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2023 DIGILAW 297 (UTT)

Rajpal v. State of Uttarakhand

2023-05-04

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. The instant revision is preferred against the following: (A) Judgment and order dated 04.08.2006, passed in Criminal Case No. 836 of 2004, State vs. Rajpal and Others, by the court of Civil Judge (Junior Division)/Judicial Magistrate, Rishikesh, District-Dehradun. By it, the revisionists have been convicted under Section 498-A IPC and Section ¾ of the Dowry Prohibition Act, 1961 (“the Act”). They have been sentenced as hereunder: (i) Revisionist Aman Panchal has been sentenced under Section 498-A IPC with two years’ imprisonment and fine of Rs. 2000. He has further been sentenced under Section ¾ of the Act with one year imprisonment and a fine of Rs. 1000. (ii) Revisionist Rajpal has been sentenced under Section 498-A IPC with one year imprisonment and fine of Rs. 1000. He has further been sentenced under Section ¾ of the Act with 6 months’ imprisonment and a fine of Rs. 500. (iii) Revisionist Smt. Nirmal has been sentenced under Section 498-A IPC with six months’ imprisonment and fine of Rs. 500. She has further been sentenced under Section ¾ of the Act with six months’ imprisonment and a fine of Rs. 500. (B) Judgement and order dated 27.01.2009, passed in Criminal Appeal No. 38 of 2006, Rajpal and Others vs. State of Uttarakhand, by the court of Additional District and Sessions Judge/IV F.T.C. Dehradun (“the appeal”). By it, the appeal has been dismissed and the conviction and sentence of the revisionists has been upheld. 2. Heard learned Amicus Curiae and learned State Counsel and perused the record. 3. Instant revision was once dismissed by this Court on 12.04.2019, but the order dated 12.04.2019 was challenged by the revisionists before the Hon’ble Supreme Court in Criminal Appeal No. 512 of 2020, Rajpal and Others vs. State of Uttarakhand (“the Criminal Appeal”). The Criminal Appeal was allowed by the Hon’ble Supreme Court on 07.08.2020 and the matter was remanded to this Court for fresh hearing. The order dated 12.04.2019, passed by this Court was set aside. 4. On 20.06.2022, the Court requested Mr. S.R.S. Gill, Advocate, to assist this Court in the matter, as the revisionists went unrepresented. 5. Once argument was heard in this revision and judgment reserved. The order dated 12.04.2019, passed by this Court was set aside. 4. On 20.06.2022, the Court requested Mr. S.R.S. Gill, Advocate, to assist this Court in the matter, as the revisionists went unrepresented. 5. Once argument was heard in this revision and judgment reserved. But, thereafter, the Court noted that in view of the earlier proceedings when the revision was decided in the absence of the revisionists, it would be expedient in the interest of justice that the presence of the revisionists be secured. Thereafter, processes were issued against the revisionists and they were arrested and remanded to judicial custody on 26.03.2023. 6. Facts necessary to appreciate the controversy, briefly stated, are as follows: the informant and the revisionist Aman Panchal were married on 17.02.2002. But, according to the FIR, after marriage, the informant was harassed, tortured, beaten up on multiple occasions for and in connection with the demand of dowry. According to the FIR, in fact, after great harassment, the informant, along with her husband, the revisionist Aman Panchal, were forced to stay separate in a rented accommodation in Delhi. But, on 03.05.2004, the revisionist Aman Panchal left the informant all alone in her house and did not return. The informant lodged a missing report at a Police Station and, subsequently, on 15.05.2004, she returned to her father’s house after informing the revisionist Rajpal (he is father-in-law of the informant; the revisionist Smt. Nirmal is mother-in-law of the informant). The FIR further states that on 06.06.2004, the revisionists and other family members came to the house of the father of the informant and abused, assaulted and attacked them. It is, thereafter, the FIR in the instant case was lodged on 16.06.2004. Based on it, Case Crime No. 202 of 2004, under Sections 498A, 452, 323, 504 and 506 IPC and Section ¾ of the Act was lodged and the investigation was carried out. During investigation, the Investigating Officer prepared the site plan and after completing investigation, submitted a charge-sheet against the revisionist and 3 others. 7. In order to prove its case, the prosecution examined six witnesses, namely, PW1 Smt. Rashmi, PW2 Smt. Santosh, PW3 Ramlal, PW4 Gokul Chand Madan, PW5, Rampal Singh, PW6 SI A.K. Pandey. 8. During investigation, the Investigating Officer prepared the site plan and after completing investigation, submitted a charge-sheet against the revisionist and 3 others. 7. In order to prove its case, the prosecution examined six witnesses, namely, PW1 Smt. Rashmi, PW2 Smt. Santosh, PW3 Ramlal, PW4 Gokul Chand Madan, PW5, Rampal Singh, PW6 SI A.K. Pandey. 8. After the prosecution evidence, the revisionists were examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”), and by the impugned judgment and order dated 04.08.2006, they were convicted and sentenced, as stated hereinbefore. Aggrieved by it, the appeal was preferred by the revisionists, which was also dismissed. Hence the revision. 9. Learned Amicus Curiae would submit that, in fact, the statement under Section 313 of the Code, as recorded in the instant matter, is defective. But, he would submit that since the matter is pending for quite a long therefore further remand of the matter, for recording statement of the revisionists under Section 313 of the Code, would take much time, as also it may not affect much of the merits. He restricts his submission to the quantum of sentence only. According to the learned Amicus Curiae, the revisionist Rajpal is of 73 years of age and the revisionist Smt. Nirmal is of 69 years of age. The factual matrix, according to learned Amicus Curiae, may also be helpful in determining an adequate sentence in the matter because even according to the prosecution, after marriage of the revisionist Aman Panchal with the informant Smt. Rashmi, the informant and the revisionist Aman Panchal stayed separate from their family in a rented accommodation in Delhi. He would submit that the circumstances would be well visualised that the revisionist Aman Panchal had to leave the company of his wife. A missing report was lodged against him. It is submitted that much agony has already been undergone by the revisionists. Now, the interest of justice does not warrant that they may be kept behind the bars anymore. Therefore, the sentence may be reduced to the period, which has already been undergone, at least in so far as the revisionists Rajpal and Smt. Nirmal is concerned. Insofar as the revisionist Aman Panchal is concerned, he was 36 years old when the statements under Section 313 of the Code were recorded in the year 2006. Therefore, the sentence may be reduced to the period, which has already been undergone, at least in so far as the revisionists Rajpal and Smt. Nirmal is concerned. Insofar as the revisionist Aman Panchal is concerned, he was 36 years old when the statements under Section 313 of the Code were recorded in the year 2006. In his case also, it is argued that the sentence is much harsh. It deserves to be reduced significantly. 10. On the other hand, learned State Counsel would submit that insofar as the revisionists Rajpal and Smt. Nirmal is concerned, their sentence may be reduced, in view of their old age. But, he would submit that insofar as the revisionist Aman Panchal is concerned, he does not require any leniency. The offence against him has been proved. It is a case of dowry demand and harassment. It is an offence against the society. 11. In order to arrive at a just sentence, it would be apt to see as to what the witnesses have stated. 12. PW1, in the instant case, is Smt. Rashmi, the informant. She has stated that she and the revisionist Aman Panchal, were married on 17.02.2002. From the date of marriage itself, the demand of dowry was made, which continued on multiple occasions; she was beaten up; Rupees 5 Lakhs were demanded for purchase of a house, and, finally, on 03.09.2003, she was forced to live with the revisionist Aman Panchal in a rented accommodation in Delhi. Her certificates were also kept by the revisionists and others. She has also stated that on 26.09.2003, the revisionist Aman Panchal tried to press against her neck; he poured Kerosene oil on her on 23.10.2003; he had beaten up her on 18.04.2004 and finally on 03.05.2004, the revisionist Aman Panchal left her company. She had to lodge a missing report at a police station. And finally, finding herself helpless she left for her father’s house on 15.05.2004, after informing the other revisionists. According to her, on 06.06.2004, at about 11:30 in the morning, the revisionists, along with other family members visited her father’s house, abused, attacked and assaulted them, of which, finally a report was given on 16.06.2004. 13. PW2 Smt. Santosh and PW3, Shri Ramlal, are the mother and the father of the informant, respectively. They have grossly supported the statement of PW1, Rashmi. 13. PW2 Smt. Santosh and PW3, Shri Ramlal, are the mother and the father of the informant, respectively. They have grossly supported the statement of PW1, Rashmi. Factually, they were not the eye- witnesses to what had happened in the in-laws house of PW1, Rashmi. 14. PW4 Gokul Chand Madan is one of the neighbourers of the PW3, Ramlal. He has stated that PW3, Ramlal, had told him about the incident of 06.06.2004 and the demand of dowry by the revisionists and others. 15. PW5, Rampal, has stated that in the year 2003, the revisionist Aman Panchal along with PW1 Rashmi were his tenant. He has witnessed their daily quarrels; the revisionist Aman Panchal assaulted Smt. Rashmi. Once he had pressed against her neck. When she shouted, he went to rescue her. He has stated about other incidents as well. 16. PW6 is the Investigating Officer. He is conducted the investigation and proved the documents. 17. In the instant case, the examination of the revisionists under Section 313 of the Code is quite brief. PW1, Smt. Rashmi, has stated about the incident of various things in her examination. But, a joint question has been put to the revisionists that they, after the marriage of PW1, Rashmi with the revisionist Aman Panchal, on 17.02.2002 till 06.06.2004, demanded dowry and harassed her physically and mentally and demanded Rs. 5 Lakhs. The examination under Section 313 of the Code may not be said to be meeting all the requirements of Section 313 of the Code. 18. In the case of Nar Singh vs. State of Haryana, 2015 (1) SCC 496 , the Hon’ble Supreme Court has laid down guidelines as to what would be the course of action if examination under Section 313 of the Code does not meet the requirement of law. The Hon’ble Supreme Court observed as hereunder: “30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under: 30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer. 30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. 30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh. 30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.” 19. As stated, learned Amicus Curiae would submit that, at this stage, the matter may not be remitted for retrial, on account of long time already spent in the matter and keeping in view the age of the revisionists Rajpal and Smt. Nirmal. 20. In the case of Nar Singh (supra), this situation has been envisaged by the Hon’ble Supreme Court in Para 30.4. The revisionists have been in jail from 23.03.2023 the duration is not big. But, it is stated that 2 of the revisionists are of much advanced stage, which is not disputed. 21. This Court is of the view that definitely the interest of justice would be served if the revision is decided on its own merits now. The revisionists have been in jail from 23.03.2023 the duration is not big. But, it is stated that 2 of the revisionists are of much advanced stage, which is not disputed. 21. This Court is of the view that definitely the interest of justice would be served if the revision is decided on its own merits now. Since learned Amicus Curiae has restricted the submission to the quantum of sentence, therefore, the Court proceeds further to examine the adequacy of the sentence. 22. Sentencing is one of the most difficult tasks in the criminal justice system. It depends on various factors like, the offence, the offender, the genesis of the offence, its impact on the society, its ramifications, age of the offenders or the victim, etc. 23. It is a case of harassment and the demand of dowry. Admittedly, no medical reports have been filed. There have been allegations of marpeet. In the year 2006, the revisionist was examined under Section 313 of the Code. On 24.01.2006, the revisionist Rajpal was of 56 years of age and Smt. Nirmal was of 52 years of age, which means they are 73 and 69 years of age respectively now. 24. Having considered, this Court is of the view that keeping in view the age of the revisionists, the nature of offence and other attending circumstances of the case, the interest of justice would be served if the revisionists Rajpal and Smt. Nirmal are sentenced to the period, which they have already undergone. 25. Insofar as the revisionist Aman Panchal is concerned, having considered the entirety of facts, this Court is of the view that the interest of justice would be served if his period of sentence under Section 498A IPC is reduced to 3 months and under Section ¾ of the Act, the period of sentence is reduced to 2 months. The fine shall remain unaltered. 26. The conviction of the revisionists under Section 498A IPC and Section ¾ of the Act is upheld. 27. The revisionists Rajpal and Smt. Nirmal are sentenced under Section 498A IPC to the period of imprisonment, which they have already undergone in this case. Both the revisionists Rajpal and Smt. Nirmal are sentenced to simple imprisonment for a period of one month under Section 3/4 of the Act. The fine shall remain unaltered. 28. 27. The revisionists Rajpal and Smt. Nirmal are sentenced under Section 498A IPC to the period of imprisonment, which they have already undergone in this case. Both the revisionists Rajpal and Smt. Nirmal are sentenced to simple imprisonment for a period of one month under Section 3/4 of the Act. The fine shall remain unaltered. 28. The revisionist Aman Panchal is sentenced under Section 498-A IPC to imprisonment for a period of 3 months. He is sentenced under Section 3/4 of the Act to imprisonment for a period of 2 months. The fine shall remain unaltered. 29. The revisionists Rajpal, Smt. Nirmal and Aman Panchal are in jail. Let the revisionists Rajpal and Smt. Nirmal be set free forthwith, if not wanted in any other case. 30. The revisionist Aman Panchal shall serve out the remaining sentence, as indicated hereinabove. 31. The revision is partly allowed accordingly. 32. Let a copy of this judgment along with the lower court record be forwarded to the court concerned for compliance. 33. Let a copy of this judgment be forwarded to the concerned jail also.