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2023 DIGILAW 2294 (RAJ)

Kishan Gopal v. State of Rajasthan

2023-12-22

ASHOK KUMAR JAIN

body2023
ORDER : Mr. Ashok Kumar Jain, J. - Instant revision petition is preferred aggrieved from order dated 28.06.2004 in criminal appeal No. 05/1995 passed by learned Additional Sessions Judge, Sambhar Lake, District Jaipur whereby appeal of present petitioner against order of conviction and sentence dated 19.01.1995 in Criminal case No. 245/1991 passed by learned Additional Chief Judicial Magistrate Sambhar Lake, Jaipur was dismissed and sentence and conviction was upheld. 2. By impugned judgment dated 19.01.1995 Learned Additional Chief Judicial Magistrate after convicting present petitioner under Section 498A IPC sentenced him for simple imprisonment of one year with fine of Rs. 500/-. 3. Learned counsel for petitioner relying upon grounds of revision petition has submitted that in the instant case a false report was filed by the complainant and police without any proper investigation has filed charge-sheet against the petitioner. He also submitted that it was purely a matrimonial dispute arising out of failure of marriage and no cogent evidence was led by the prosecution to establish that after marriage with Premlata the petitioner has committed any cruelty to demand dowry. He also submitted that the evidence of PW-1 Premlata was not supported by any one and her testimony is not reliable but the Trial Court without considering the cross-examination and defence of petitioner convicted the petitioner on surmises and conjecture. At last, he submitted that the petitioner remained in custody for some time and its first offence so he is entitled to be released on probation or sentence already undergone. 4. Aforesaid contentions were opposed by learned Public Prosecutor. 5. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the record. 6. In nutshell, the facts of the case are on basis of a complaint (Ex.P-3) filed by Badri Narayan Kumar FIR No. 57/1991 was registered at P.S. Sambhar Lake, District Jaipur (Rural) and after investigation police had filed charge-sheet against present petitioner Kishan Gopal, Bhanu Lal and Kamla. During trial, 9 witnesses were examined by the prosecution. Accused were examined under Section 313 Cr.P.C. and in defence they have submitted three witnesses. After the arguments, the learned Trial Court had convicted all the three accused for offence under Section 498A IPC but released Kamla on probation but sentenced Bhanu Lal and Kishan Gopal. 7. Aggrieved from aforesaid an appeal was preferred by all the three accused before learned Additional Sessions Judge, Sambhar Lake as appeal No. 05/1995. After the arguments, the learned Trial Court had convicted all the three accused for offence under Section 498A IPC but released Kamla on probation but sentenced Bhanu Lal and Kishan Gopal. 7. Aggrieved from aforesaid an appeal was preferred by all the three accused before learned Additional Sessions Judge, Sambhar Lake as appeal No. 05/1995. On 28.06.2004 appeal was dismissed against conviction but the sentence against Bhanu Lal was set aside and he was released on probation. Both learned Trial Court and Appellate Court, found present petitioner guilty for offence under Section 498A IPC and sentenced him to undergo simple imprisonment of one year with fine of Rs. 500/-. 8. A perusal of record indicated that father of Premlata who was examined as PW-5 made a complaint before learned Trial Court which was forwarded under Section 156(3) of Cr.P.C. and on basis of which FIR was registered. PW-1 Premlata in her deposition before learned Trial Court narrated the ordeal and incidents of cruelty faced by her while she was in matrimonial house in company of present petitioner. 9. We have considered the cross-examination of PW-1 wherein she admitted that she did not disclosed the injuries sustained by her to any one. Evidence of PW-1 was further supported by PW-2 Ganga Devi (mother) and PW-5 Badri Narayan (father). PW-7 Dr. Satish Kumar examined PW-1 on 06.08.1993, who prepared injury report Ex. P-4. 10. Having considered the evidence on record and also the defence as submitted by the petitioner before the trial Court, I am of the considered view that the allegations relating to cruelty were well-founded from deposition of PW-1. The Trial Court and the Appellate Court have considered this aspect and rightly concluded that the petitioner had committed offence under Section 498A IPC. In view of aforesaid, there is no perversity or illegality from material available on record in the conclusion drawn by learned Trial Court and affirmed by the Appellate Court. 11. Now comes the question of sentence the petitioner is facing the charge since, 1991. The record indicated that the marriage was held on 16.05.1991 and the complaint was filed on 01.08.1991. Aforesaid indicate that just after the marriage there was dispute between PW-1 and present petitioner and according to PW-1 present petitioner has committed cruelty with her which is well-proved from the evidence on record. 12. The record indicated that the marriage was held on 16.05.1991 and the complaint was filed on 01.08.1991. Aforesaid indicate that just after the marriage there was dispute between PW-1 and present petitioner and according to PW-1 present petitioner has committed cruelty with her which is well-proved from the evidence on record. 12. Having considered the fact that petitioner also remained in custody for quite some time but two accused were already enlarged on probation. There is no criminal antecedents against the petitioner. Therefore, I am of the considered view that after more than 30 years when this petition has come up before us it is not appropriate to send present petitioner to serve sentence. Therefore, order of sentence is liable to be set aside and present petitioner is entitled to be released on probation. 13. As a result, instant revision petition, filed aggrieved from order dated 28.06.2004 and 19.01.1995 is partially dismissed against the conviction and conviction under Section 498A IPC is upheld. The sentence order dated 19.01.1995 and affirmed by order dated 28.06.2004 are hereby set aside and petitioner Kishan Gopal is directed to be released on submission of probation bond with a surety of Rs. 25000/- for a period of one year to the satisfaction of learned Trial Court. 14. With aforesaid, the revision petition stands disposed of. 15. Misc. application, if any, stands disposed of.