Beli Baraik vs The State Of Jharkhand

Court: Jharkhand High Court

Bench: Mrs. Justice Anubha Rawat Choudhary

Beli Baraik vs The State Of Jharkhand on 18 April, 2021

Law Point:

Acquittal of Husband for alleged offences, No evidence led to substantiate allwged offence under sections 494, 498A, 420, IPC, Husband Acquitted

JUDGEMENT

1. Heard Mr. Sunil Kumar, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Shekhar Sinha, learned counsel appearing on behalf of the opposite party – State.

3. Heard Mr. Ashish Verma, learned counsel appearing on behalf of the opposite party no.2.

Arguments of the Petitioner

4. Learned counsel for the petitioner submits that the present revision application has been filed for setting aside the judgment dated 10.04.2012 passed by learned Judicial Magistrate 1st Class, Gumla in G.R. No.377 of 2006 to the extent whereby the learned court below has been pleased to observe that the petitioner is getting maintenance regularly and is being deposited in her account whereas the same is not correct and this error has crept in due to inadvertence or otherwise while appreciating the evidence by the learned court below.

5. Learned counsel for the petitioner, during the course of argument, has submitted that the petitioner is not at all aggrieved by the judgment of acquittal of the opposite party no.2 for offence under Sections 494, 498A and 420 of Indian Penal Code by the learned court below, but is aggrieved by the observation of the learned court below that the petitioner, being the wife of the opposite party no.2, is getting 45% of the salary of the husband which is being deposited in her bank account.

6. During the course of argument, learned counsel for the petitioner has referred to the background of the case by indicating that opposite party no.2 was employed in the police department since the year 1997 and in the year 2004-2005, he was posted at Dhanbad. The marriage was solemnized between the petitioner and the opposite party no.2 in the year 1990. However, when the petitioner went to opposite party no.2, she came to know that opposite party no.2 had solemnized second marriage. In this background, complaint case was filed by the petitioner under Sections 494/ 498A/420 of Indian Penal Code on 30.03.2006 which was sent for investigation by the police.

7. Opposite party no.2 had filed anticipatory bail application before this Court being A.B.A. No. 1265 of 2006 which was sent for mediation (Annexure 2). Learned counsel for the petitioner has also referred to the mediation report (Annexure – 3) and during the mediation proceeding, certain observations were made and certain calls were made to the quarter of opposite party no.2 where one lady had picked upon the phone and as a result of which, the petitioner refused to live with opposite party no.2. It was further observed in the mediation report as follows:-

“That, they were suggested to find out other way for compromise. The complainant does not want divorce but maintenance at the rate of 45% of his pay month to month and continuation of her name as nominee in his service book. The petitioner accepted the condition.”

8. When aforesaid compromise was placed before this Court, the said anticipatory bail application was disposed of vide order dated 20.11.2006 (Annexure – 4) and it was made clear that if the opposite party no.2 of the present case does not comply with the terms and conditions mentioned in the letter of conciliator, the complainant shall be at liberty to file application for cancellation of bail of the petitioner.

9. The learned counsel submits that subsequently on account of non-payment of amount, the petitioner filed a petition for cancellation of bail which was numbered as Cr.M.P. No.196 of 2008 and the same was disposed of vide order dated 29.01.2010. He has referred to para 8 and 10 of the said order and has submitted that the case was disposed of by directing the Superintendent of Police, Palamau to deduct an amount equivalent to 45% every month from the total salary of the opposite party no.2 from October, 2007 and get it transferred in the S.B. Account of Punjab National Bank of the petitioner minus the amount already paid to the present petitioner. The present petitioner was also directed to furnish her bank account number to the department and once the department starts transferring the maintenance amount in the bank account of the petitioner, she shall abide by the terms and conditions of compromise by not pursuing the criminal case against her husband and learned counsel appearing on behalf of the husband also stated that he would take steps for correcting the name of the petitioner as nominee in his service record.

10. Learned counsel for the petitioner further submits that on account of non-compliance of the order, a contempt case was also filed before this Court being Contempt Case (Civil) No.652 of 2010 which was dismissed on 07.01.2011 by indicating that no deduction can be made by the Superintendent of Police when the salary was already paid. This Court also observed in the said contempt case that learned Single Judge while passing the order dated 29.01.2010 had directed that deduction to be made with effect from October, 2007 without recording any finding that the salary was in arrear since October, 2007, and accordingly, the order passed by the learned Single Judge was inherently incapable of compliance and accordingly, no contempt could arise.

11. Learned counsel for the petitioner submits that in view of the compromise entered into between the parties, the present petitioner did not proceed before the learned court below and was examined as the sole witness before the learned court below. He also submits that it is not in dispute that it has been recorded in the evidence of the sole prosecution witness, the present petitioner, that she had stated about the compromise between her and opposite party no.2. She had also stated in her deposition that opposite party no.2 would be giving 45% of his salary to the petitioner and stated that the said amount was being deposited in her account.

12. Learned counsel submits that during recording of statement made by opposite party no.2 under Section 313 of Cr.P.C before the learned court below, a specific query was put to the opposite party no.2 as to whether the order passed by Hon’ble High Court regarding payment of 45% salary from October, 2007 was given to the petitioner, to which, he had responded that it was not given. Learned counsel submits that this statement of the opposite party no.2 under Section 313 of Cr.P.C indicates that the order regarding payment of 45% of the salary after deducting from the salary of the opposite party no.2 was admittedly not complied by the opposite party no.2 and accordingly, the learned court below ought to have directed for payment of the amount as per the compromise and could not have based its judgment on the evidence of the petitioner.

13. Learned counsel submits that in the aforesaid circumstances, the learned trial court could not have recorded that the only witness i.e., wife was examined and she has deposed that the matter has been patched up and 45% amount of the salary of her husband has been deposited in her account and so she did not want to contest the case. Rather the learned court below ought to have asked the opposite party no.2 to pay the amount as per the compromise as a condition for his acquittal for offence under Sections 494, 498A and 420 of Indian Penal Code. Learned counsel submits that the statement of the opposite party no.2 under Section 313 Cr.P.C was totally ignored by the learned court below while passing the impugned order.

14. Learned counsel has referred to a judgment passed by the Hon’ble Supreme Court in the case of Samsul Haque Vs. State of Assam reported in (2019) 18 SCC 161 para 22 to submit that the statement made under Section 313 Cr.P.C of the accused could have been used against the opposite party no.2. He has also referred to another judgment passed by Hon’ble Supreme Court in the case of Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat decided on 12.01.2021 and has referred to para 20 and 21 of the said judgment, which deals with the approach of the courts in connection with sentencing of the accused. Learned counsel for the petitioner has vehemently submitted that the payment was not made to the petitioner in terms of the compromise.

Argument of the Opposite Party – State

15. Learned counsel appearing on behalf of the opposite party-State, on the other hand, submits that in the present proceedings the legality or otherwise of the impugned judgment of acquittal of the opposite party no.2 is under consideration and the learned trial court has rightly recorded and relied upon the evidence of the sole witness i.e., the present petitioner, who had clearly mentioned about the compromise and had also stated that 45% amount of the salary of her husband was being deposited in her account and so she did not want to contest the case. He submits that once the sole witness had admitted that the amount was being deposited in her account, any contrary statement to this effect, even if it was made by the accused opposite party no.2 in his statement under Section 313 Cr.P.C, could not have been made basis for the conviction of the opposite party no.2 or for passing any adverse order against the opposite party no. 2. He also submits that no joint compromise petition as such was filed before the learned court below, rather the petitioner had proceeded with the trial, given her evidence, mentioned about the compromise, but no evidence was led in connection with the allegations made by her in the complaint petition against the opposite party no.2, though such act/omission of the petitioner was on account of some compromise entered into between the parties.

16. Learned counsel submits that even if the terms of compromise regarding payment of maintenance was not adhered to by opposite party no.2, petitioner has remedy under law, but the same cannot be a ground for interference in the impugned judgment of acquittal or for passing any sentence or otherwise as argued by the learned counsel appearing on behalf of the petitioner.

Arguments of the Opposite Party No.2

17. Learned counsel appearing on behalf of the opposite party no.2 has also supported the submissions made on behalf of the opposite party State.

Findings of this Court

18. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that admittedly a compromise was entered into between the petitioner and opposite party no.2 wherein, it was agreed by the opposite party no.2 that 45% of his salary was to be paid to the petitioner from October, 2007 and this Court had issued a direction to the appropriate authority on 29.01.2010 to make deduction from the salary of the opposite party no.2 right from the month of October, 2007. This Court finds that when this order was not complied, a contempt petition was filed before this Court that deduction from the month of October, 2007 was not made. This Court was of the view that no contempt was made out as the order passed by the learned Single Judge could not have been complied with as the monthly salary from the month of October, 2007 onwards was already paid to the opposite party no.2 and there could not have been any deduction therefrom, and accordingly the contempt proceeding was dropped.

19. This Court further finds that before the learned trial court, the petitioner did not lead any evidence so far as allegations made under Sections 494, 498A and 420 of Indian Penal Code are concerned. Upon perusal of the evidence of the sole prosecution witness i.e., petitioner before the learned court below, it appears that the petitioner was examined as P.W. 1 and she had deposed that the matter has been patched up and 45% of the amount of salary of her husband was being deposited in her account and so she did not want to contest the case. Although there was no adverse evidence against the opposite party no. 2, but he was put for his examination under Section 313 of Cr.P.C. In response to the question, as to whether deduction right from October, 2007 onwards was being made from his salary or not, he had denied. It is an admitted fact that direction to make deduction from the salary of the opposite party no.2 was made on 29.01.2010 and since the salary for the month of October, 2007 was already paid to the opposite party no.2, there was no question of any deduction right from October, 2007 onwards and the contempt case filed for non- compliance of aforesaid order dated 29.01.2010 was dropped. Thus, the opposite party no.2 in his response to the said question under Section 313 of Cr.P.C regarding deduction being made from October, 2007, had replied that such deduction was not being made from his salary.

20. This Court further finds that it is an admitted position that a compromise was entered into regarding payment of 45% of the salary to the petitioner and the petitioner did not lead any evidence before the learned court below with regards to the allegations in the criminal case. It has also been recorded in the impugned judgment of acquittal that the learned defence counsel had also argued that in the light of the compromise and material available on record, the matter was a fit case for acquittal of the opposite party no.2 and accordingly, learned court below had acquitted the opposite party no.2 for alleged offence under Sections 494, 498A and 420 of the Indian Penal Code. Admittedly, no evidence was led to substantiate the alleged offence under Sections 494/498A/420 of Indian Penal Code.

21. This Court is of the view that if the petitioner has any grievance in connection with non-payment of amount arising out of compromise, then she has other remedies available under law, but the statement made by opposite party no.2 under Section 313 of Cr.P.C, by itself, could not have been made a basis for passing any adverse order against the opposite party no.2 on the face of the specific statement made by the petitioner on oath before the learned trial below while examining herself as P.W. 1, the sole prosecution witness examined in the case.

22. This Court is also conscious of the fact that the sole purpose of recording of statement of accused under Section 313 Cr.P.C is to put the prosecution evidence and circumstances before the accused in order to give an opportunity to the accused to admit, deny or explain the same. A statement under Section 313 Cr.P.C is not recorded on oath and is no evidence and accordingly no conviction can be based solely on such statement. In the instant case, admittedly no evidence had come in the prosecution case for the alleged offence and further no evidence had come that the terms of compromise were not being adhered to by the opposite party no.2. Accordingly, the statement of opposite party no.2 which was recorded under Section 313 of Cr.P.C could not have been the sole basis to pass any adverse order against opposite party no.2.

23. Section 313 Cr.P.C. deals with the power of the court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, and as per the mandate of law no oath is administered to the accused when he is examined under sub- section (1) of section 313 Cr.P.C. As per subsection 3 the accused does not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

24. In the judgment relied upon by the petitioner reported in (2019) 18 SCC 161 (Samsul Haque v. State of Assam), it has been held in para 22 as follows:-

22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam. The relevant observations are in the following paragraphs :
“21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.”
The said judgment does not help the petitioner in any manner whatsoever. In the instant case, no evidence has come in the prosecution case against the petitioner and it is the statement of the opposite party no.2 recorded under Section 313 of Cr.P.C which is the sole material sought to be relied upon by the petitioner (complainant-wife) to submit that the terms of compromise were not adhered to. As already held above, no adverse order or conviction or sentence can be passed solely on the basis of the statement of the accused recorded under section 313 of Cr.P.C.

25. So far as other judgment which has been relied upon by the petitioner decided on 12.01.2021 by the Hon’ble Supreme Court in Criminal Appeal No.1919 of 2010 (Anversinh @ Kiransinh Fatersinh Zala Vs. State of Gujarat), the petitioner has relied upon para 20 and 21 of the said judgement which in fact holds that there are many factors, which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing and that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpable capricious award of an unreasonable sentence. It has also been held in the said judgment that it would thus depend upon the facts and circumstances of each case whether a superior court should interfere with, and resultantly enhance or reduce the sentence. This Court finds that the aforesaid judgment has no applicability to the facts and circumstances of the present case as admittedly the opposite party no.2 has been acquitted and the petitioner at the outset has also submitted that the petitioner is not even aggrieved by the acquittal of the opposite party no.2.

26. In view of the aforesaid findings and considering the facts and circumstances of this case, this Court is not inclined to interfere with the impugned judgment of acquittal or modify the impugned judgment in the manner and to the extent which has been prayed for by the petitioner before this Court in this revision petition.

27. Accordingly, this revision application is dismissed.

28. However, it is observed that mere acquittal of the opposite party no.2 by the impugned judgement cannot be an impediment for availing the other remedies, which may be available to the petitioner under law for the purposes of claiming maintenance/ giving effect to the compromise, admittedly entered into between the petitioner and the opposite party no.2.

29. Interim order, if any, stands vacated.

30. Pending interlocutory application, if any, is closed.

31. Let the lower court records be sent back to the court concerned.

32. Let a copy of this order be communicated to the learned court below through E-mail/FAX.

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