JUDGMENT

Rajeev Ranjan Prasad, J. - Heard learned counsel for the petitioners and learned counsel representing opposite party no. 2.

2. The matter has been heard at length.

3. This revision application has been preferred for setting aside the judgment dated 08.03.2018 passed in Cr. Appeal No. 39 of 2017/18 of 2017 by which the learned Fast Track Court-II, Sitamarhi has been pleased to set aside the judgment dated 08.05.2017 passed by S.D.J.M. Sadar, Sitamarhi in G.R. Case No. 1045 of 2011, Trial No. 1345 of 2017 as well as the order of sentence dated 09.05.2017 passed by learned Chief Judicial Magistrate, Sitamarhi in the said case.

4. The facts of the case are not much in dispute. Pursuant to the lodgment of Bairganiya P.S. Case No. 100 of 2011 for the offences alleged under Section 498A/34 of the Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act, a charge-sheet was filed against the three accused persons out of five. Charge was framed against those three but in course of trial the other two accused were also summoned under Section 319 Cr.P.C. In this way all the five accused stood trial.

5. The learned S.D.J.M. after recording the evidences found the accused persons guilty and convicted them for the offences under Section 498A/34 of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act. While hearing learned counsel for the accused on the point of sentence, the learned S.D.J.M. took a view that the offence committed by the accused are of very serious nature and the materials available on the record are such that severe punishments should be awarded to the accused persons but because the learned S.D.J.M. could have passed only an order of sentence of imprisonment for a term not exceeding three years or fine exceeding Rs. 10,000/- or both, the records of the case were transferred to the court of learned C.J.M., Sitamarhi in terms of Section 325 (1) of the Code of Criminal Procedure.

6. After passing of the judgment dated 08.05.2017 when the learned S.D.J.M., Sadar, Sitamarhi sent the records of the case to the court of learned Chief Judicial Magistrate, Sitamarhi, a hearing was given to the accused persons on the point of sentence on 09.05.2017. The learned C.J.M. passed order of sentence whereunder all the five accused persons were sentenced under Section 3 of the Dowry Prohibition Act to undergo simple imprisonment of five years. They were also held liable to pay the dowry amount in proportion so each of the accused were sentenced to fine of Rs. 1,02,200/-. In default to pay fine they were directed to undergo further simple imprisonment for six months. All the five accused were also convicted under Section 4 of the Dowry Prohibition Act and under this provision they were sentenced to undergo simple imprisonment of one year with a fine of Rs. 5,000/- each. Further under Section 498A/34 of the Indian Penal Code all the five accused persons were sentenced to undergo simple imprisonment of three years with fine of Rs. 500/- each. All the sentences were to run concurrently and the period already served by the accused persons during trial were liable to be set off.

7. The accused-petitioners preferred criminal appeal giving rise to Cr. Appeal No. 39 of 2017/18 of 2017 in the court of learned Fast Track Court-II, Sitamarhi. The appellants-petitioners challenged the judgment of conviction dated 8th May, 2017 passed by learned S.D.J.M. Sadar, Sitamarhi as well as the order of sentence dated 9th May, 2017 passed by learned C.J.M., Sitamarhi.

8. For purpose of setting aside of the judgment of conviction and the opinion of guilt recorded by the learned S.D.J.M., the appellants-petitioners argued before the learned appellate court that no separate charge under Section 3 and 4 of the Dowry Prohibition Act was framed and only by framing a joint charge under Section of the Dowry Prohibition Act, the guilt of the accused persons against the charged Sections were taken to be proved. The appellants-petitioners also