S.S GREWAL,J - (1.) THE petitioner was convicted under Section 406, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for 1-1/2 years and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo further rigorous imprisonment for four months. The petitioner was also convicted under Section 417, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- or in default he was further ordered to undergo rigorous imprisonment for two months, vide order of Addl. Chief Judicial Magistrate, Patiala dated 6-5-1992. Appeal filed against the order of conviction and sentence passed by the learned trial court was dismissed by Addl. Sessions Judge, Patiala, vide order dated 30th July, 1993. Aggrieved against the order of conviction and sentence passed by the courts below, the petitioner filed this revision petition.
(2.) IN brief, facts relevant for the disposal of this petition are that Madhu Sharma PW was married to the petitioner, according to Hindu rites on 24.4.1983. The petitioner was already married to Shashi Bala daughter of Lahori Lal of Rishikesh. According to the complainant. the second marriage of the petitioner with Madhu Sharma was entered into because of fraud and mis-representation on the part of the petitioner. After the marriage both petitioner and Madhu Sharma stayed together. During this period the petitioner maltreated and also gave beating to Madhu Sharma for bringing inadequate dowry. On 8th May, 1983, Madhu Sharma was given severe beating by the petitioner as well as Pushpa (sister and Jagjiwan Ram brother-in-law) of the petitioner. In July, 1983, she was taken to Jammu, where she was again given severe beating. Her mother and grandmother came to Jammu and they too were given beating by the petitioner. In October, 1984 Madhu Sharma was taken by the petitioner to his village where she came to know of the previous marriage of the petitioner. It is also alleged that the parents of Madhu Sharma had given dowry/Isridhan worth Rs. 60,000/- on the occasion of marriage with the petitioner. All these articles are in possession of the petitioner, his sister, brother-in-law and one Amar Singh their friend. It is also alleged that during this period the petitioner wrongly posed himself as a CBI Officer. The learned counsel for the parties were heard. On behalf of the petitioner it was submitted that both the courts below have erred in convicting the petitioner under Section 406 Indian Penal Code. It is further submitted that there is no legal, cogent and reliable evidence concerning entrustment of any article of dowry to the petitioner. Reference in this aspect was made to the statement of Madhu Sharma (PW-1) who deposed that articles mentioned in the list Ex. PA were given to her at the time of her marriage by her parents and relations These articles were handed over to Pushpa Devi, Jagjiwan Ram and one Amar Singh. She further stated that the articles remained with aforesaid persons and these articles were not returned even on her demand. In cross-examination she admitted that a set of gold weighing 3 tolas, pendal of gold of two tolas and four bangles weighing 4 1/2 tolas were given to the accused in the marriage but were not mentioned in the list Ex. PA and these have been retained by the above mentioned three persons. To the similar effect is the testimony of her father Des Raj. He too deposed that these articles were handed ever to Pushpa, Jagjiwan Ram and Amar Singh for use of Madhu Sharma including golden ornaments. Apparently, there is no evidence that the aforesaid articles of dowry were entrusted to the petitioner at the time of marriage or even at a later stage. Apart from that, the case of the prosecution is that in pursuance of the disclosure statement made by the petitioner he got recovered articles of dowry mentioned in the list Ex PA. Further more, Des Raj PW deposed that the articles mentioned in Ex. PA were recovered by the police in his presence from the house of Krishan younger sister of the accused from village, near Samrala at the instance of Krishan Kumar petitioner and Pushpa. All these circumstances taken together particularly absence of any evidence concerning entrustment of articles of dowry to the petitioner, is sufficient to hold that no offence under Section 406. Indian Penal Code, has been made out against the petitioner and the order of conviction passed by the courts below with regard to the said offence cannot be legally sustained. The conviction of petitioner under Section 406. Indian Penal Code, is accordingly set aside and giving him the benefit of doubt he is acquitted of the said offence.
(3.) AS far as the offence under Section 417, Indian Penal Code, is concerned, there is overwhelming evidence on the record that the petitioner by misrepresentation and by playing fraud induced Madhu Sharma, her father Des Raj and their relations that he was unmarried and he was working in the CBI which fact was not true to the knowledge of the petitioner. The petitioner by his aforesaid misrepresentation and fraud had intentionally induced Madhu Sharma to give her consent of her marriage with the petitioner which otherwise she or her parents would not have given in case they had known that the petitioner was already married and that he was not holding any post in the CBI as represented by him. The factum of second marriage was deliberately concealed by the petitioner from Madhu Sharma PW 2, her father Des Raj and their relations. The testimony of Madhu Sharma and Des Raj in this regard has rightly been relied upon by the Courts below and the said evidence is sufficient to bring home the guilt under Section 417 of the Indian Penal Code beyond any reasonable doubt. The conviction passed against the petitioner by the courts below under Section 417, Indian Penal Code, is accordingly upheld. Lastly, it was submitted on behalf of the petitioner that the petitioner may be released on probation or in the alternative sentence awarded to the petitioner maybe reduced. Taking into consideration the allegations and the nature of offence made out against the petitioner mere fact that the petitioner is not a previous convict, would not be sufficient to give benefit of Probation to the petitioner who is about 35 years of age and mature enough to know the consequences of his act. The nature of the offence committed by the petitioner against Madhu Sharma PW is of serious nature, I am of the considered view that no leniency can be shown to the petitioner and it is not a fit case to grant benefit of Probation of Offenders Act, 1958 to him. Nor having regard to. the facts of the case in hand, the sentence imposed by the courts below in any manner can be said to the excessive. This petition is partly allowed to the extent indicated above.;