Sudha Jha vs The State of Jharkhand and Lal Kishore Jha

D.K. Sinha, J.—The instant Cr. Revision is directed against the judgment of acquittal dated 16.07.2008 recorded by Shri R.B.N. Sahai, Additional Sessions Judge-I, Sahebganj in Cr. Appeal No. 32 of 2006 by which the Opposite Party No. 2 Lal Kishore Jha was acquitted in appeal and thereby reversing and setting aside the judgment of his conviction under Sections 498A/494 I.P.C. and the order of sentence recorded by the S.D.J.M., Sahibganj in G.R. No. 145 of 1992 corresponding to T.R. No. 19 of 2006.

The prosecution story in short was that the father of the petitioner namely Dhanajay Prasad Jha had filed a P.C.R. Case No. 14 of 1992 before the C.J.M., Sahebganj on 16.03.1992 which was referred u/s 156(3) of the Code of Criminal Procedure for investigation and accordingly, Sahebganj P.S. Case No. 54 of 1992 was registered for the alleged offence under Sections 495/498A/341 of the Indian Penal Code. As the father of the petitioner Dhanajay Prasad Jha died during pendency of the proceeding of the case on 06.04.2003, as such, Sudha Jha preferred this Criminal Revision before this Court against the impugned judgment of acquittal of the O.P. No. 2 in Criminal Appeal No. 32 of 2006. The marriage of the petitioner Sudha Jha was solemnized with the O.P. No. 2 Lal Kishore Jha on 07.06.1987 as per Hindu rituals. After some time of their marriage it was alleged that the accused persons demanded Rs. 15,000/- in cash and one Yamaha motorcycle for performing ''Duragaman'' and that as the same could not be given by her father, Sudha Jha was tortured in various manner. It was further alleged that the O.P. No. 2 Lal Kishore Jha came to the house of the complainant on 23.02.1992 and extended threat either to fulfill his demand lest he would marry to another girl. It was alleged that he solemnized second marriage on 05.03.1993 at Bhagalpur in the lifetime of Sudha Jha. The police after investigation submitted charge-sheet against the husband O.P. No. 2 Lal Kishore Jha for the alleged offence under Sections 498A/494 of the Indian Penal Code as also u/s 3/4 of the Dowry Prohibition Act.

Learned Counsel for the petitioner explained that after framing of charge under Sections 498A/494 of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act the prosecution examined 6 witnesses besides, the documentary evidence. However, in the meantime a compromise petition was filed and the petitioner Sudha Jha was examined as P.W.I who did not support the allegation levelled against her husband O.P. No. 2 Lal Kishore Jha in view of the terms of compromise. The said surety bond/ compromise between the parties was marked Ext. 1. The learned Counsel further explained that when the O.P. No. 2 Lal Kishore Jha rescind from his undertaking and surety bond, the petitioner Sudha Jha was again examined u/s 311 Cr.P.C. on 28.09.2004 and at that time she supported the prosecution case as against the Opposite-Party-husband.

Finally, the Trial Court recorded the statement of the accused O.P. No. 2 Lal Kishore Jha u/s 313 of the Code of Criminal Procedure initially on 28.05.2004 and subsequently on 15.06.2005 after further examination of Sudha Jha u/s 311 Code of Criminal Procedure as the Court witness. After hearing the parties the learned S.D.J.M. convicted the accused O.P. No. 2 by the judgment dated 21.07.2006 under Sections 494/498A I.P.C. and sentenced him to undergo rigorous imprisonment for the maximum period of two years in both the counts. Against the said impugned judgment and order the O P. No. 2 preferred a Criminal Appeal No. 32 of 2006 which was allowed on 16.07.2008 in the manner indicated above.

Learned Counsel for the petitioner submitted that the O.P. No. 2 was convicted by the Trial Court under Sections 494/498A of the Indian Penal Code as also u/s 4 of the Dowry Prohibition Act, and was sentenced of imprisonment but the said judgment was reversed in appeal without considering the evidence of Sudha Jha recorded u/s 311 of the Code of Criminal Procedure as the Court witness. As a matter of fact, the Appellate Court solely relied upon the testimony of Sudha Jha which was recorded at the first instance in the backdrop of the sureties/undertaking of the husband O.P. No. 2 herein and in such situation she did not prefer to support the allegations that were made against him. But subsequently when the husband O.P. No. 2 rescind to abide by the terms of compromise and adhere to the social binding to discharge the onerous duty of a husband, the petitioner was again recalled u/s 311 of the Code of Criminal Procedure and at that time she fully supported the allegation levelled in the Complaint Petition against her husband O.P. No. 2. The petition preferred by the petitioner u/s 311 of the Code of Criminal Procedure was entertained by the Court for substantial justice, the learned Counsel added, to protect her from the mischief of the O.P. No. 2. The Trial Court exercised its discretion conferred u/s 311 Cr.P.C. diligently for curing the breach of trust that the petitioner suffered at the hands of her husband O.P. No. 2 and thereby recorded the statement of the petitioner which was the basis of his conviction for the alleged charge. But the Appellate Court reversed the judgment of conviction and order of sentence recorded against the O.P. No. 2 without apprecation of evidence on record and application of judicial mind with the observation,

The other witnesses although supported the prosecution version but the victim of this case Sudha Jha stated nothing with regard to any torture to have been committed on her by her husband, the appellant/accused nor she has supported the fact that any demand of money and motorcycle was made. It is surprising to see the record that after the examination of victim-girl Sudha Jha as P.W. 1 she has been again examined by the trial court under the provision of Section 311 of Cr.P.C. as Court witness No. 1. The court below appears to have committed an error by examining the said witness P.W. 1 as court witness when she has deposed while being examined as P.W. 1 with regard to the entire facts of the prosecution case. Wherein she has clearly stated that the appellant/accused had never tortured her nor he had made any demand of money or motorcycle from her father. She has stated In a very clear word in her deposition while being examined as P.W. 1 that she has entered into compromise with her husband. Under such circumstances examining the said witness P.W. 1 Sudha Jha as court witness No. 1 does not appear to be proper in the legal prospective.

As regards the allegation of second marriage for proving the charge u/s 494 I.P.C. against the appellant/accused it is necessary that there muse be cogent positive and specific evidence on the point of second marriage. Proof of solemnization of second marriage in accordance with essential religions rites is a must. In the instant case I do not find Cogent & positive evidence on the point that the alleged second marriage was solemnized after performing all the religious rites. On the basis of the discussions as made above I find that the finding of the trial court holding the accused guilty for the charge u/s 494/498A I.P.C. and u/s 4 Dowry Prohibition Act is not proper and substantive. Accordingly, the judgment and order passed by the learned trial court holding the accused guilty for the charge u/s 494/498A I.P.C. and u/s 4 Dowry Prohibition Act is hereby set aside and this appeal is allowed.

Heard Mr. Kaushalendra Prasad, learned Counsel appearing on behalf of the O.P. No. 2.

The object underlying Section 311 of the Code of Criminal Procedure is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. Section 311 of the Code is not limited only for the benefit of the accused, and it would not be an improper exercise of the powers of the court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The Section is a general Section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage. It is consistently and equally held that Section 311 of the Code of Criminal Procedure confers a very wide power on the Court of summoning witnesses, but the discretion conferred is to be exercised judiciously, as wider the power, greater is the necessity for application of judicial mind. It was consistently held by the Supreme Court of India in Zahira Habibullah Sheikh and Another Vs. State of Gujarat and Others, ;

The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by tire Court gives evidence against the complainant, he should be allowed an opportunity to cross-examine.

It was further held by the Supreme Court in Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, that the sole consideration for the Court in exercise of jurisdiction u/s 311 of the Code of Criminal Procedure was as to whether the recall of the witness would promote the cause of justice and help the Court to unearth the truth.

In Mohanlal Shamji Soni Vs. Union of India and another, , the Supreme Court of India considered the propriety of recalling a witness and after taking note of many other judgments on the subject, held that it was always open to Courts to summon or examine, to recall or re examine witnesses for evidence if it was essential to the just decision of the case. The Andhra Pradesh High Court in Beagari Pentaiah and Others Vs. State of Andhra Pradesh, after following the above decision held,

Before the Courts exercised their jurisdiction u/s 311 of the Code of Criminal Procedure for calling or summoning a new witness or recalling or examining a witness who has earlier been examined, the Courts have to satisfy themselves for recalling or calling of such a witness is essential to the just decision of the case. Such a satisfaction can only be recorded by the Courts if facts are brought to the notice of the Court suggesting for recalling of a particular witness would be necessary In order to reach to the just decision of the Court.

In the instant case the petitioner Sudha Jha was produced and examined earlier on behalf of the prosecution as P.W. 1 in the instant case and at that time the husband-O.P. No. 2 had already entered into compromise with her, as such, she did not support the allegations as made in the complaint case which was filed by her father which was later on converted into a police case. In her statement she clearly admitted having been entered into compromise with her husband O.P. No. 2 and that she had also put her signature on the surety/compromise which was proved and marked Ext. 1, She testified that she was living at her matrimonial home with her husband though it was alleged that he had already married to another girl. She was declared hostile by the prosecution and in the cross-examination she clearly stated that she had no problem while living with her husband at her matrimonial home. But when the husband-O.P. No. 2 did not adhere to the terms and conditions as contained in the compromise/surely bond, a petition u/s 311 Code of Criminal Procedure was preferred by her finding no alternative, to which the learned S.D.J.M., Sahibganj upon due consideration and with a view to promote the cause of justice allowed the petitioner to depose as Court witness No. 1 and this time she supported the allegations of torture, humiliation and demand of dowry by the O.P. No. 2 from her father. The complainant father died only after her husband O.P. No. 2 solemnized second marriage with another girl. The opportunity was given to the accused O.P. No. 2 and in her cross-examination she stood firm so far allegation against the O.P. No. 2 was concerned. She admitted in the cross-examination that she had earlier deposed in the Court pursuant to the compromise and that a document was also prepared pursuant to such compromise.

Yet, I find that the learned Appellate Court reversed the conviction of the appellant O.P. No. 2 with the observation that the other witnesses though had supported the prosecution version but the victim Sudha Jha had stated nothing with regard to any torture to have been committed on her by her husband-appellant nor she supported the fact that any demand of money or motorcycle was made. I find that though she did not support the allegation of demand of motorcycle as alleged to have been made by her husband-O.P. No. 2 in her earlier statement in the backdrop of the composition of disputes between the parties but in her subsequent examination and cross-examination u/s 311 Code of Criminal Procedure she categorically supported the allegations against the O.P. No. 2, I find that the learned Appellate Court erred by not appreciating the provision of Section 311 Code of Criminal Procedure in its right perspective which confers vast power upon the Trial Court to take keen interest for revelation of truth by promoting the cause of justice as discussed here-in-before.

For the reasons stated above I find that the observation made by the learned Appellate Court by which he reversed the judgment of the Trial Court and acquitted the O.P. No. 2 from the charge u/s 498A/494 I.P.C. as also u/s 4 of the Dowry Prohibition Act cannot be sustained under law. Learned Counsel appearing on behalf of the O.P. No. 2 failed to place convincing argument that the observation and finding of the Appellate Court holds good. On the contrary having been convinced by the argument advanced for and on behalf of the petitioner, I find that the judgment passed in Cr. Appeal No. 32 of 2006 and order recorded therein by acquitting the O.P. No. 2 Lal Kishore Jha from his conviction under said offences needs interference and revision, accordingly, this petition is allowed and the judgment as well as the order passed in Cr. Appeal No. 32 of 2006 is set aside and the judgment of conviction passed by the learned S.D.J.M., Sahibganj and order of sentence recorded against the O.P. No. 2 Lal Kishore Jha in G.R. No. 145 of 1992 corresponding to T.R. No. 19 of 2006 is upheld and and affirmed by this order. The Trial Court is directed to take appropriate steps in accordance with law.

With such observation, this Criminal Revision is allowed.