OM PRAKASH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS revision is directed against the judgment dated 20.11.2000, passed in Cr. Appeal No. 4 of 1999, by the learned Sessions Judge, Kaimur at Bhabhua, whereby the Appellate Court upheld the judgment passed by the Trial Court on 18.6.1999 in G.R. No. 609 of 1989/T.R. No. 426 of 1999. The revisionist along with his parents and other relations were charged for the offences Under Section 3/4 of the Dowry Prohibition Act as also Under Sections 494/34; 498-A, 494/109 of the Indian Penal Code. However, the Trial Court acquitted all the accused persons except of the case for the offence Under Section 494 /109 of the Indian Penal Code, Section 498, Section 494/34 as also Under Section 3/4 of the Dowry Prohibition Act. The revisionist alone was convicted Under Section 498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine he was further sentenced to undergo S,I. for three months.

(2.) IT has been submitted by the revisionists lawyer that initially the case depended on the FIR lodged by the informant (P.W. 5) where she had alleged that after she was sent to her Sasural in Gauna, a demand of motorcycle from her Sasural people was made and on account of non-fulfilment of this demand, she wa occasionally subjected to assault by all her family members including her husband and ultimately on 20.5.1989 she was driven out from her Sasural. When her father along with some intervenors went, to the Sasural for rapprochement they were also driven away. This was the initial case and all the accused along with revisionist were charged for committing the alleged assault for non-fulfilment of the demand of motorcycle between 1st January, 1984 and 15.7.1989 at village Akhlaspur. The informant (P.W. 5), however, developed a story in her evidence that she was used to live sometimes at Akhlaspur and sometimes at Bhabhua, where her father-in-law was in service and she further told that at Bhabhua also she was subjected to assault by her in-laws, husband and other relations. However, since no charge for the assault at Bhabhua was framed, the revisionist was misled in his defence and in his examination Under Section 313, Cr.P.C. as well because he was not referred to any evidence of assault, etc. at Bhabhua. So his examination Under Section 313, Cr.P.C. also was not according to law. Moreover, the Trial Court in its judgment stated that all the assault alleged against in-laws of the informant and other relations referred to the occurrence occurring at Bhabhua according to the evidence of P.W. 5; but since the in-laws of the informant and other relations were not living at Bhabhua, so the assault must have been committed by the husband only. As the other accused of the case were acquitted, so it appears that the Trial Court was also in confusion as to what was the place of occurrence regarding the assault upon the informant whether at Bhabhua or at Akhlaspur. The story relating to assault and demand of dowry from Bhabhua developed in the evidence of P.W. 5 created a confusion regarding the actual place of occurrence relating to assault of demand of dowry. IT is the accused including the revisionist who are to gain from the confusing evidence. No conviction can be had on the basis of the presumption and assumption regarding the place of occurrence as also the demand and consequent assault on non-fulfilment of the demand. So it is. apparent that the Trial Court and the Appellate Court both recorded the order of conviction on the basis of confusing evidence and after assuming that the assault must have taken place at Bhabhua at the hands of the revisionist, the husband of the informant. In this connection, I am of the opinion that no body can be convicted on the basis of confusing evidence nor a conclusion can be drawn from the confusing evidence by assuming or presuming something to have occurred to the victim of the case, it is further obvious that all the other accused persons of the case were acquitted for all the offences except that the revisionist was held guilty of the offence Under Section 498-A only.