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.P. for the State. ig .... 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.::: Downloaded on - 09/06/2013 17:15:52 ::: 2
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.::: Downloaded on - 09/06/2013 17:15:52 ::: 3
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 ::: Downloaded on - 09/06/2013 17:15:52 ::: 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 ::: Downloaded on - 09/06/2013 17:15:52 ::: 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 ::: Downloaded on - 09/06/2013 17:15:52 ::: 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 ::: Downloaded on - 09/06/2013 17:15:52 ::: 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 ::: Downloaded on - 09/06/2013 17:15:52 ::: 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.::: Downloaded on - 09/06/2013 17:15:52 ::: 9
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.::: Downloaded on - 09/06/2013 17:15:53 ::: 10
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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 11 REVN.81-11
6. JT. 2009 (2) SC 358 Eliamma & Anr.
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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 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."::: Downloaded on - 09/06/2013 17:15:53 ::: 14
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.C. and even such plea was not taken in the 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.C., in the opinion of this Court, 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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 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, ::: Downloaded on - 09/06/2013 17:15:53 ::: 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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 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, ::: Downloaded on - 09/06/2013 17:15:53 ::: 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 ::: Downloaded on - 09/06/2013 17:15:53 ::: 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 ::: Downloaded on - 09/06/2013 17:15:53 :::