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JHARKHAND HIGH COURT
Shree Chandrashekhar, J.
(Through Video Conferencing)
Avinash Kumar – Petitioner
versus
State of Jharkhand Opp. Party
Criminal Revision No.92 of 2015
Decided on 23.7.2021
Counsel for the Parties:
For the Petitioner:Mr. Deepankar Roy, Advocate
For the State: Mrs. Nehala Sharmin, APP
IMPORTANT POINT
Dowry offence – Conviction cannot be based on vague allegation of demand of dowry against accused.
Headnote:
Indian Penal Code, 1860 – Sections 498A and 323 – Dowry Prohibition Act, 1961 – Section 3/4 – Dowry offence – Cruelty and hurt – Conviction and sentence – There should be specific pleading and proof as regards marriage – Without proving second marriage of petitioner like any other fact no inference of any kind can be drawn on that basis – Co-convicts who are father-in-law and mother-in-law of victim lady were acquitted by appellate Court holding that there was no specific evidence against these convicts – There is vague allegation of demand of dowry against all accused – No material was produced by prosecution to establish that petitioner has contracted second marriage – Trial Judge has assumed existence of facts which were not proved by prosecution and Appellate Court has also ignored this aspect of matter – Order of conviction and sentence passed by Trial Court and order as affirmed by Appellate Court set aside. (Paras 4, 5, 8, 10 and 11)
Result: Criminal Revision Petition allowed.
JUDGMENT
The petitioner who was made accused along with his other family members has challenged the judgment dated 08.12.2014 passed in Criminal Appeal No. 69 of 2012 by which his challenge to the judgment dated 18.12.2012 in Trial No. 28 of 2012 has failed.
2. Lohardaga P.S Case No.78 of 2006 was lodged on 13.04.2006 against Avinash Kumar, Kumari Devi, Ramdeo Singh, Sumitra Devi, Bisnudeo Singh, Bishwas Singh, Nivas Kumar @ Happy, Sampo Kumar, Pampi Kumar, Nitu Devi, Guddi Devi, Gandhi Jee, Harwati Singh and Ramchandra Singh for committing offence under sections 498A, 323 and 379 read with section 34 of the Indian Penal Code. After the investigation a charge-sheet was laid against Avinash Kumar, Kumari Devi, Sumitra Devi, Ramdeo Singh, Bisnudeo Singh and Bishwas Singh. The learned Chief Judicial Magistrate, Lohardaga took cognizance of the offence under sections 498A and 323 of the Indian Penal Code as also under section 3/4 of the Dowry Prohibition Act and issued summons to Avinash Kumar, Kumari Devi and Ramdeo Singh – Avinash Kumar is the husband of the victim lady. During the trial the prosecution has examined seven witnesses out of which PW5 is the wife of Avinash Kumar. The brother, sister and parents of the victim lady were examined on the point of harassment and torture caused by the accused to the victim lady. The learned trial Judge has held that PW1, PW2, PW3, PW4 and PW5 supported the occurrence and deposed about torture and beating to the victim lady at the hands of the accused. Accordingly, Avinash Kumar, Ramdeo Singh and Kumari Devi were convicted and sentenced to SI for three years under section 498A and SI for one year under section 323 of the Indian Penal Code. The accused were further sentenced to SI for two years imprisonment and a fine of Rs.1000/- each under section 4 of the Dowry Prohibition Act with default stipulation to suffer further SI for one month.
3. In appeal, the appellate Court has observed as under:
“28. Though much argument has been advanced to show with reference to the evidence that since the occurrence was going on from the year 2002 but no case was instituted either at the home district of the accused persons i.e. Nawada or the home district of the informant i.e. Nalanda where it was alleged that the accused persons have assaulted, have demanded dowry, some of the members of the in-laws family have taken the photographs and C.D in a deceitful manner but only because the father of the informant came in posting at Lohardaga one false case is instituted using the clout of a police officer. But at the same time if P.W 5 Para 16 is considered it will transpire that while the informant family were residing at Biharsharif (Nalanda) then also P.W 1 was in police service then in the circumstances he can also use his clout if there was any intention to implicate them falsely but using the same argument it can also be considered that if all the facts which is alleged in the F.I.R. was available why there was no such case by the informant family. One plausible reason can also be that there might have been some marital disparities between the parties but it may not attract 498A thus the matter was kept in abeyance but when on 12.3.2006 A/1 came abused the informant assaulted her and had made the demand then the case appears to have been filed but while filing the case some more persons are also clubbed in to put more pressure upon the accused party which is a very general tendency in such marital cases and that is the one of the reason that in course of investigation some were left out. At this juncture the allegation in the F.I.R that the marriage was settled with the help of the maternal grandparents of A/1 has clearly been ruled out by P.W. 3. Thus it appears that part of the prosecution case is doubtful else there was no reason for the informant not to institute the case at the time when the incident happened.
29. The way in which the evidence has been adduced also will show that the prosec
