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2024 DIGILAW 625 (JHR)

Ajay Oraon, S/o. Rama Oraon v. State of Jharkhand

2024-06-26

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. Heard learned counsel for the petitioner as well as learned APP for the State. 2. The present criminal revision is directed against the judgment dated 17.12.2014 passed by learned District & Additional Sessions Judge-II, Gumla in Criminal Appeal No. 28 of 2013, whereby and whereunder the appeal preferred by the petitioners against the judgment of conviction and order of sentence dated 30.01.2013 passed by learned Additional Chief Judicial Magistrate, Gumla in G.R. 1090 of 2006 (T.R. No. 186 of 2013) arising out of Sisai (Bharno) P.S. Case No. 144 of 2006, whereby the petitioners have been held guilty for the offence under Section 498A of the I.P.C. and sentenced them to undergo S.I. for two years and to pay a fine of Rs.1,000/- each with default stipulation, has been affirmed. 3. The factual matrix of the case giving rise to this revision is that informant Usha Devi was married with petitioner Ajay Oaon in the year 2004 and out of their wedlock, they were blessed with one son, who was about 1½ years at the time of institution of FIR in the year 2006. As per FIR, the allegation is that since last six months ago, she was being assaulted by her husband, mother-in-law and father-in-law at her matrimonial home and she was driven away along with her child from the matrimonial home and was residing at her parental home and earning her livelihood as a maid servant. She came to know that her husband was going to solemnize second marriage with a girl of Village – Moregaon and on that day, there was marwa ceremony, then she went to verify the matter and found to be true and lodged this case. Accordingly, Sisai (Bharno) P.S. Case No. 144 of 2006 dated 29.12.2006 was registered for the offence under Sections 498A, 494 / 511 of I.P.C. 4. After investigation, charge sheet was submitted against all the three accused persons, who were put under trial. After conclusion of trial, petitioners were held guilty for the offence under Section 498A of the I.P.C. and acquitted for the offence under Sections 494 & 511 of the I.P.C. and all the accused persons were sentenced to undergo S.I. for two years along with fine of Rs.1,000/- each with default stipulation. 5. After conclusion of trial, petitioners were held guilty for the offence under Section 498A of the I.P.C. and acquitted for the offence under Sections 494 & 511 of the I.P.C. and all the accused persons were sentenced to undergo S.I. for two years along with fine of Rs.1,000/- each with default stipulation. 5. The judgment of conviction and order of sentence of petitioners was challenged in Criminal Appeal No. 28 of 2013 before the learned Sessions Judge, Gumla, which was heard and disposed of vide judgment dated 17.12.2014 by learned District & Additional Sessions Judge-II, Gumla, whereby the conviction and sentence of the petitioners was upheld and confirmed and appeal was dismissed, which has been assailed in this revision. 6. Learned counsel for the petitioners has argued that neither in the FIR nor in the evidence of victim any specific overt act has been attributed against any of the petitioners. There is no whisper that any illegal demand of money was ever asked by the petitioners from the victim or her parents and she was not pressurized and harassed for its fulfillment. There was very cordial relationship between husband and wife with all the family members and within 1½ years of marriage, she was blessed with a son, but due to quarrelsome nature, she voluntarily left her matrimonial home and never joined the company of her husband, inspite of several attempts made by the petitioners. There is no specific day and time when the victim was ill-treated, tortured mentally or physically by the petitioners and on which day, she was driven away from her matrimonial home. No injury report showing physical assault has been brought on record. No circumstance has been proved showing any grave conduct by the petitioners, which were likely to drive her to commit suicide or was dangerous to her life or limb. The victim has traced out a false and concocted story that since her husband was going to solemnize second marriage with one girl of Village – Moregaon, she had lodged this case. This fact has not been proved with cogent evidence and not accepted by the trial court as well as appellate court and all the accused persons were acquitted for the offence under Sections 494 read with 511 of the I.P.C., therefore, the very genesis of occurrence and motive for lodging this case is falsified. 7. This fact has not been proved with cogent evidence and not accepted by the trial court as well as appellate court and all the accused persons were acquitted for the offence under Sections 494 read with 511 of the I.P.C., therefore, the very genesis of occurrence and motive for lodging this case is falsified. 7. This is a burning case of misuse of provision of Section 498A of the I.P.C., wherein not only the husband, but his old parents have been dragged and roped with false allegations. The petitioner no. 1, who is the husband of the victim has remained in custody for more than five months and his parents have also undergone four months custody without any rhyme and reason. Although this revision has been admitted only subject to quantum of sentence, but it has merits showing perversity in the judgment of trial court as well as appellate court. Hence, this revision may be allowed by setting aside the impugned judgments and orders passed by the learned trial court as well as appellate court. 8. In alternative, it is pleaded that the petitioners have been sufficiently punished during investigation and trial by remaining in custody, which is proportionate to the factum of cruelty proved against them and petitioners deserve to be released on sentence of imprisonment already undergone. 9. On the other hand, learned Additional Public Prosecutor assisted by learned counsel for the opposite party no. 2 have vehemently opposed the aforesaid contentions raised on behalf of the petitioners and submitted that both the courts below have concurrently recorded the finding of guilt of the petitioners, who have subjected the informant / victim, a married lady to cruelty and harassment by giving her physical assault and mental trauma and without any reasonable cause left her at her own destiny, who is still suffering agony of destiny along with minor child. Hence, the conviction and sentence of petitioners are justified under law. So far quantum of sentence is concerned, in the facts and circumstances and conduct of the petitioners shown against the victim lady appears to be proportionate just and proper and this revision has no merits and is fit to be dismissed. 10. I have given anxious consideration to the rival contentions of the parties and also perused the impugned judgments and order along with other materials available on record. 11. 10. I have given anxious consideration to the rival contentions of the parties and also perused the impugned judgments and order along with other materials available on record. 11. Before imparting my verdict on merits, the provision of Section 498A is extracted as under:- Section 498A - 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 purposes 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. 12. In the instant case, charge was framed under two heads on 04.08.2007. The first part of the charge reads as under:- “Firstly - That you, on or about the in the year 2004 and thereafter at Village – Singrauli, P.S. – Bharno (Sisai), District – Gumla, being husband and relatives of the husband of a married woman namely, Usha Devi, subjected her to physical and mental torture amounting to cruelty and thereafter committed an offence punishable under Section 498A of the Indian Penal Code, and within my cognizance”. The second charge is only against the husband Ajay Oraon, which reads as under:- “That you on or about 29th day of December, 2006 at Village – Morgaon, P.S. Bharno (Sisai), District – Gumla had a wife namely, Usha Devi, living having been validly married and that you attempted to marry another woman again during the life time of the said Usha Devi, and thereby committed an offence under Section punishable of the 494 / 511 of the Indian Penal Code, and within my cognizance.” 13. The petitioner – husband Ajay Oraon has been acquitted from the charges under Sections 494 / 511 of the I.P.C., which has also been confirmed by the appellate court. The petitioner – husband Ajay Oraon has been acquitted from the charges under Sections 494 / 511 of the I.P.C., which has also been confirmed by the appellate court. So far charge under Section 498A of the I.P.C. against all the petitioners are concerned, no specific day, time, year or manner of commission of offence has been mentioned. Not only this “cruelty” as defined and explained in the two explanations as appended under Section 498A of the I.P.C. has also not been clarified in the charge itself. The contents of FIR, as discussed above, also does not mention as to how and in what manner the victim-informant was subjected to cruelty, rather she has given a general allegation that about six months prior to lodging this FIR, she was continuously being assaulted at her matrimonial home. Hence, she returned to her parental home and in the month of December, 2006, she heard about solemnization of second marriage by her husband and then, she has lodged this case, as such, the very motivational fact for institution of this FIR i.e. likelihood of second marriage to be performed by husband, has been disbelieved by both the courts below on the basis of evidence adduced by the prosecution. 14. It further appears that the victim / informant Usha Devi has been examined as P.W.-9 and has categorically deposed that her marriage was solemnized with the petitioner Ajay Oraon about 8 years ago in Durga Temple. After marriage, she went to her matrimonial home and started discharging conjugal obligations with her husband. She also admits that about one year, she lived very quiet well and gave birth to male child namely, Rajesh Oraon. Thereafter, her husband and his parents started her assaulting saying that they will perform second marriage of her husband. Her husband has solemnized second marriage and drove her away from her matrimonial home. She is earning her livelihood by doing labour work and maintaining her child also. This is very short deposition of the victim and she has alleged nothing else against any of the petitioners. She has denied the suggestion of defence that she herself does not want to live with the petitioner due to his poverty and has lodged false case on suspicion. This is very short deposition of the victim and she has alleged nothing else against any of the petitioners. She has denied the suggestion of defence that she herself does not want to live with the petitioner due to his poverty and has lodged false case on suspicion. That her husband has solemnized second marriage with one Dasmi Orain, although real fact is that the said lady has been married with brother of Ajay Oraon. Other witnesses of facts examined by prosecution have reiterated the same thing against informant. 15. The gravamen of charge leveled against the petitioners and the factual aspects proved by the prosecution are of not very serious in nature, so as to justify rigorous punishment of imprisonment for two years. 16. Considering the overall aspects of the case, nature of allegation and conduct proved by prosecution against the petitioners, in my considered view, the sentence awarded to the petitioners are disproportionate to their guilt. It is obvious that petitioners have remained in custody during trial of the case about five months, which appears sufficient punishment in the present case. 17. Accordingly, without interfering in the finding of conviction of the petitioners, this revision is dismissed on merits, but with modification in sentence to the extent mentioned above i.e. petitioners are sentenced to undergo imprisonment for the period already undergone instead of rigorous imprisonment of two years along with fine awarded by the learned trial court. 18. Petitioners are on bail, as such, they shall be discharged from the liability of bail bond and sureties shall also be discharged. 19. Let a copy of this judgment along with trial court record be sent to the concerned trial court for information and needful.