HIGH COURT OF JUDICATURE AT ALLAHABAD

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Reserved

AFR

In Chamber

Case :- CRIMINAL REVISION No. – 1020 of 2007

Revisionist :- Umakant Dubey

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Mayank Bhushan

Counsel for Opposite Party :- Government Advocate

Hon’ble J.J. Munir,J.

This criminal revision is by a husband, who has been convicted for an offence, punishable under Section 498A, 323 I.P.C. on a prosecution instituted by the State, where the wife is the first informant.

Before setting out facts leading to the conviction and sentence now under challenge, it is imperative to point out that a first information was laid against the revisionist, Umakant Dubey (hereinafter referred to as the ‘husband’) by his wife, Smt. Lalita Devi through a written information dated 10.8.1996 along with four other family members, to wit, Shivkant Dubey (husband’s brother), Smt. Vidya Devi (mother-in-law), Smt. Rooprani (sister-in-law, nanad) and Kumari Rekha (sister-in-law, nanad), reporting all of them for offence punishable under Section 498-A, 323, 504, 506 I.P.C. The learned Magistrate, who tried each of the five accused arraigned convicted them all for offence punishable under Section 498A, 323 I.P.C. but acquitting them of the offence punishable under Section 504 and 506 I.P.C. by her judgment and order dated 9.5.2005.

Each of the convicts, including the revisionist, were sentenced to suffer for the offence punishable under Section 323 IPC simple imprisonment to a term of six months and for the offence punishable under Section 498A IPC, they were awarded

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simple imprisonment for a term of one year. In addition, on the second count the Magistrate imposed on each of the convicts a fine of Rs. 500/- with a direction that in case of default they would suffer, an additional period of one month incarceration. All sentences were directed to run concurrently.

On the aforesaid judgment being appealed to the Sessions Judge by each of the five convicts through Criminal Appeal No. 26 of 2005, the Additional Sessions Judge, Court No. 4, Kanpur Dehat, before whom, the appeal came up for determination, proceeded to acquit four of the five convicted persons but upheld the conviction and sentence vis-a-vis the husband by his judgment and order dated 17.3.2007. Thus the revisionist stands convicted by both the courts below and has now come up in revision to this Court, challenging his conviction and sentence.

I have heard Shri Mayank Bhushan, learned counsel for the revisionist and Shri Azhar Ahmad, learned Additional Government Advocate for the State and perused the record summoned from the courts below, where the impugned conviction was made.

The prosecution case in brief as set forth in the first information is to the effect that the first informant, Lalita Devi (hereinafter referred to as the ‘wife’) handed over a written information dated 10.8.1996 to the S.H.O., P.S. Shivli, Kanpur Dehat, scribed by one Sanjay Kumar Shukla R/o Village-Shivli Azad Nagar, Ward No. 6, Shivli, Kanpur Dehat, at her instance. As per information aforesaid, the marriage was solemnized between the husband and the wife on 7.5.1993 according to Hindu rites; that her father had given away necessary valuables at the time of marriage to her.

Soon after marriage, the husband (Umakant Dubey), brother-in-law (Shivkant), younger sister-in-law (Rekha), mother-in-law

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(Vidya Devi) and the elder sister-in-law (Smt. Rooprani), who is now married and on the date of the information was allegedly staying with her parental family for the one year past, have been constantly indulging in beating up the wife for the sake of demand of dowry including an LML Scooter with a threat that in case, the demand was not met, the wife could be done to death; that on 4.8.1996, which was a Sunday, all the accused summoned her father and pressed their demand for a scooter to be given to her husband, whereupon her father declined to do so as he did not have the requisite wherewithal; that thereupon they confined her father in the house and tortured him threatening him with death but her father somehow made good his escape; that soon thereafter all the accused beat up the wife telling her that she would have to make her father pay for the scooter or else sign blank papers; that upon refusal to do so by the wife, her husband and mother-in-law beat her and made her sign blank papers; that on 8.8.1996, at about 6:00 o’clock, the husband asked her to accompany him to Kanpur and upon her refusal to do so, he beat her up and forced her to proceed to Kanpur, on a bicycle.

As the bicycle approached the canal (described in vernacular as ‘nahar’), the husband attempted to push the wife into it; that this led the wife to shout for help, when seeing a tempo on the Chaubepur road, the husband deserted her there and escaped; that thereupon the wife boarded the tempo and came back home to her father fearing for her life and property.

Eschewing a detailed narration of proceedings before the Magistrate, all that needs to be mentioned is that the prosecution examined four witnesses, where the wife deposed as P.W. 1, her father, Shiv Prakash Shukla as P.W. 2, Dr. N.M. Khan in support of the medical report as P.W. 3 and Sanjay Shukla as P.W. 4, who is the scribe of the FIR and later turned out to be the wife’s brother though

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initially projected as a stranger. A statement under Section 313 Cr.P.C., like the other accused, was recorded as narrated in the Magistrate’s judgment. No defence was entered.

There is common evidence appearing against all the accused except the incident attributed to the revisionist attempting to push the wife into a canal while on way to Kanpur from the native village riding his bicycle and deserting her there on the approach of a tempo, which she boarded to ride back home to her parents.

The Magistrate, on this common evidence, had convicted all the five accused and sentenced them in the manner indicated herein before but the Sessions Judge found on common evidence, no case proven by the prosecution against the four family members of the husband convicted alongside by the Magistrate and acquitted them. However, learned Sessions Judge has proceeded to distinguish and discerned evidence appearing against the husband to hold him guilty of offences under Section 498A and 323 IPC. He has done so primarily on evidence of the incident that allegedly occured while the wife accompanied the husband from the native village to Kanpur riding his bicycle. The learned Magistrate has distinguished the role of the husband and convicted him by recording two findings that go to say that the husband tortured her for dowry and that he had done so alone. In the second place that he beat her up and on 8.8.1996, after beating her up made her ride his bicycle to Kanpur where on way, he attempted to push her into a canal.

Shri Azhar Ahmad, learned A.G.A. has urged that this Court has a very limited jurisdiction in a revision where evidence that has been appreciated by the courts below in the right perspective, cannot be re-appreciated. A similar contention as the one here and is not unusual was addressed before the Himachal Pradesh High Court in Sonu Chaudhari vs. State of Himachal Pradesh, 2011 (24) RCR

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(Crl) 742. The contention was repelled in principle in paragraph-6 of the judgment and evidence that was approached from a completely wrongly perspective was revisited. Paragraph Nos. 6, 7 and 8 of the judgment are set out below:

6. The revisional jurisdiction under Section 397Cr.P.C. Emplowers the court to satisfy itself as to the “correctness, legality or prosperity of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”. In order to undertake such an exercise the evidence is necessarily required to be looked into and evaluated to adjudge the correctness, legality or propriety of any finding, sentence or order under challenge. I proceed to appreciate the respective contentions on behalf of the parties against this backdrop.

7. The accident is admitted. The only controversy between the parties is as to whether who was responsible for the same. Whereas, according to the prosecution, the fault lies with the accused, the latter has pleaded that he was innocent and instead PW-1 Deep Kumar was himself at fault, as he had struck the motorcycle against the van, which he was reversing in normal speed on his own correct side of the road. True it is that the evidence cannot be scanned by this court in exercise of its revisional jurisdiction to arrive at a conclusion different to that of the learned courts below, yet three aspects of the matter emerging out of the record cannot be lightly over looked, as the same go to the very root of the case. Firstly, it is admitted by PW-1 Deep Kumar that the van was being reversed. At that time the motorcycle was about two meters behind that van. Thus, it is apparent that he had seen the van being reversed and in the absence of any allegation that there were other vehicles on the road at that

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time, the motorcycle rider could have very well stopped the motorcycle by applying brakes or could have avoided the van, which was being reversed and thus accident itself could h ave been avoided. In this regard, another aspect which assumes significance is that no skid marks were found by the Investigating Officer on the spot, meaning thereby that brakes were not applied by the motorcycle.

8. Secondly, PW-1 Deep Kumar has also admitted that it was a newly purchased motorcycle and he was not having driving licence. This aspect can also not be lightly over looked for the reason that a person who was not holding even a learner’s licence, was driving the motorcycle on a busy highway and that too along with a pillion rider without taking requisite precaution to avoid any accident.

Likewise, the Madras High Court in Benedict Balanathan Mahendran alias Bala Mahendran and another vs. the State, 1996 CRI.L.J. (2619) repelled a contention in paragraph No.16 of the report, which reads as follows:

16. While stating so, I am fully conscious of the fact that while exercising the revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure Re-appraising of the oral and documentary evidence, before the trial court is neither conducive nor an acceptable procedure as settled by law now. But, however, I may observe that the Courts below have considered the evidence, both oral and documentary, not in accordance with the proper legal perspective but misconstrued it wholly and totally, resulting in the failure of justice against the accused who stood charged for the criminal offences. I am constrained to say that such circumstances factually provide every ground for this Court

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to intervene in this revision by virtue of the above sections of law. If any misconception of misappreciation of the facts on the basis of the evidence, by the trial Court or the Appellate Court goes to the root of the very controversy, in my considered view, it is also a total illegality would result always in the failure of justice of the mis-carriage of justice. If the above said facts are identified, then this Court can interfere even with the concurrent finding based on the total misconception and misconstruing of the entire evidence adduced. Therefore, I feel that I am fully justified in re-appraising the whole evidence as above referred.

A similar contention was dealt with by the Orissa High Court in Sania Jani vs. State, 2004 (CRI.L.J.) 226. Paragraph Nos. 10, 11 and 12 of the report in Re-Sania Jani (supra) reads as follows:

10. A Court of revision is concerned not only with the legality of the proceeding before the lower Court, but also with the propriety of the order passed under the particular circumstances of the case and in exercise of revisional jurisdiction, Court can interfere with the findings if the same are contrary to the materials available on record and are otherwise perverse. A reference to the evidence of the lady doctor P.W. 8 stating her opinion, in the case, as quoted hereinbelow, would clearly reveal that the findings of the Court below cannot be accepted without a pinch of salt:-

“..(i) She is capable of sexual intercourse;

(ii) as per physical examination, dental examination and by her own version and appearance the age of the victim is about 35 years approximately;

(iii) hymen present as carunaculae triformes;

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(iv) the findings are not compatible to recent sexual intercourse, however it can not be excluded;

(v) No marks of violence present on her private part, breasts, backside or any other part of the body;

(vi) No foreign hair, seminal stains, saliva stains present on the victim;

(vii) Spermatozoa not detected…………………..”

11. The aforesaid facts and circumstances create suspicion as to the veracity of the prosecution evidence. The defence examined one witness as D.W.1 who supported its plea and has stated about the prior enmity between the family of the petitioner and that of the prosecutrix. P.Ws. 1 and 4 have also admitted about such prior enmity. Law is well settled that enmity is a double-edged weapon.

12. In view of the aforesaid facts and circumstances, particularly the medical evidence and chemical examination report, I am satisfied that prosecution has not been able to bring home the charge against the petitioner. Accordingly, I have no hesitation to hold that the petitioner is entitled to benefit of doubt.

This Court may also depend with profit upon the decision of the Rajasthan High Court in KanaRam vs. State of Rajasthan, 2002 CRI.L.J. 1867. In this case, the issue was dealt with by the Court in paragraph Nos. 18, 19 and 20 of the report, which reads thus:

18. The Court is aware that revisional jurisdiction of this Court should be exercised in exceptional cases only when there is some glaring defect in the procedure or a manifest error on the point of law resulting in miscarriage of justice. But it is not possible to lay down the criteria for determining such

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exercise. The High Court does not ordinarily review the evidence in criminal revision against conviction by both the courts below unless there is some glaring irregularity or serious illegality committed by both the Courts below in reading the evidence.

19. As stated that above, in the present case both the Courts below committed irregularity and illegality in reaching to the conclusion that the accused petitioner committed the offence charged against him as there is no evidence to prove the fact that the complainant who has not come forward in witness-box was the tenant of the accused petitioner and further more all the independent witness have not support the case of the prosecution and further more, PW 6 Ajij Khan has nowhere stated that he was instrument in renting out the shop to the complainant and further in absence of rent note and rent receipts, the case of the prosecution that the complainant was tenant cannot be said to be proved. Further when the possession of the room in question remained with the accused petitioner, the whole case of the prosecution comes to an end. In these circumstances, the findings of conviction against the accused petitioner suffers from basic irregularity and illegality and thus this Court in the above circumstances is interfering in the findings recorded by the Courts below against the accused petitioner.

20. In criminal revision, the High Court can interfere erroneous finding recorded by the courts below when they have convicted the accused petitioner on no evidence or misread the evidence. The present case is a case of no evidence and misreading of evidence.

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The learned Sessions Judge, while evaluating the medical evidence, has ruled out the wife’s story of being beaten up by all the accused and yet on the basis of the same medico legal evidence, besides the statement of the wife, has accepted the case of assault suffered by the wife at the hands of the husband. There is no good reason for the learned Sessions Judge to believe the story of assault inasmuch as the evidence of P.W. 3, Dr. Khan, who proved the medico legal report is to the effect that the wife suffered no injury and there is no injury to her body noticed by the doctor in his report except that there was a complaint of pain to her chest and back. The medico legal evidence, therefore, does not show any injury to the wife as a result of assault by any one including the husband and the finding of assault against the husband is, therefore, based on no evidence. The said finding is perverse.

The view of learned Sessions Judge in distinguishing the husband’s role as said hereinbefore, is based on the alleged incident dated 8.8.1996. There is absolutely no evidence except for the words of the wife that the husband attempted to push her into the canal while riding with him on his bicycle en route to Kanpur from their native village.

In fact, there is no evidence forthcoming besides wife’s word to show that she ever accompanied the husband on a bicycle to Kanpur. She has alleged that she rode back home on a tempo after a failed attempt by her husband to push her into a canal but no person who allegedly helped her, has been produced to establish that fact. Thus the entire episode dated 8.8.1996, on the basis of which, the husband has been distinguished for conviction from the other family members acquitted by learned Sessions Judge, is based on no evidence; rather it is a figment of imagination of the wife. The evidence as a whole, appearing against the husband is not at all different from that appearing the other co-accused. The

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learned Sessions Judge’s finding is not based on a plausible view of

the evidence on record.

In the opinion of this Court, the learned Sessions Judge has culled out a differential role for the husband based on no evidence and in any case on evidence no different from those acquitted.

Learned A.G.A. seeks to support the order impugned on basis that the fact that the revisionist is the husband, while the other co-accused have varying relationships to the wife renders his case liable to be differentially evaluated on the same evidence. I have given my thoughtful consideration to the above submission and also the point made by the learned counsel for the revisionist discussed earlier.

A reading of the entire evidence does not establish any tangible material either of a dowry demand or assault suffered by the wife; in any case, there is no different evidence despite the episode alleged to have been taken place on 8.8.1996 that may lend the husband’s case to a different treatment from the other accused. There is absolutely no evidence either of dowry demand by the husband or assault so as to establish the prosecution case against him on either of the two grounds.

This Court finds that there is no evidence whatsoever on which the learned Sessions Judge could have proceeded to convict the husband for the offence, punishable under Sections 498-A, 323 IPC. The husband’s case here is in no way different from that of the acquitted persons. The impugned judgment is, therefore, not sustainable and deserves to be set aside.

In the result, this revision succeeds and is allowed.

The judgment and order dated 17.3.2007, passed by the learned Additional Sessions Judge, Court No. 4, Kanpur Dehat,

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passed in Criminal Appeal No. 26 of 2005 (Umakant Dubey vs. State of UP) convicting the revisionist and sentencing him for offences,

punishable under Sections 498A, 323 IPC, is hereby set aside and the revisionist stands acquitted of the charges.

The revisionist is on bail. He need not surrender. His bail bonds are cancelled and sureties stand discharged.

Order Date :- 13.12.2017

LN Tripathi