CAV Judgment

1. Challenge in this Criminal Revision is to the order dated 15.03.2011 passed by the First Additional Session Judge, Mahasamund in Criminal Appeal-98 of 2009, whereby learned Appellate Court affirmed the judgment of conviction and sentence passed by learned Judicial Magistrate First Class, Pithora, District Mahasamund in Criminal Case-30 of 2009, wherein applicant was convicted under Section 498A of IPC and sentenced to undergo one year RI and to pay fine of Rs.500/- with default stipulation.

2. Facts of case in brief are that complainant- Phoolmatibai (PW1), wife of applicant lodged written report before Superintendent of Police, Mahasamund, District-Mahasamund on 15.09.2006, pleading therein that she was married to applicant; from their wedlock they were blessed with three girl children; applicant used to assault her, he kept another girl-Nalini as his wife and left complainant and children at her parents’ house. On application of complainant, a community meeting was convened, and the decision taken in meeting was not complied by applicant. Thereafter, report was lodged. Based on written report, concerned Police Station registered FIR on 04.05.2007 for the offence punishable under Section 498A of the IPC against applicant. After completion of investigation, Police submitted Final Report. Learned trial Court framed charge against applicant for offence under Section 498A of IPC. One complaint case was also filed by wife of applicant which was merged in the case registered by police vide order dated 25.06.2008 and charge under Section 494 of IPC was also framed. To prove the charge against applicant, prosecution exhibited five documents. They are, Ex.P1 Application by complainant, Ex.P2 FIR, Ex.P3 Seizure Memo, Ex.P4 Arrest Memo, and Ex.P5 Spot Map. Prosecution examined as many as 10 witnesses, including complainant, her brother, mother and father, along with other independent witnesses. They are, PW1 Phulmatibai (complainant), PW2 Kamlesh Kumar Pradhan (brother of PW1), PW3 Bodobai (mother of PW1), PW4 Sadanand (father of PW1), PW5 Yakab Das, PW6 Gajanand, PW7 Kunjram, PW8 Jagdeesh, PW9 RN Saxena, PW10 Brishbhanu Sahu. Statement of applicant/ accused was recorded under Section 313 CrPC in which he pleaded his innocence and false implication in the case. He examined DW1 Sushil Kumar, DW2 Rakshapal, in his defense and also produced some documents, one of which is Ex.D3, stated to be in handwriting of complainant.

3. Learned Magistrate upon appreciation of documentary and oral evidence, came to conclusion that prosecution failed to prove charge under Section 494 IPC against applicant and other three accused persons and charge under Section 498A of IPC against applicant held to be proved, passed judgment of conviction and imposed punishment of rigorous imprisonment of one year and fine of Rs.500/-, in default of payment of fine, 15 days additional imprisonment. Judgment of conviction and sentence passed by learned Magistrate/trial Court was challenged in appeal under Section 374 of CrPC before the Additional Sessions Judge, Mahasamund. Appellate Court, who dismissed the appeal filed by applicant by impugned judgment.

4. Smt Indira Tripathi, learned counsel for the applicant submitted that complainant/wife lodged absolutely false and baseless written report against applicant. She contended that applicant witnessed illicit relationship between complainant and her brother-in-law (jija). Thereafter, he called DW1 Sushil Kumar and DW2 Rekhpal, informed them and also convened a meeting in his house. During meeting, complainant admitted her guilt and wrote on a piece of paper in her own handwriting that she will not commit such mistake in future, which is marked as Ex.D3. There are material contradictions and omissions in statements of prosecution witnesses. She submits that in written report there is no allegation of demand of dowry but in oral statement of complainant, her brother, mother and father made allegations to this