ORDER :

Anubha Rawat Choudhary, J.

Heard Mr. Dilip Kumar Prasad, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. P.D. Agrawal, learned counsel appearing on behalf of the opposite party-State.

3. The instant revision application has been filed against the judgement dated 21.02.2011 passed by learned Additional Judicial Commissioner-I, Khunti in Cr. Appeal No. 14 of 2010 affirming the judgement of conviction of the petitioner for offence under Section 498A of Indian Penal Code. The learned appellate court acquitted the petitioner for alleged offence under Section 494 of Indian Penal Code by holding that the case under the said section was not proved beyond reasonable doubt. The learned appellate court also acquitted the petitioner for offence under Section 4 of Dowry Prohibition Act, 1961 by holding that there was no specific evidence for demand of Dowry for the said offence. However, the learned appellate court upheld the conviction under Section 498A IPC and modified the sentence of the petitioner for offence under Section 498A of Indian Penal Code by reducing it to Rigorous Imprisonment for a period of one year and six months and fine of Rs. 2000/-.

4. The trial court judgement was passed by learned S.D.J.M., Khunti on 29.01.2010 in Karra P.S. Case No. 31 of 2005 corresponding to G.R. No. 223 of 2005 by which the learned trial court convicted the petitioner under Section 498A/494 of Indian Penal Code and also under Section 4 of Dowry Prohibition Act, 1961. The petitioner was sentenced for two years Rigorous Imprisonment and fine of Rs. 2,000/- for offence under Section 498A of Indian Penal Code and also two years Rigorous Imprisonment and fine of Rs. 2,000/- for offence under Section 494 of Indian Penal Code. Learned trial court also convicted and sentenced the petitioner for six months Simple Imprisonment and fine of Rs. 2,000/- for offence under Section 4 of Dowry Prohibition Act, 1961. The sentences were directed to run concurrently. Each of the sentences of fine had a default clause indicating further imprisonment in case of non-deposit of fine. So far as offence under Section 498A of Indian Penal Code is concerned, it was indicated that the in case of default of payment of fine, there would be further three months’ imprisonment.

Arguments on behalf of the petitioner :

5. Learned counsel for the petitioner submits that although the learned trial court had convicted the petitioner-husband for alleged offence under Section 494/498A of Indian Penal Code as well as Section 4 of the Dowry Prohibition Act, 1961, but the learned appellate court had acquitted the petitioner for offence under Section 494 of Indian Penal Code as well as Section 4 of the Dowry Prohibition Act, 1961. He submits that the learned appellate court after appreciating the materials on record, gave a specific finding that no specific evidence was there on record for offence under Section 4 of the Dowry Prohibition Act, 1961. He further submits that the offence under Section 494 of Indian Penal Code was held to be not proved beyond reasonable doubt against the petitioner. Learned counsel submits that the main cause of dispute between the petitioner and his wife was that it was alleged that the two children were begotten by her from third person namely Manoj Kumar and not from the accused-husband.

6. Learned counsel submits that once the demand of dowry could not be proved and there was acquittal under Section 4 of the Dowry Prohibition Act, 1961, the conviction under Section 498A of Indian Penal Code could not have been sustained by the learned appellate court without there being any material to show that the cruelty was of a grave nature and it fell within the definition of ‘cruelty’ under explanation (a) of Section 498A of Indian Penal Code. Learned counsel also submits that as the demand of any property including dowry could not be proved, therefore the cruelty did not fall under explanation (b) of Section 498A of Indian penal Code.

7. Learned