CRR No.152 of 2017 (OM) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.152 of 2017 (OM)
Date of decision: 05.04.2017
Manoj Kumar
….Petitioner
Versus
Meenakshi and another
….Respondents
CORAM: HON’BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. K.D.S. Hooda, Advocate
for the petitioner.
Mr. S.S. Dinarpur, Advocate
for respondent No.1.
Mr. Pawan Garg, AAG, Haryana.
REKHA MITTAL J.
The present petition directs challenge against consistent
findings recorded by the Courts below whereby the petitioner (husband
of the complainant) has been convicted and sentenced for commission
of offence punishable under Sections 498-A and 323 of the Indian Penal
Code, 1860 (in short ‘IPC‘) and a relevant extract from the order of
sentence reads as follows:-
Sr. Under Sections Imprisonment Fine
No.
1. 498-A IPC Simple imprisonment for Rs.500/-
six months
2. 323 IPC Simple imprisonment for ——
three months
Briefly stated, marriage of complainant was solemnized
with the petitioner on 23.01.2003. As per the allegations, Manoj –
husband, Vinay Kumar, Tej Singh, Beermati and Rajbir arrayed as
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accused harassed and tortured the complainant in connection with
demand of a car but father of the complainant gave Rs.50,000/- when
Manoj and Vinay Kumar came to Hisar. The petitioner filed a divorce
petition wherein he refused to accept the male child born on 07.02.2004
as his own son due to which she suffered mental torture.
On appreciation of evidence adduced by the complainant
both in pre-charge and after charge, the learned trial Court recorded a
finding that allegations of demand of dowry have not been proved but
the petitioner is guilty of offence under Section 498-A IPC as conduct
of the petitioner casting aspersions on character of the complainant
amounts to cruelty. In this regard, the trial Court has recorded its
observations in para 30 of the judgment. Eventually, the petitioner was
convicted and sentenced for offence under Sections 498-A and 323 IPC
vide judgment dated 16.05.2013 by the trial Court.
The appeal preferred by the petitioner did not find favour
with the Additional Sessions Judge, Hisar and the judgment of
conviction and order of sentence were affirmed.
Still feeling dis-satisfied, the matter has been carried in
revision before this Court.
Counsel for the petitioner has put a half-hearted effort to
contend that as the allegations qua demand of dowry raised by the
complainant were not accepted to be correct, the petitioner can not be
held guilty of committing offence punishable under Section 498-A IPC
more particularly in the circumstances that the petitioner has already
filed a petition seeking custody of the child and the same is pending
adjudication. In the alternative, counsel would urge that in case the
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findings recorded by the Courts below with regard to conviction are
affirmed, the petitioner may be released on probation. In addition, it is
argued that the substantive sentence awarded to the petitioner may be
reduced to the period already undergone in case his plea for probation
is not accepted.
Counsel for the respondent, on the contrary, has supported
the judgments passed by the Courts below with the submission that the
Courts below have already taken a very lenient view while awarding
sentence for offence punishable under Section 498-A IPC, therefore, no
intervention, in the given circumstances, is warranted. It is argued that
the petitioner committed grave mental cruelty by assassinating
character of the complainant as he refused to accept male child born out
of the wedlock to be his own and such an allegation was raised by the
petitioner in divorce petition filed by him. According to counsel, the
complainant in the divorce proceedings filed an application for
conducting DNA test for ascertaining paternity of the child on the basis
whereof necessary test was conducted and DNA profile of the child
proved that the child is son of the parties to the divorce petition
(divorce proceedings).
Section 498-A IPC deals with husband or relative of
husband of a woman subjecting her to cruelty. A relevant extract
therefrom is reproduced hereunder for ready reference:-
“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 be3 of 6
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CRR No.152 of 2017 (OM) 4liable 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 to meet such demand.”
Clause (a) of explanation appended to Section 498-A IPC
would evident that any wilful conduct of the husband or a relative of
husband which is likely to derive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman amounts to cruelty for the purpose of Section
498-A.
In the case at hand, the petitioner refused to own the child
born to the complainant/respondent by raising specific allegations in
the petition for divorce that amounts to cruelty as defined in Clause (a)
of explanation to Section 498-A IPC. In this view of the matter, I do not
find any patent error much less illegality to differ with the consistent
findings in exercise of limited revisional jurisdiction.
This brings the Court to plea of the petitioner on the
question of sentence. The petitioner raised allegations assassinating
character of his wife. By denying the child to be his own, he not only
caused cruelty to his wife but also to the child who would know about
his father only through his mother. This apart, the petitioner is a teacher
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and his pupils would be looking forward to learn many good things
including values and ethics from him. In the given scenario, he is not
entitled to benefit of probation.
The appeal was decided by the First Appellate Court on
12.01.2017 and since then petitioner is in custody for the past about 03
months. The marriage of the parties was performed in the year 2003 and
the criminal proceedings were initiated in the year 2004. The petitioner
along with co-accused appeared before the trial Court and were
released on bail on 16.12.2005. Besides the petitioner, his adopted
parents namely Tej Singh and Beermati and his real brother – Vinay
Kumar faced the agony of trial for about 08 years. The allegations
raised by the complainant with regard to demand of dowry and
harassment in connection thereof at the behest of the petitioner and his
family members were found to be false and consequently other accused
were acquitted of the offence charged against them whereas the
petitioner is the only one convicted and sentenced for offence under
Section 498-A IPC. The appeal preferred by the petitioner in the year
2013 culminated in the judgment passed in January, 2017. The
petitioner has faced pangs of criminal trial for the past more than 11
years.
Examined from another angle, even if the petitioner
remains in custody for completing the remaining sentence of 03
months, it would be of no use for the complainant. On the other hand,
the petitioner can be directed to pay some amount towards
compensation to the complainant.
Taking a cumulative view of the facts and circumstances
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discussed hereinbefore, in my considered opinion, interest of justice
would be served if the substantive sentence awarded to the petitioner is
reduced to the period already undergone subject, however, to the
condition that he deposits an amount of Rs.50,000/- with the Chief
Judicial Magistrate, Hisar within a period of one month. In case the
petitioner deposits the amount within the stipulated period, the same
shall be released to the complainant. Failure of the petitioner to deposit
the amount within the stipulated period would entail dismissal of the
petition.
Disposed of accordingly.
(REKHA MITTAL)
JUDGE
05.04.2017
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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