Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 11 docs - [View All]
The Indian Penal Code, 1860
Section 498A in The Indian Penal Code, 1860
Section 360 in The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973
Section 323 in The Indian Penal Code, 1860

User Queries
Bombay High Court
Rupam Pralhad Bhartiya vs The State Of Maharashtra on 6 May, 2011
Bench: A. R. Joshi

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