1
REVN.81-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.81 OF 2011
Rupam Pralhad Bhartiya. ..Applicant Versus
The State of Maharashtra
and another. ..Respondents.
....
Mr.Niteen V . Pradhan a/w. Ms.S.D. Khot & Ms.Ameeta Kuttikrishnan, Advocates for the Applicant.
Mr.Aabad H. Ponda, Advocate appointed as amicus curiae. Mr.J.P. Kharge, A.P . for the State.
.P
....
CORAM : A. R. JOSHI, J.
DATE OF RESERVING
THE ORDER: 26th APRIL, 2011
DATE OF PRONOUNCING
THE ORDER: 06th MAY, 2011
P.C.:
1. Heard rival submissions at length. Also heard learned
Advocate Shri Aabad Ponda who was appointed as an amicus curiae
to assist the Court considering the technicalities in the matter.
Perused the various documents annexed to the present Revision
Application including the notes of evidence as to the substantive
evidence of of nine prosecution witnesses examined before the
J.M.F.C. Thane.
2
REVN.81-11
2. Vide order dt. 10.4.2008 the J.M.F.C. at Thane convicted the
present applicant-husband for the offences punishable under
Sections 498-A and 323 of Indian Penal Code and was sentenced to
suffer RI for one year and to pay fine of Rs.10,000/-, in default, to
undergo SI for three months for the offence punishable under
Section 498-A IPC. The applicant/accused was sentenced to suffer
RI for three months for the offence punishable under Section 323 of
IPC. He was acquitted of the offence punishable under Section 504
of IPC. The said judgment and order of conviction dated 10th April,
2008 passed by the J.M.F.C., Thane was challenged by the accused/
husband before the Sessions Court, Thane vide Criminal Appeal
No.82 of 2008. Said appeal was finally heard and disposed of by
order dated 14.1.2011 by the Additional Sessions Judge, Thane.
The appeal was partly allowed. Conviction under Section 323 of
IPC was quashed and set aside, however, the conviction and
sentence for the offence punishable under Section 498-A was
maintained. Being aggrieved by the said judgment and order in
Criminal Appeal No.82 of 2008, present Criminal Revision
Application was preferred before this Court. 3
REVN.81-11
3. The case of original complainant, as transpired from her FIR
and as per the substantive evidence before the trial Court, can be
narrated in nutshell as under :-
Present applicant/accused got married with one Saloni,
present respondent No.2, sometime in July, 2002. After marriage
the couple started residing with the parents of the present
applicant, where sister-in-law of the applicant was also staying. In
the year 2003, one female child was born out of the wedlock.
Initially, respondent No.2/wife was treated well. However,
subsequently present applicant/accused started ill-treating her on
account of no proper gift articles were given to him at the time of
marriage. Allegedly, the applicant stopped sending his
wife/respondent No.2 to her parent's house for stay. A meeting was
called at the residence of the father-in-law of the applicant and
Stridhan ornaments and cash of Rs.60,000/- belonging to the
complainant/wife were kept in the bank locker in the name of the
respondent/complainant as there was a demand from the present
applicant and his father for taking back said Stridhan. Quarrel
between the couple continued mainly on the cause that the 4
REVN.81-11
applicant/husband was doubting the character of the
respondent/his wife, and in fact was not allowing her to meet her
relatives or to go out. Specifically the applicant was alleging that
respondent No.2/his wife had illicit relations with the husband of
sister of respondent No.2 i.e. her brother-in-law. In between, there
was some amicable settlement talk and the couple was residing
separately at Vijay Nagari in a rented premises. However, still the
applicant was asking for the ornaments and cash and was abusing
respondent No.2 and again doubting her character. About two
months prior to lodging the complaint, the applicant was not
bringing the usual household articles and was giving very meager
amount to meet the household expenses and as such respondent
No.2/wife had taken some job. When respondent No.2 used to
attend her job, there also the applicant used to make her telephone
calls and used to abuse her. Sometime in July, 2005 father of
respondent No.2 had been to her house. However, the applicant
behaved with him rudely and as such he had to stay in the house of
his another daughter. Thereafter in July, 2005 the complainant
went to the house of her sister for stay as it was impossible for her
to reside in the matrimonial house due to mental torture as to 5
REVN.81-11
petitioner suspecting her character. Somewhere on 18.7.2005 she
lodged a complaint with Kapurbawadi police station, Thane for
taking action against the applicant for the offences punishable
under Sections 498-A, 323, 504 of IPC. Present applicant came to
be arrested and was subsequently released on bail. After filing of
the chargesheet, the matter was taken before the concerned
J.M.F.C. Court and an order was passed by J.M.F.C., 2nd Court,
Thane dated 10th April, 2008 which was subsequently taken before
the Additional Sessions Judge in Criminal Appeal No.82 of 2008
and ultimately the impugned order dated 14.1.2011 was passed.
Said order is mentioned in detail earlier, as to acquittal of the
applicant for the offence punishable under Section 323 of IPC,
however, his conviction maintained for the offence punishable
under Section 498-A of IPC.
4. This Court has carefully gone through the reasoning given
by both the trial Court and the first Appellate Court. During the
arguments, learned Counsel Shri Nitin Pradhan raised the main
contention that whether the conviction of the present applicant for
the offence punishable under Section 498-A of IPC can sustain in 6
REVN.81-11
view of his acquittal under Section 323 of IPC. For this purpose,
attention of this Court is drawn towards Section 498-A of IPC which
reads as under :
"498A. 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 purpose 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 meet such demand."
5. It is submitted on behalf of the applicant that definitely the
material available on record by way of substantive evidence of
prosecution witnesses and mainly the evidence of respondent No.2
and her other relatives i.e. her father (PW-5), her sister (PW-3),
husband of her sister (PW-2), it is apparent that there was no 7
REVN.81-11
cruelty practiced by way of demand of any dowry. It is further
submitted on behalf of the applicant that if this position is accepted
then in the absence of conviction for the offence punishable under
Section 323 of IPC, the provisions of Section 498-A so far as cruelty
practiced against the wife, cannot be attracted. In other words, it is
submitted that there was no cruelty as contemplated by Section
498-A on the wife and as such there cannot be any conviction for
the offence punishable under Section 498-A of IPC.
6. It must be stated that the aspect as to mental cruelty as
contemplated by Section 498-A of IPC has been overlooked while
arguing the above points on behalf of the applicant. On this aspect,
able assistance is given by the learned Counsel appointed as amicus
curiae and it is submitted that even though there is acquittal for the
offence punishable under Section 323 of IPC, still the aspect of
mental cruelty remains to be appreciated and in the given facts of
the present case, considering the substantive evidence of
complainant/wife (PW-1), evidence of PW-2 husband of sister of
the complainant, and in fact the answers given by the applicant
during recording of his statement under Section 313 of Cr.P.C., it is 8
REVN.81-11
amply established position that the applicant-husband was
entertaining suspicion that his wife / respondent No.2 had illicit
relations with PW-2 (her brother-in-law). This aspect has been dealt
with appropriately by the trial Court and it is found that there was
no any palpable evidence even by way of preponderance of
probabilities given by the applicant for entertaining such suspicion
on the character of his wife. This second aspect is required to be
considered while deciding the present Revision Application, more
so when from the substantive evidence of PW-2 brother-in-law of
the complainant/respondent No.2 which establishes the factual
position that said PW-2 was maintaining relations with respondent
No.2 as father and daughter inasmuch as at the time of his
marriage the complainant was only 6 years old. Moreover, such
relations were categorically denied by PW-3 sister of respondent
No.2. In fact, during cross examination of these witnesses, there
was such blatant suggestion given that respondent No.2 had illicit
relations with PW-2 - her brother-in-law. At the cost of repetition, it
must be mentioned that there was no any basis for imputing such
reckless allegations against his own wife by the applicant. 9
REVN.81-11
7. In view of such evidence by the prosecution witnesses and
the allegations made against the character of respondent No.2,
definitely it is a case in which there was a mental cruelty practiced
on respondent No.2 by the applicant and in that view of the matter,
needless to mention that the conduct of the applicant comes within
the mischief of Section 498-A of IPC so far as the mental cruelty
practiced.
8. In view of the above, in the opinion of this Court, there is
nothing to entertain the arguments advanced on behalf of the
applicant as to non-application of provisions of Section 498-A of
IPC. Now this leads to discussing the other arguments advanced on
behalf of the applicant. Such another argument is admittedly taken
at very belated stage, in the midst of the argument by way of filing
additional grounds for taking recourse to the provisions of Section
360 of Cr.P.C.. It is vehemently submitted on behalf of the applicant
that recourse to Sections 360 & 361 of Cr.P.C. was must to be taken
by the trial Court and if at all the benefit under Section 360 of
Cr.P.C. was not to be given to the applicant/accused, it was must for
the trial Court to give reasoning to that effect. 10
REVN.81-11
9. When the factual position is clear as to no such reasoning is
given by the trial Court while convicting the applicant for the
offences charged and while not taking recourse to Section 360 of
Cr.P.C.. Even no such reasonings are given by the Sessions Court
while partly allowing the appeal of the applicant. In support of this
submission, various authorities are cited before this Court as
under :-
1. (1997) 3 SCC 287
Mohammed Giasuddin
Vs.
State of Andhra Pradesh.
2. (1979) 3 SCC 714
Bishnu Deo Shaw
Vs.
State of West Bengal
3. 1992 Mh.L.J. 1425
Rajesh Anantram Thakur
Vs.
State of Maharashtra
4. 1993 Cr.L.J. 119 (M.P.)
Prakash
Vs.
State of Madhya Pradesh
5. (2000) 9 SCC 245
Chandreshwar Sharma
Vs.
State of Bihar
11
REVN.81-11
6. JT. 2009 (2) SC 358
Eliamma & Anr.
Vs.
State of Karnataka.
10. The observations of the Apex Court in Bishnu Deo Shaw
Vs. State of West Bengal (supra) can be reproduced with advantage,
which are taken shelter of on behalf of the applicant. Said
observations as contained in para-26 in the said authority are as
under :
"26. Apart from Section 354(3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty-one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty-one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act or any 12
REVN.81-11
other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors."
11. Needless to mention that whether or not recourse to
Section 360 of Cr.P.C. is to be taken by the trial Court depends on
the particular facts and circumstances of the case. Again on this 13
REVN.81-11
aspect, the learned Advocate appointed as amicus curiae has
assisted the Court on the legal proposition as to whether non
compliance of Sections 360 & 361 of Cr.P.C. would be so fatal to
throw away the entire conviction. On this aspect, provisions of
Section 465 of Cr.P.C. are taken shelter of by learned Advocate Shri
Aabad Ponda appointed as amicus curiae. Said provision is as
under:-
"465. Finding or sentence when reversible by reason of error, omission or irregularity.--- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
14
REVN.81-11
12. It is canvassed by learned Advocate Shri Ponda that
nowhere it is agitated by the applicant as to taking recourse to
Section 360 of Cr.P and even such plea was not taken in the .C.
present criminal revision application before this Court and only at
the fag end of the arguments, such additional ground is raised by
way of supplementary pleading. In that view of the matter, further
argued that though it may amount to an irregularity, it cannot be
treated as such a defect so as to nullify the conviction of the
applicant for the offence punishable under Section 498-A of IPC.
13. Considering the rival submissions and considering that
such additional ground is raised at very belated stage, of taking
recourse to Section 360 of Cr.P in the opinion of this Court, .C.,
considering the conduct of the applicant in imputing wild
allegations against his wife of having illicit relations with her own
brother-in-law, and admittedly such brother-in-law of the age of
father of such woman, it would not be in the fitness of the situation
to suspend the conviction as contemplated by Section 360 of Cr.P.C.
and to release him on the bond of good conduct. In the opinion of
this Court, such relief, if given in favour of the present applicant, it 15
REVN.81-11
would be rather misplaced sympathy. In that view of the matter,
even at this stage of revision, this Court is not inclined to give such
benefit of taking recourse to Section 360 of Cr.P.C. in favour of the
applicant.
14. Now, coming to the last argument which was alternatively
canvassed on behalf of the applicant, it is to be seen whether under
the given circumstances of the case whether the applicant is
required to be sent behind the bars for one year for the mental
cruelty practiced on his wife by way of imputing wild allegations of
inchastity or whether the substantive sentence can be reduced by
enhancing the fine amount to such an extent so as to compensate
the aggrieved woman (his wife) by way of directions to pay certain
amount as compensation out of the enhanced fine amount to be
inflicted upon the applicant.
15. On careful consideration of this last argument, in the
opinion of this Court sending the applicant behind the bars for one
year to serve the sentence as inflicted by the trial Court and
confirmed by the first Appellate Court, would not sub-serve the
purpose considering the sentencing policy. On the contrary, 16
REVN.81-11
inflicting more fine on the applicant and giving adequate
compensation to his wife / respondent No.2 would at least give
some monetary solace to her. On this aspect, it is not lost sight of
the fact that the mental torture which is caused by the applicant by
imputing wild allegations against his own wife without any basis as
to her inchastity, may not be adequately compensated in terms of
money, but, still otherwise whether it may be so compensated by
sending the present applicant behind the bars for one year, would
also be a question to ponder.
16. On the above aspect reference can be made with advantage
to the observations of the Law Commission of India (in its 47th
Report). Said observations are taken from the decision of the Apex
Court in Mohammed Giasuddin Vs. State of Andhra Pradesh
(supra), as under :
"A proper sentence is a composite of many factors, including the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition 17
REVN.81-11
of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved."
17. Again the following observations can be mentioned with
advantage which are appearing in the same decision of the Apex
Court mentioned above. In fact, these observations were taken help
of in the said decision. However, they were discussed by the Apex
Court in another matter of Santa Singh Vs. State of Punjab,
(1976) 4 SCC 190. Said observations are as under :-
"A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental conditions of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, 18
REVN.81-11
for such a deterrent in respect to the particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence."
18. Considering the above observations and bearing in mind
the offence proved against the present applicant, in the opinion of
this Court, sentence of imprisonment of one year for the offence
punishable under Section 498-A of IPC under the peculiar facts and
circumstances of the present case would be too harsh, instead
reducing the said sentence suitably by enhancing the quantum of
the fine would subserve the purpose and by that way the
respondent / wife can be compensated in terms of money.
19. In that view of the matter, considering the overall
circumstances, in the opinion of this Court, following order would
meet the ends of justice and hence present Criminal Revision
Application is accordingly disposed of with following order :-
:: O R D E R ::
[i] The conviction of the applicant/accused for the offence
punishable under Section 498-A of IPC is maintained. However, the
sentence part is altered to the following effect. Instead of 19
REVN.81-11
sentencing the applicant for one year, he is now sentenced for
imprisonment of one day till rising of the Court and the quantum of
fine is increased from Rs.10,000/- to Rs.1,00,000/- (Rs.One Lakh
Only). In default of payment of said entire fine, the applicant shall
undergo an imprisonment for a period of six months. If entire fine
amount is recovered, an amount of Rs.90,000/- (Rs.Ninty
Thousand Only) would be given to the present respondent
No.2/wife by way of compensation.
[ii] Criminal Revision Application is accordingly disposed of.
[iii] The Court expresses a word of gratitude for the able
assistance of Mr.Aabad H. Ponda, as amicus curiae.
(A. R. JOSHI, J.)
PPD