Avinash Kumar vs The State Of Jharkhand

Court: Jharkhand High Court

Bench: Justice Shree Chandrashekhar

Avinash Kumar vs The State Of Jharkhand on 23 July, 2021

Law Point:

No Specific evidence against husband to establish that he contracted second marriage. Conviction revoked.

JUDGEMENT

1. 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 prosecution was working very leisurely in adducing evidence which can be apparent from the fact that alongwith the F.I.R some documents are made annexures, then in the circumstances the original or proper copy must be with the prosecution party but those documents are not brought on record and thus such documents has also been wrongly marked only as ‘X’ for identification. It appears also that the learned Court was also not conversant in marking documents for identification which is apparent that all the documents are marked-‘X’. The rule is clear in this regard that if there are several documents which are to be marked for identification then they should be given a consecutive number as X, X/1, X/2 and so on and so forth. Thus the learned Court must be mindful while exhibiting documents.

The manner in which the F.I.R was drafted and a particular incident regarding taking away the photographs, C.D etc. of the marriage was alleged and a suggestion was put by the defence to P.W 1 appears suggestive to the fact that the marriage between P.W 5 and A/1 was not solemnized in a manner in which marriages are performed rather it shows that when A/1 was still pursuing his study he appears to have been taken away by some of the members of the informant party for a force marriage which was very much prevalent at the time when the marriage which was said to have been solemnized in some particular social castes and the informant party was very much conscious of the fact that marriage was solemnized in such a way, thus has given a particular instance of deceitfully taking away the photographs etc. being apprehensive that the accused party may deny the marriage and in order to support all these facts the facts regarding lodging of complaint before the authorities where A/1 was getting training and also for inserting the name of A/1 in some relevant documents, all these facts are suggestive to show that marriage was solemnized but in a concealed manner although it has been admitted by the defence thus this question has got no much relevance but it inspired from the record thus it has been commented in such a way.”

4. The co-convicts Ramdeo Singh and Kumari Devi who are father-in-law and mother-in-law of the victim lady were acquitted by the learned appellate Court holding that there was no specific evidence against these convicts. However, conviction of the petitioner who was the appellant no.1 in Criminal Appeal No.69 of 2012 was held proper for the following reasons:

“30. The corollary of all the observations appears to be that the prosecution has been able to substantiate his case only against A/1 there is no specific evidence against A/2 and A/ 3. Thus holding of guilt by the court below against A/2 and A/3 is bad in law. In the circumstances they are acquitted but however the evidence against A/1 is consistent so far the incident of 12.3.2006, then there is some evidence against A/1 which is brought by the prosecution that A/1 had married with another lady. Although it may come within the purview of 494 of the I.P.C. but it is a grave injury to a woman and for this purpose explanation (a) of 498A is attracted against him and in the circumstance the action of A/1 is an act of willful conduct which causes mental injuries to the informant P.W5, thus and in the circumstance when this particular fact of marrying another lady is also not disputed then taking help of the law laid. It can said to be not disputed. Thus in any way A/1 has been rightly held guilty by the court below for offence u/s 498A of the I.P.C. as also 323 of the I.P.C. and 4 of the Dowry Prohibition Act.”

5. In the cross-examination, the prosecution witnesses have admitted that the alleged occurrence of 12.03.2006 took place at Lohardaga where the victim lady was staying in the house of her father. The father of the victim lady was employed under the Police Department and he was residing in a house within the premises of Lohardaga police station. Still, the witnesses have admitted in the Court in their cross-examination that no complaint or a First Information Report regarding assault by the petitioner to his wife was lodged on 12.03.2006. There is vague allegation of demand of dowry against all the accused and similar allegations were made against Sumitra Devi, Bisnudeo Singh and Bishwas Singh, who were however not sent up for trial. The learned appellate Court has acquitted Ramdeo Singh and Kumari Devi holding that the prosecution could not produce specific evidence against them, but what is the specific evidence against the appellant no.1 is not indicated in the judgment. In the circumstances, the Court would assume that on the basis of similar evidence other two convicts were acquitted while Avinash Kumar was convicted. A reading of the judgment in Criminal Appeal No.69 of 2012 would disclose that he has been convicted under section 498A of the Indian Penal Code primarily for the reason that he has contracted second marriage. The reason given by the learned appellate Court is that second marriage of the petitioner would have caused severe mental cruelty to the wife. Here again, I find that no material was produced by the prosecution to establish that Avinash Kumar has contracted second marriage, except statement of the prosecution witnesses that he got married again on 06.06.2009. There should be specific pleading and proof as regards marriage [refer, “Santi Deb Berma v. Kanchan Prava Devi (Smt)” 1991 Supp (2) SCC 616], and without proving second marriage of the petitioner like any other fact no inference of any kind can be drawn on that basis.

6. Explanation (a) to section 498A of the Indian Penal Code reads as under:

“(a) any wilful 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;”

7. The true effect of Explanation (a) and meaning of “cruelty” has been discussed by the Hon’ble Supreme Court in a catena of judgments including the one in “K. V. Prakash Babu v. State of Karnataka” (2017) 11 SCC 176 wherein the Hon’ble Supreme Court has observed as under:

“9. In view of the aforesaid evidence, the question that emerges for consideration is whether the conviction under Sections 498-A and 306 IPC is legally justiciable in this context. We think it appropriate to refer to Section 498-A IPC. The said provision reads as follows:

“498-A. 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 wilful 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.”

10. The said provision came up for consideration in Girdhar Shankar Tawade v. State of Maharashtra, where the Court dwelling upon the scope and purport of Section 498-A IPC has held thus : (SCC p. 180, para 3) “3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures : whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide, or (ii) to cause grave injury or, (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”

(emphasis supplied)

11. In Gurnaib Singh v. State of Punjab, while dwelling upon the concept of “cruelty” enshrined under Section 498-A the Court has opined thus : (SCC pp. 118-19, para 18) “18. … Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty.”

12. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.

13. In this regard, Mr Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on, but extra-marital relationship as such is not defined in the Penal Code. The Court analysing further in the context of Section 498-A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that : (PinakinMahipatray case, SCC p. 58, para 27) “27. Section 306 refers to abetment of suicide [which] says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra-marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.” (emphasis added)

14. Slightly recently in GhusabhaiRaisangbhaiChorasiya v. State of Gujarat, the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the Explanation (a) to Section 498-A IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below : (SCC pp. 759-60, para 21) “21. …True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in PinakinMahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted.”

15. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalise but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.”

8. In view of the aforesaid discussions, I find that the judgment in Criminal Appeal No.69 of 2012 suffers from material irregularity, the learned trial Judge has assumed existence of facts which were not proved by the prosecution and the learned appellate Court has also ignored this aspect of the matter.

9. In “Amit Kapoor v. Ramesh Chander” (2012) 9 SCC 460 the Hon’ble Supreme Court has observed as under :

“12. …….If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. …..”

10. Examined in the above context, I find serious error in approach of the learned appellate Court. The judgment dated 08.12.2014 in Criminal Appeal No.69 of 2012 passed in respect of the petitioner is not sustainable for the aforesaid reasons. Accordingly, the order of conviction and sentence dated 18.12.2012 passed by the learned trial Court and the order dated 08.12.2014 as affirmed by the appellate Court are set-aside.

11. Accordingly, Criminal Revision No.92 of 2015 is allowed.

12. Let a copy of this order be transmitted to the Court concerned through ‘Fax’.

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