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Asserting a fact for the purpose of getting bail and denying the same while seeking leniency by revision cannot be entertained: Jharkhand High Court

In a case where bail is granted by asserting one fact , denial of the same fact cannot be a ground for seeking leniency and modifying the sentence passed by the trial court. A single-judge bench comprising of Justice Anubha Rawat Choudhary adjudicating in the matter of Sushil Marandi v. The State of Jharkhand (CRIMINAL REVISION No.131 of 2012) dealt with an issue of whether to modify the sentence passed by the trial court.

Facts-In the present case the Petition has filed for a revision against the conviction order dated 17.06.2008 where he was booked for the offence under section -498A of IPC and was sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 5000/-. Later the Appellate court reduced the sentence to 2 years and the fine was reduced to Rs. 2000/-.

The Petitioner submitted that the complainant was not the wife of the petitioner, therefore conviction u/s-498-A of IPC is not sustainable. Also submitted that the courts have failed to grant the benefit of Sec-360 CrPC.

The Petitioner submitted that “without prejudice to the aforesaid submission, the present case is of the year 1997-98 and the petitioner has remained in custody for a period from 10.08.2006 to 28.08.2007 and thereafter from 05.01.2012 to 24.07.2012 i.e. more than one year and seven months and the learned appellate court had reduced the sentence of the petitioner from three years to two years and the fine amount was also reduced from Rs. 5,000/- to Rs. 2,000/-. The learned counsel submits that considering the fact that about 22 years have elapsed from the date of incident, the sentence of the petitioner be modified and be limited to the period already undergone in custody.”

The Opposite Party stated that initially the case was registered under Sections 493, 376, 323, 420, and 313/511 of the Indian Penal Code and the learned trial court found prima-facie case under Sections 493 and 323 of I.P.C., but subsequently, the charge was framed under Section 498-A of the Indian Penal Code. It was also submitted that not only there were materials to prove the complainant is his wife but also they had a son who was born out of wedlock. Also during the time of granting bail, one supplementary affidavit was filed by the petitioner that he has solemnized his marriage with the girl and therefore they are living as husband and wife and on this ground, the Hon’ble Patna High Court was pleased to grant bail to the petitioner on furnishing bail bond of Rs. 10,000/-.It was also asserted by the complainant, that the Petitioner made an admission that the complainant is his wife and has also accepted that they had a son and r took the complainant and her son to his house and the Petitioner doesn’t deserve any leniency from the court.

The Court after considering all the minute details stated that the petitioner had accepted the complainant as his wife and taken her home and at that time, she was pregnant. The Panchayati document has also been exhibited. On the basis of the evidence regarding Panchayati as well as the evidence of the complainant and the father of the complainant, learned lower appellate court was of the view that the petitioner accepted having a marriage with the complainant.

This courts considered the view that “the learned courts below have rightly convicted the petitioner under Section 498-A of the Indian Penal Code. This Court also finds that the learned trial court rejected the plea of the petitioner to grant the benefit of Probation of Offenders Act, 1958 by recording that the offence has been committed against the woman and the accused persons wanted miscarriage of the 9 pregnancy of the complainant, which is a cruel form of the torture. Learned trial court as well as learned appellate court had also recorded their finding after considering the materials on record and the factum of cruelty on the complainant was proved beyond all reasonable doubts. There being no perversity or illegality in the impugned judgement, no interference is called for in revisional jurisdiction by this court.”

The court finds that the learned courts below have rightly convicted the petitioner under Section 498-A of the Indian Penal Code. This Court further finds that the petitioner has been rightly held not entitled to benefit of Probation of Offenders Act, 1958. The crime committed by the petitioner is not only against the woman, i.e., his wife, but also against society. This Court is of the view that the learned lower appellate court has already taken a lenient view by modifying the sentence and therefore no further modification of sentence is called for in exercise of revisional jurisdiction of this Court.

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