Mandla, (Shri P. K. Tiwari) passed in Criminal Appeal No. 52/2008 by which the learned Judge has affirmed the judgment of conviction and order of sentence dated 19-2-2008 of the learned Judicial Magistrate First Class, Mandla (Shri Sanjay Singh) passed in Criminal Case No. 816/04 by which the applicant has been convicted under section 498-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year with a fine of Rs. 500/-, in default of which to further undergo rigorous imprisonment for one month. 2. Briefly stated, the prosecution case is that complainant Sita Bai (PW-1) made an oral report at Police Station Mandla on 18-6-2004 alleging that her parents are residents of Mandla town. Some day in the year 2000, they married her off with applicant Gopal Das who is a resident of village Jhurgi. Ramoli and Somawati are her father-in-law and mother-in-law respectively and Chandali is her Nanad (sister-in-law). After her marriage, she resided in the joint family of the applicant with the aforesaid persons in village Jhurgi for a year. During that period, she was often subjected to cruelties, harassment and beating by them coercing her to bring Rs. 10,000/- in cash in dowry from her parents. As a result, she had to go back to live with her parents and there she gave birth to a daughter. She resided with her parents for about two years. Thereafter, the applicant took her back giving assurances that he and his family members would keep her with dignity and respect. She stayed with them for a period of three months. During that period, they used to torture, harass and beat her, saying that she had not brought Rs. 10,000/- in cash in dowry. Some fifteen days prior to making of this report, they committed marpeet with her with kicks and fists and drove her out of the marital home, saying that they will keep her only when she has brought Rs. 10,000/- with her in dowry. Upon the oral report of the complainant, Sub-Inspector R. S. Mandve (PW-9) recorded FIR Ex.P-1 and registered a case against the applicant, his parents and his sister Chandali under sections 498-A and 34, Indian Penal Code. 10,000/- with her in dowry. Upon the oral report of the complainant, Sub-Inspector R. S. Mandve (PW-9) recorded FIR Ex.P-1 and registered a case against the applicant, his parents and his sister Chandali under sections 498-A and 34, Indian Penal Code. Since the place of occurrence of the said offence was village Jhugri which falls under the territorial jurisdiction of Police Station Mohgoan of district Mandla, he sent the FIR to the said police station for taking further action as per law. On 19-4-2006 at Police Station Mohgoan, Sub-Inspector D. P. Lohiya (PW-12) recorded the formal FIR Ex.P-13 on the basis of FIR Ex.P-1 and registered the FIR at Crime No. 92/2004 under sections 498-A read with 34, Indian Penal Code. ASI Virendra Singh (PW-11) investigated the case and filed a charge-sheet against the applicant, his parents and sister Chandali for their prosecution under section 498-A, Indian Penal Code. 3. The learned Judicial Magistrate First Class framed charges against the applicant, his parents and sister Chandali under section 498-A alternatively under sections 498-A read with 34, Indian Penal Code. They abjured their guilt and prayed for trial. They denied all the evidence and the circumstances appearing against them in their examination under section 313 of the Criminal Procedure Code. Their defence was of false implication. In their defence, they examined one Pawan Das (DW-1). 4. The learned JMFC having analyzed the evidence on record convicted the applicant, his father Ramoli, mother Somwati Bai and sister Chandali for the offence punishable under section 498-A, Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for one year with a fine of Rs. 500/-, in default of which to further undergo one month rigorous imprisonment. 5. Feeling aggrieved by the aforesaid judgment, they filed the appeal which was decided by the impugned judgment. The learned Appellate Judge having re-appreciated the evidence on record maintained the order of conviction against the applicant, his parents and sister Chandali. He has given the benefit of provisions of section 360, Criminal Procedure Code to the applicant’s parents and his sister Chandali but denied the same to the applicant and affirmed his sentence as awarded by the learned JMFC. Feeling aggrieved by and dissatisfied with the impugned judgment, the applicant approached this Court by filing this criminal revision under sections 397 and 401, Criminal Procedure Code. Feeling aggrieved by and dissatisfied with the impugned judgment, the applicant approached this Court by filing this criminal revision under sections 397 and 401, Criminal Procedure Code. It may be noted that the applicant’s parents and sister Chandali have not filed revision against their conviction and release on probation of good conduct for a period of two years by the Appellate Court. 6. The learned counsel for the applicant submitted that the learned JMFC and the learned Appellate Judge have convicted the applicant relying upon the evidence of complainant, her mother Somti Bai (PW-2), her father Samaru (PW-3), her mausi Sumatiya Bai (PW-5) and her younger sister Laxmi Bai (PW-8), who are interested witnesses. Hence, the learned Judges have erred in holding the applicant guilty for committing offence under section 498-A, Indian Penal Code. Having taken this Court through the depositions of the aforesaid witnesses, he submitted that they have deposed in one voice that the applicant, his parents and sister Chandali are equally responsible for committing cruelties upon the complainant. Therefore, the learned Appellate Judge has discriminated against the applicant by not extending the benefit of section 360, Criminal Procedure Code to him. He submitted that complainant’s father Samaru (PW-3) has admitted in his cross-examination that he is Palledar (a person who does a job of loading and unloading goods) by occupation, that he earns Rs. 2000/- per month and that his wife is a manual labourer. He submitted that defence witness Pawan Das (DW-1) has stated in his evidence that the complainant is the fourth wife of the applicant, that his first two wives had passed away and that his third wife deserted him. Under the aforesaid circumstances and evidence, he submitted that it is highly improbable that the applicant and his parents and his sister Chandali would commit cruelties upon the complainant demanding dowry of Rs. 10,000/- in cash. He submitted that the complainant has urban social background, whereas the applicant has a rural social background and that the age difference between them is more than ten years. For these reasons, the complainant did not want to lead her marital life with the applicant living in village Jhurgi. 10,000/- in cash. He submitted that the complainant has urban social background, whereas the applicant has a rural social background and that the age difference between them is more than ten years. For these reasons, the complainant did not want to lead her marital life with the applicant living in village Jhurgi. Therefore, she deserted the applicant on her own and thereafter lodged the false report of dowry harassment against him, his parents and his sister Chandali with an ulterior motive to get maintenance allowance from him under section 125, Criminal Procedure Code. He submitted that the complainant in her cross-examination has admitted to have filed an application under section 125, Criminal Procedure Code. He submitted that the applicant remained in judicial custody for a period between 21-6-2004 and 25-6-2004 and thereafter he suffered jail sentence for a period between 25-6-2009 and 6-7-2009, the date when this Court has suspended his jail sentence till the disposal of this revision. As such, the applicant had remained in prison for a total period of 16 days. He submitted that the applicant has so far suffered mental agonies of the trial of the case for about 12 years. He submitted that the complainant and the applicant had already given customary divorce to each other as per the customs prevailing in their caste. He submitted that the applicant had already deposited the fine amount as imposed by the trial Court. Under the circumstances, he submitted that the period of imprisonment be reduced to the period already undergone by the applicant in case this Court upholds the order of conviction and sentence. 7. In reply, the learned Panel Lawyer submitted that the dowry related offences are often committed upon the wife within four walls of her marital home. In general, neighbours do not come to the Court to give evidence against the husband and his family members because of the fear that their relations will be spoiled with them forever and that they would bear enmity with them. That is why in this case the applicant’s neighbours namely Phagu Das (PW-4) and Angad Das (PW-6) have not given evidence in support of the prosecution case and that the prosecution has to declare them hostile. That is why in this case the applicant’s neighbours namely Phagu Das (PW-4) and Angad Das (PW-6) have not given evidence in support of the prosecution case and that the prosecution has to declare them hostile. He submitted that Mishri Das (PW-7) has given evidence in favour of the prosecution but the Courts below have disbelieved his evidence on the ground that he bears enmity with the applicant and his family members. He submitted that it is not a proposition of law that the evidence of relative witness(s) is less than truthful. Having taken this Court through the depositions of complainant Sita Bai (PW-1), her mother Somti Bai (PW-2), her father Samaru (PW-3), her mausi Sumatiya (PW-5) and sister Laxmi Bai (PW-8), he submitted that there is consistency in their evidence and that the defence has failed to elicit any evidence in its favour to cast serious doubt on the veracity of their evidence. Thus, the Courts below have not erred in relying upon their evidence. He submitted that the learned Appellate Judge has given cogent and convincing reasons for extending the benefit of probation under section 360, Criminal Procedure Code to the applicant’s parents and his sister Chandali. But he has found that the same parameters are not applicable in the case of the applicant. Hence, the learned Appellate Judge has no discriminatory stance against the applicant. He lastly submitted that proper sentence is awarded to the applicant. Therefore, there is no need on the part of this Court to interfere with the sentence. Upon these submissions, he prayed for dismissal of the revision. 8. I have considered the rival submissions made by the learned counsel for the parties and perused the entire record and the judgments of both the Courts below. 9. It is settled in law that the interested witnesses and relative witnesses are a class apart. The general perception about an interested witness is that his sole interest lies in conviction of the culprit(s) because of his personal prejudices and grudges for which he will not hesitate in twisting the facts or telling lies in his evidence. Quite the contrary, the general perception about a relative witness is that he does not shield by and large real culprit(s) and that he does not implicate an innocent person. Quite the contrary, the general perception about a relative witness is that he does not shield by and large real culprit(s) and that he does not implicate an innocent person. Hence, the contention of the learned counsel for the applicant is not acceptable that the prosecution witnesses namely Somati Bai, Samaru, Sumatiya Bai and Laxmi Bai are interested witnesses. On the contrary, they are relative witnesses because of their close relationship with the complainant. Ordinarily, matrimonial offences are committed upon a married woman within four walls of her marital home and the evidence of neighbours of her husband is not forthcoming because they are afraid of spoiling of neighbourly relations. Moreover, such a woman seldom takes courage in her both hands to narrate cruelties being meted out to her at the hands of her husband and his family members to the neighbours. She will tell a tale of her woes regarding dowry harassment and torture to her parents and close relatives whenever she has occasion to meet them. Hence, in the dowry related offences, in general, the evidence of victim-woman, her parents and relatives are available. Consequently, their evidence cannot be brushed aside by saying that they are relative witnesses. In such cases, the only requirement on the part of the Court is to scrutinize their evidence with great care and circumspection. In this connection, the reference may be made to the decisions rendered in Jankibai and others vs. State of M.P. 2006 (2) J.L.J. 86 , S. Mahaboob Basha vs. State of Karnataka, (2014) 10 SCC 244 and Rajendra Kumar vs. State of Haryana, (2015) 4 SCC 215 . 10. Pursuant to the propositions of law as stated in the preceding para, I will examine the evidence of the complainant and the prosecution witnesses namely, Somati Bai, Samaru, Sumatiya Bai and Laxmi Bai. Be it noted that upon their evidence, the learned JMFC as well as the learned Appellate Judge has recorded the conviction against the applicant under section 498-A, Indian Penal Code. From perusal of their evidence, I find consistency in their evidence and no material embellishments, exaggerations and twisting of the facts with regard to the demand of dowry made by the applicant, his parents and sister Chandali. The defence could not elicit even a scrap of evidence in its favour in their cross-examinations, therefore, their testimonies are unimpeachable. From perusal of their evidence, I find consistency in their evidence and no material embellishments, exaggerations and twisting of the facts with regard to the demand of dowry made by the applicant, his parents and sister Chandali. The defence could not elicit even a scrap of evidence in its favour in their cross-examinations, therefore, their testimonies are unimpeachable. I also find that the defence has not cross-examined the aforesaid witnesses on the point that there was steep maladjustment between the complainant and the applicant because of their family backgrounds. Hence, the arguments raised on the said point by the learned counsel for the applicant before this Court is absolutely after thought. Ultimately, I come to the conclusion that the learned JMFC and the learned Appellate Judge have not committed any error on facts or in law in convicting the applicant for the offence punishable under section 498-A, Indian Penal Code. 11. Now, I will consider whether the learned Appellate Judge is justified in not extending the benefit of section 360, Criminal Procedure Code to the applicant ? From perusal of Paras 27 and 28 of the impugned judgment, I find that the learned Appellate Judge has given reasons as to why the applicant’s parents and sister Chandali deserve to be granted the benefit of section 360, Criminal Procedure Code. It is mentioned in the said paras that the applicant’s parents are aged between 65 to 70 years and that they are so infirm that they are even unable to stand without the help of any other person. It is further mentioned that the applicant’s sister Chandali is a middle aged woman of about 45 years and that she is the mother of so many young children. The learned Appellate Judge has also observed therein that their role in subjecting the complainant to the cruelties is secondary one. On the other hand, the applicant is a young man and that he is mainly responsible for inflicting cruelties upon the complainant and that he never prevented his parents and sister Chandali from committing cruelties upon her. Having gone through the statements of the prosecution witnesses namely the complainant, Somati Bai, Samaru, Sumatiya Bai and Laxmi Bai, I find the above observation of the learned Appellate Judge is based upon proper appreciation of their evidence. Having gone through the statements of the prosecution witnesses namely the complainant, Somati Bai, Samaru, Sumatiya Bai and Laxmi Bai, I find the above observation of the learned Appellate Judge is based upon proper appreciation of their evidence. In such premises, I am of the view that the learned Appellate Judge has given reasonable and convincing reasons for providing the benefit of section 360, Criminal Procedure Code to the applicant’s parents and his sister Chandali and not extending the same to the applicant. Consequently, I do not find any merit in the contention as advanced by the learned counsel for the applicant that the learned Appellate Judge has discriminatory attitude towards the applicant. 12. Now, I will deal with the sentence part of the impugned judgment. As per the record, the alleged offence is registered against the applicant, his parents and his sister Chandali in the year 2004. Taking into consideration the said fact, it may be said that the applicant has been undergoing mental agonies of the trial of the case for over 12 years. It may also be said with certitude that during the said period, the applicant’s mind was always haunted by the fear of being convicted. At times, the mental agonies of an accused far outweighs the actual sufferings of undergoing the imprisonment in case the jail term is fixed and short. It is submitted by the learned counsel for the applicant that the applicant and the complainant had divorced each other as per customs prevailing in their society and that they are leading their independent lives. In the light of the aforestated facts, I am of the view that no useful purpose will be served if the applicant is sent to the prison for undergoing the remaining part of jail sentence. It would be proper in the fitness of the things of the case that the jail sentence of the applicant be reduced to the period already he had undergone and the sentence of fine will be enhanced and further the fine amount may be given to the complainant by way of compensation against the cruelties and torture she had suffered at the hands of the applicant, his parents and his sister Chandali. As per the record, the complainant remained in the company of the applicant and the aforesaid for a total period of one year and near about three months. As per the record, the complainant remained in the company of the applicant and the aforesaid for a total period of one year and near about three months. It has come in the cross-examinations of the complainant and Sumatiya Bai (PW-5) that the applicant possesses near about 8 to 10 acres of agricultural land. Taking into consideration the aforesaid holding of the land, it may be said that the applicant is financially capable of paying the enhanced fine amount. 13. In the light of the discussion supra, this revision is partly allowed. The conviction of the applicant as recorded by the learned JMFC and affirmed by the learned Appellate Judge under section 498-A is maintained but the sentence is modified to the extent that the jail sentence of the applicant shall stand reduced to the period he had already suffered and that the sentence of fine is enhanced from Rs. 500/- (Rupees Five Hundred Only) to Rs. 20,000/- (Rupees Twenty Thousand Only). The applicant is directed to deposit the remaining fine amount of Rs. 19,500/- (Rupees Nineteen Thousand and Five Hundred Only) in the trial Court within three months from the date of receipt of the records of the case with a copy of this order, failing which the trial Court shall send the applicant for undergoing the remaining part of jail sentence out of the total jail sentence of one year. His bail-bonds stand cancelled. If the aforesaid amount is deposited by the applicant, then it shall be solemn duty of the concerned JMFC to pass the compensation on to the complainant in a reasonable time. 14. Accordingly, this revision in aforesaid terms is finally disposed of.