1. Heard learned counsel for the petitioner and learned A.P.P. appearing for the State as well as learned counsel for the opposite party no. 2.

2. The instant criminal revision is directed against the judgment dated 10.08.2016 passed by learned Sessions Judge, Koderma in Criminal Appeal No. 47 of 2014, whereby and whereunder the conviction of the petitioner for the offence under Section 498A of the I.P.C. passed by learned Judicial Magistrate, 1st Class, Koderma in XXXXX (arising out of Jainagar P.S. XXXXX has been upheld and the petitioner has been sentenced to undergo S.I. for 02 years along with fine of Rs. 1,000/- for the offence under Section 498A of the I.P.C. with default stipulation.

3. Factual matrix giving rise to this revision is that informant Uma Devi was married with the petitioner in the year 2002. She joined her matrimonial home and started living there peacefully for 4-5 years. It is further alleged that thereafter her husband (present petitioner) went to Delhi for studies and also got job there. The informant also completed her matriculation in the meantime. It is alleged that after returning from Delhi, her husband stopped talking with her and conduct and behaviour of her in-laws also changed, who started misbehaving, abusing and assaulting. Therefore, informant returned to her parental home. Thereafter, a Panchayati was convened by her father, wherein it was resolved that husband of the informant will keep her at sasural. Accordingly, informant went to her sasural, but the accused persons started demanding Hero Honda motorcycle and 2 lakhs rupees cash as dowry. She was being taunted and tormented saying that if at present her husband might have married, he would have brought Rs. 10,00,000/- (Rupees Ten Lacs) as dowry. The assault and torture meted to informant increased and she was forced to live separately. Her ornaments were also snatched. It is alleged that on 13.05.2010, she was assaulted by accused persons and they also attempted to kill her, but she was unable to come out from matrimonial house. Hence, she called upon her brother Sukhdeo Yadav and handed over written report for instituting case by police.

4. On the basis of written report of informant, FIR was instituted for the offence under Sections 323, 498A, 379, 506 read with 34 I.P.C. After conclusion of investigation, charge sheet was submitted against the accused persons for the offences under Sections 498-A, 323, 506 read with 34 of the I.P.C.

5. In course of trial, altogether nine witnesses were examined by the prosecution apart from documentary evidence.

6. On the other hand, the case of defence is denial from occurrence and false implication on concocted story. The informant is still residing in her matrimonial home and getting her maintenance by her husband and in-laws.

7. The learned trial court, after appreciating the evidence of witnesses has convicted and sentenced the petitioner. The learned appellate court also concurred with the findings recorded by the learned trial court has dismissed the appeal, which has been assailed in this revision.

8. Learned counsel for the petitioner has submitted that the impugned findings, judgment and sentence against the petitioner are perverse and contrary to the evidence available on record. It is further submitted that the learned appellate court has upheld the conviction of the petitioner only on the sole ground that he is not keeping his wife with him which amounts to cruelty.

9. It is further submitted that the learned trial court as well as appellate court have erred in not considering the evidence of the prosecution in its true spirit in the context of the petitioner. Therefore, this revision is fit to be allowed by setting aside the conviction and sentence of the petitioner.

10. On the other hand, learned counsel A.P.P. appearing for the State along with learned counsel for the opposite party no. 2 has vehemently opposed the contention raised on behalf of the petitioner and submitted that there is concurrent finding of both the courts i.e. trial court as well as appellate court. The learned trial court as well as learned appellate court has not committed any error of law in convicting and sentencing the petitioner. Therefore, there is no merit in this appeal, calling for any interference in the impugned judgment and order, which it fit to be dismissed.

11. I have gone through the record of the case along with impugned order in the light of contentions raised on behalf of both side.

12. It appears that the learned trial court, while appreciating the evidences of witnesses examined during trial, has recorded objective findings that all witnesses except P.W.-5 and P.W.-8 (informant) have stated in very general and vague manner about illegal demand of dowry and torture meted with the informant at the hands of accused persons. The evidence shows that petitioner is not interested in matrimonial life and compelled to leave his wife alone in her matrimonial home. However, the learned trial court has held the petitioner guilty for the offence under Sections 498A & 323 of the I.P.C.

13. The convict preferred Cr. Appeal No. 47 of 2014 before the learned Sessions Judge, who after hearing the parties, upheld the impugned judgment passed by learned trial court, but has recorded specific findings that “there is strained relationship between informant and her husband. Her husband is living at Delhi and despite of steps taken by his father, he is not coming to his village. It can also be gathered from the materials available on record that informant is residing at her sasrual. Her brother Prakash Yadav (P.W.-2) in para-4 of his cross-examination, has admitted this fact that his sister receives something from the cultivation of land belonging to her husband. Father-in-law and mother-in-law of the informant reside at Dhanbad and occasionally they visit their village. It is true that father-in-law of the informant has not transferred his movable and immovable properties in favour of the informant as per direction of the Panchayat but it is apparent that informant is enjoying the property of her father-in-law. The allegations of demand of dowry appears to be false. The allegations of assault of the informant at the hands of the accused persons also appears to be not true. Her husband is not residing with her for a long time while her father-in-law and mother-in-law reside at Dhanbad. She had alleged tortured at the hands of her Dewar also. As discussed above, police has found this allegations not true. But there is no doubt that husband of the informant is avoiding her. He had instituted MTS Case No. 10/2010 u/s.13 of the Hindu Marriage Act against the informant for dissolution of marriage. Certified copy of order sheet of MTS Case No.10/2010 is on the record which has been marked Ext. A. Not keeping his wife with him by a husband without any proper ground also amounts to cruelty. The learned counsel for the appellants has fairly submitted that despite the pressure mounted by his father and mother, the appellant/convict Hari Naryan Yadav is not coming to Koderma and he is not ready to keep his wife with him. It appears to me that certainly the appellants /convicts are guilty of cruelty which he is committing with the informant continuously. So far as case of other two appellants/convicts is concerned, I find that they have been implicated in this case only because they are parents of husband of the informant. In my view, appellants /convicts Atwari Yadav and Basanti Devi deserve benefit of doubt but no leniency can be shown towards appellant /convict Hari Narayan Yadav.”

14. In view of aforesaid findings recorded by the learned appellate court, other co-convicts were given benefit of doubt and acquitted from the charges leveled against them. The petitioner, alone, was held guilty for the offence under Section 498A of the I.P.C.

15. It further appears that out of nine witnesses, the witnesses of facts namely P.W.-1 Sukhdeo Yadav, P.W.-2 Prakash Yadav, P.W.-3 Darshan Yadav, P.W.-4 Basudeo Yadav and P.W.-5 Hiraman Mistri are hearsay witnesses from the informant. P.W.-6 Mahesh Sao is witness of Panchayati. P.W.-7 Manoj Yadav has only submitted educational certificate. P.W.-9 S.I. Ram Sagar Tiwari is the Investigating Officer in this case. Therefore, sole material witnesses in this case is P.W.-8 Uma Devi, who is informant-cum-victim, in her examination-in-chief, she has corroborated the contents of her earliest version mentioned in the written report, but in her cross-examination, she specifically admits that when the Panchayati was convened, her husband did not attend, but she has not complained about any physical assault meted to her at the hands of her husband and in-laws nor there was any illegal demand of money. She also admits that she is still residing at her sasural since 2010, but her husband and in-laws are not residing with her and her husband even does not talk with her. The husband has snapped all emotional concern with her and not interested in keeping her at place of service.

16. From perusal of record, it further transpires that the charge under Section 498A I.P.C. framed by the learned trial court, reads as under:-

                   “That you on or about the 13th May, 2010 and also after 5th yar of marriage at Pipcho, P.S.- Jainagar, Distt. Koderma, being the husband and relative of the husband of Uma Devi subjected the said Uma Devi to cruelty mental and physical in furtherance of common intention of all of you.”

17. There is concurrent finding of learned trial court as well as learned appellate court that the allegation of demand of money or motorcycle and giving physical assault to the informant was found to be not true on the basis of evidence adduced in this case. The learned trial court relied upon the evidence recorded in examination-in-chief of the informant and without considering the materials elicited in her cross-examination, held the accused persons guilty for the offences charged. It further transpires that the learned appellate court has recorded specific finding that in view of materials elicited in the cross-examination of the informant, she is still residing at her matrimonial home, although there is no talking terms with her husband, which also amounts to cruelty against wife, but he has ignored the fact that due to matrimonial discord between the parties, the husband has already been granted decree of divorce from his wife. Divorce petition was filed by the petitioner against his wife as he was not interested to continue his marital life with the informant. Mere status of husband and wife showing some matrimonial discard and paying no attention against each other and showing reluctance in discharging conjugal rights and obligations does not fall within ambit of Section 498A I.P.C. as culpable cruelty. It appears that the learned trial court has assumed the conduct of the appellant (petitioner herein) amounting to cruelty against his wife, which is absolutely unfounded and merely based on conjecture and surmises. Therefore, the very basis for conviction of the petitioner for the offence under Section 498A of the I.P.C. is upheld by the learned appellate court, appears to be not justified under law, illegal and improper. Therefore, conviction and sentence of the petitioner for the offence under Section 498A of the I.P.C. appears to be perverse.

18. In view of above discussion and reasons, I find merits in this revision. Accordingly, the impugned judgment of conviction and order of sentence of the petitioner passed by the learned trial court and upheld by the appellate court is hereby set aside and this revision is allowed.

19. Petitioner is on bail. As such, he is discharged from the liability of bail bonds and sureties shall also discharged.

20. Pending I.A., if any stands disposed of.

21. Let a copy of this judgment along with trial court record be sent to the concerned court for information and needful.