Partly allowed

Azim Ansari v. State of Jharkhand

Jharkhand HC3 Sept 2021Cr.Rev./1032/2012

Case brief

AI extract

What is this about?

Criminal revision petition challenging conviction under Section 498A IPC. Court held conviction perverse as dowry demand allegations were never put to petitioner under Section 313 CrPC, violating natural justice. Convictions under Sections 323 and 341 upheld.

What did the court decide?

Conviction and sentence under S. 498A IPC set aside; convictions under Ss. 323 and 341 IPC upheld; file remitted to lower court.

Azim Ansari Vs State of Jharkhand — Cheating and Forgery | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No. 1032 of 2012

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Azim Ansari son of Late Zahoor Ansari, resident of Village- Rajadera, P.O. & P.S. Angara, District Ranchi … … … Petitioner

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-Versus-

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State of Jharkhand … … Opposite Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Ms. Amrita Banerjee, Amicus Curiae For the State : Mr. Shekhar Sinha, A.P.P. ---

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Through Video Conferencing

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13/03.09.2021 Heard Ms. Amrita Banerjee, the learned Amicus Curiae appearing on behalf of the petitioner-husband.

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2. Heard Mr. Shekhar Sinha, the learned A.P.P. appearing on behalf of the Opposite Party-State. 3. The present criminal revision petition is directed against the Judgment dated 11.10.2012 passed by the learned Judicial Commissioner-IX, Ranchi in Criminal Appeal No. 40 of 2012 whereby and whereunder the learned appellate court confirmed the conviction and sentence of the petitioner under Sections 498A, 323 and 341 of the Indian Penal Code passed by the learned trial court.

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4. The learned trial court, vide Judgment of conviction and the order of sentence dated 23.01.2012 passed by the learned Judicial Magistrate, 1st Class, Ranchi in G.R. Case No. 706 of 2005 / T.R No. 398 of 2012 (arising out of Angara P.S. Case No. 10/2005 dated 07.03.2005), had convicted the petitioner and four others under Sections 498A, 323 and 341 of the Indian Penal Code and had sentenced them to undergo Rigorous Imprisonment for 02 Years with fine of Rs.2,000/- each and in default of payment of fine, to undergo Simple Imprisonment for one month for the offence under Section 498A of the Indian

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Penal Code, Simple Imprisonment for six months under Section 341 of the Indian Penal Code and Simple Imprisonment for six months under Section 323 of the Indian Penal Code and all the sentences were directed to run concurrently and the period undergone in judicial custody by the convicts was directed to be set off.

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Arguments on behalf of the petitioner

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5. The learned amicus curiae appearing for the petitioner, while advancing her arguments, submitted that the petitioner is the husband of the informant and marriage of the petitioner was solemnized with the informant on 14.04.2003 and out of the wedlock, three children were born and the case was filed on 07.03.2005. She further submitted that as per the allegations, there was demand of Rs.50,000/-, one motorcycle and one colour T.V., but the specific date of demand and torture was neither mentioned in the First Information Report, nor appeared in the evidences of the prosecution witnesses.

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6. The learned amicus curiae further submitted that altogether five witnesses were examined by the prosecution. P.W.-1 and P.W.-2 are the brothers of the informant, P.W.-3 is the maternal uncle of the informant, P.W.-4 is the father of the informant and P.W.-5 is the informant herself and all the prosecution witnesses are interested witnesses. She submitted that the investigating officer of the case has not been examined and there is no injury report on record. She also submitted that altogether three defence witnesses have also been examined.

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7. The learned amicus curiae further submitted that there is an allegation of assault against the petitioner and others on the date of filing of the First Information Report i.e. on 07.03.2005, but there is no allegation of demand of any property or dowry. She also submitted that on the same date and time of the occurrence, the genital part of the petitioner was cut by the informant of the case and therefore, the family members of the

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petitioner had tied the hands of the informant and the brother of the petitioner had informed the police and thereafter, the police had arrived and untied the informant. She submitted that the petitioner had also filed a separate case in connection with the aforesaid assault upon him and it has also come in evidence that the petitioner was treated in the hospital inside the jail for months together for the injury suffered in his genital part. She also submitted that the petitioner has been falsely implicated in the present case and the impugned judgments of conviction are not sustainable in the eyes of law.

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8. The learned amicus further submitted that other family members of the petitioner had also faced the trial, but they have been ultimately acquitted by the learned appellate court on the ground that on 07.03.2005, there was no demand of any property or dowry by them. She submitted that case of the petitioner stands on the same footing as that of his family members, but the conviction of the petitioner has been sustained only on the ground that the petitioner is the husband of the informant of the case.

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9. The learned amicus curiae, while referring to the examination of the accused-petitioner recorded under Section 313 of the Code of Criminal Procedure, submitted that the learned trial court had put questions in connection with incident of 07.03.2005, but no question has been put regarding any incident which was alleged to have taken place before 07.03.2005. She submitted that the specific question put to the petitioner was in connection with the incident of 07.03.2005 and on subsequent date, but there is no allegation of demand of any property on 07.03.2005, rather the allegation regarding dowry demand is related to much prior to the said date. Consequently, the conviction of the petitioner under Section 498A of Indian Penal Code is not sustainable in the eyes of law. She also

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submitted that the evidences of the defence witnesses have also not been properly considered by the learned courts below.

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Arguments on behalf of the Opposite Party-State

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10. The learned A.P.P. appearing on behalf of the Opposite Party–State, on the other hand, opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and accordingly, the same may not be interfered with under revisional jurisdiction.

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Findings of this Court

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11. The prosecution case is based on the fardbeyan of the Informant namely, Mariam Khatoon (P.W.-5) alleging that the informant was married with the petitioner two years ago and at the time of marriage, her father had given Rs.15,000/- cash, cycle, watch, godrej and other household articles in dowry. But after sometime, her husband, mother-in-law, brother-in-law and others demanded Rs.50,000/- cash and other articles as dowry from her and also assaulted and abused her. The petitioner took the informant to her parental house where she remained for one year and after the death of her father-in-law, her father took her to her matrimonial house, but she was again abused and assaulted by her husband, mother-in-law, bhaisur and devar and she again came to her parental house. It was further stated that one month before the occurrence, a meeting was held in Kutey Anjuman where the petitioner was also present and on the basis of the decision of the Anjuman, the petitioner took her to his house and since then, the informant was residing in her matrimonial house. When the informant went there, the petitioner and other accused persons again started abusing her and they also assaulted her. Her bhaisur Nazrul Ansari instigated the petitioner to demand Rs.50,000/cash, colour T.V. and motorcycle from her parental house. On 06.03.2005, when her father came to her matrimonial house, her

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husband and bhaisur abused him and told him to fulfill the aforesaid demands as dowry and thereafter, her father returned to his house. On 07.03.2005, the petitioner and other accused persons assaulted the informant and also abused her. Nazrul Ansari assaulted her with lathi, danda, fists and slaps and tied her both hands behind her back. Thereafter, the petitioner told the informant that he will cut his genital organ and will institute a case against her.

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12. On the basis of the fardbeyan, the case was registered as Angara P.S. Case No. 10/2005 dated 07.03.2005 under Sections 498A, 341 and 323 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against the petitioner and four others. After completion of investigation, the Investigating Officer submitted charge-sheet under Sections 498A, 341 and 323 of the Indian Penal Code against them.

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13. On 16.07.2005, the charges under Sections 498A, 341 and 323 of the Indian Penal Code were framed against the petitioner and four others which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 14. In course of trial, the prosecution examined altogether five witnesses in support of its case. P.W.-1 is Md. Ziyarat Ansari and P.W.-2 is Ibadat Ansari and both are the brothers of the informant. P.W.-3 is Basarat Ansari who is the maternal uncle of the informant. P.W.-4 is Razzak Mian who is the father of the informant and P.W.-5 is Mariam Khatoon who is the Informant herself.

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15. P.W.-1 deposed that the marriage of his sister was solemnized with the petitioner in April, 2003 and he was present at the time of marriage and on demand, Rs.15,000/cash and articles worth Rs.40-50 thousand were given to the inlaws of the informant. She stayed peacefully for one year in her matrimonial house, but thereafter, her in-laws started demanding dowry and started assaulting her and Rs.50,000/-

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cash and motorcycle were demanded as dowry, but they refused to give dowry. Thereafter, they wrote to the committee and the committee sent the informant to her matrimonial house, but her in-laws did not keep her. He further deposed that the informant has two sons and one daughter and they bear their expenses. He further stated that the dowry was demanded by the petitioner and Md. Mubarak and Md. Nazrul Haque.

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16. P.W.-2 has deposed that the marriage of his sister with the petitioner was solemnized in 2003. At the time of marriage, they had given articles worth about Rupees 1 – 1 ¼ Lac to the informant and she went to her matrimonial house where she stayed peacefully for 4-5 months. But thereafter, Nazrul Ansari, Salim Ansari, Mubarak Ansari and the petitioner assaulted her and started demanding Rs.50,000/-, one colour T.V. and one motorcycle, but they refused to fulfill the demand and submitted an application before the Kutay Committee and the committee sent the informant to her matrimonial house. But within one month, the accused persons assaulted the informant and when his father went to the matrimonial house of the informant and tried to pacify the accused persons, they quarreled with him and again demanded Rs.50,000/- from him and thereafter, his father returned to his house and narrated about the occurrence to them. After one day, he alongwith 2-3 persons went to the matrimonial house of the informant where he saw that the police had come there and his sister was badly assaulted by the accused persons. His sister was treated at the Government Hospital, Angara and the informant was taken to their house from the police station.

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17. P.W.-3 deposed that the informant is his bhanji and her marriage with the petitioner was solemnized four years ago. This witness further deposed that after the marriage, she went to her matrimonial house and stayed there happily for 1 – 1 ½ years, but thereafter Rs.50,000/- was demanded from her and

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the petitioner and his mother and others assaulted her. On the next day of the occurrence, they had gone to the matrimonial house of the informant and saw her in injured condition.

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18. P.W.-4 deposed that the marriage of his daughter namely, Mariam was solemnized with the petitioner on 14.04.2003 and after the marriage, she went to her matrimonial house where she lived happily for six months, but thereafter, Nazrul, Azim, Mubarak, Salim and Sogra Khatoon started demanding Rs.50,000/- cash, one colour television and one motorcycle from his daughter and the accused persons took his daughter to his house. He gave information to the Anjuman Committee and the Anjuman Committee sent the informant to her matrimonial house where she lived for one month. On 07.03.2005, the accused persons assaulted the informant and tied her hands from behind and thereafter, police came there. He further deposed that he had reached at the matrimonial house of the informant in presence of the police. The police untied the hands of the informant and took them to the police station where the police handed over the informant to him and since then, she is residing with him.

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19. P.W.-5 is the informant herself and she deposed that her marriage with the petitioner was solemnized on 14.04.2003. At the time of marriage, her father had given Godrej Almirah, Bicycle, watch, etc. and Rs.15,000/- and after the marriage, she went to her matrimonial house where she lived happily for 2-3 months. Thereafter, Nazrul Hussain, Salim Ansari, Azim Ansari, Mubarak Ansari and Sogra Khatoon together started assaulting her and started demanding one colour television and Rs.50,000/- from her and in the meantime, the petitioner took her to her parental house and left her there. After staying for one year in her parental house, after death of the father of the petitioner, her father took her to her matrimonial house, but the accused persons did not provide food and clothes to her and

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assaulted her. When her father went to her matrimonial house, the accused persons demanded Rs.50,000/- and one colour television, abused him and drove him away and they tied her after assaulting her. Thereafter, police came to her matrimonial house and untied her and her fardbeyan was recorded. She exhibited her fardbeyan as Exhibit-1.

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20. After closure of prosecution evidence, the statements of the accused persons including the petitioner were recorded under Section 313 of Cr.P.C. wherein the petitioner stated that the allegations are false and he would adduce evidence in his defence. Thereafter, three defence witnesses were examined. D.W.-1 is Sufal Singh, D.W.-2 is Qayum Ansari and D.W.-3 is Nand Kishore Mahtha.

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21. D.W.-1 deposed that the petitioner is a resident of his village and his marriage was solemnized with Informant in 2003 and no dowry was taken at the time of marriage. After the marriage, the Informant used to reside in her parental house for most of the time and she used to come to her matrimonial house after 3-4 months and used to stay for 2-4 days and used to return to her parental house. He further deposed that on 07.03.2005, he was in his school and meanwhile, he heard that the informant had bitten the private part of the petitioner by her teeth. He reached at the matrimonial house of the informant where he saw blood in the lungi of the petitioner and they had locked the informant in a room. Thereafter, the brother of the petitioner went to Angara P.S. for giving information to the police. He knew that the treatment of the petitioner had continued for 6-7 months.

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22. D.W.-2 deposed that he knows the petitioner who is a resident of his village and he had attended the marriage of the petitioner. After the marriage, the informant stayed at her matrimonial house for 8-9 days and thereafter, she went to her parental house. He heard noise in the house of the petitioner

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and went to his house where he saw that the private part of the petitioner was cut and there was bleeding. The informant was caught there. The police came and took away the petitioner and the informant.

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23. D.W.-3 deposed that the petitioner is a resident of his village and his house is at a distance of 300 feet from his house. The marriage of the petitioner was solemnized in the year 2003 and after the marriage, informant stayed at her matrimonial house for two months and thereafter, at her parental house for two months. In 2005, he heard some noise in the lane and he went to the house of the petitioner where he saw bleeding in the private part of the petitioner. He received information that the informant has bitten the private part of the petitioner. The police was informed. The informant was kept in the house.

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24. The learned trial court considered the evidences available on record and recorded in Para-13 that all the prosecution witnesses have fully supported the prosecution case and the evidences of the defence witnesses support the facts that the accused persons assaulted the informant and locked the informant in a room which is also a kind of cruelty. However, none of the prosecution witnesses has been able to state any date regarding demand of dowry and torture committed to the Informant. The learned trial court was of the view that it was due to the reason that their evidences were recorded after lapse of long period and they have forgotten the dates, which is natural. The learned trial further recorded that it is established in the present case that the petitioner and the in-laws of the informant tortured the informant, physically and mentally, for fulfillment of the demand of Rs.50,000/- cash, motorcycle and one colour television, for which sufficient evidence is available on record and the prosecution has been able to prove its case beyond all reasonable doubts. The learned trial also recorded that with regard to the charges under Sections 341/323 of the

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Indian Penal Code, clear evidence is available on record and the defence witnesses have also accepted that the hands of the informant were tied from behind and she was assaulted. The learned trial court convicted the petitioner and four others under Sections 498A, 323 and 341 of the Indian Penal Code and sentenced them as mentioned above.

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25. The learned appellate court also considered the evidences on record and, with regard to the Godrej Almirah, cycle, etc. and Rs.15,000/- given at the time of marriage, and found that in the evidence of P.W.-5 there is no specific evidence about demand of dowry by the accused persons. The learned appellate further recorded in Para-13 that no specific date is mentioned in the evidence of P.W.-5 as to when all the accused persons demanded Rs.50,000/- from her.

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26. On the basis of the aforesaid findings, the learned appellate court confirmed the conviction and sentence of the petitioner under Sections 498A, 323 and 341 of the Indian Penal Code, but set aside the conviction and sentence of the coaccused persons namely, Sogra Khatoon, Nazrul Ansari, Mubarak Ansari and Salim Ansari under Sections 498A, 323 and 341 of the Indian Penal Code and acquitted them from the charges thereunder giving benefit of doubt to them.

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27. This Court finds that the learned trial court convicted the petitioner under Section 498A of the Indian Penal Code in relation to the demand of Rs.50,000/- cash, one motorcycle and one colour television as dowry made from the informant before the incident of 07.03.2005 and the learned trial court has not recorded any finding that on 07.03.2005, there was any demand of property or dowry by the petitioner from the informant or from her relatives. Further, it was never the case of the prosecution that there was any demand of property or dowry on 07.03.2005 or after the incident of 07.03.2005. Further, it was never the case of the prosecution that the torture of the

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informant on 07.03.2005 or after the incident of 07.03.2005 was of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the women) which comes within the definition of cruelty under Section 498-A. However, the learned appellate court, inter alia , upheld the conviction of the petitioner under Section 498-A IPC and acquitted the other accused by stating that there was no specific allegation regarding demand of dowry. The learned appellate court also recorded that in the case in hand, it has come in the evidence of PW-5 and PW-4 that hands of the informant were tied and she was confined in a room and that the witnesses DW-1, DW-2 and DW-3 have given evidence on this point that the informant was locked in a room. The defence witnesses also corroborated this part of the prosecution story that on the date of occurrence i.e. 07.03.2005, the informant was kept in a room in tied up condition and she was set free when the police came. With this background, the learned appellate court was of the view that the prosecution has succeeded in proving the charge against the petitioner-husband for offence under Sections 498A, 341 and 323 of the Indian Penal Code beyond the shadow of all reasonable doubts.

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28. From perusal of the statements of the petitioner recorded under Section 313 of Cr.P.C., this Court finds that the Question put the petitioner with regard to the offence under Section 498A of the Indian Penal Code was -

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There is evidence and allegation against you that on 07.03.2005 and on the subsequent dates, you, being her husband, alongwith the co-accused persons tortured the Informant Mariam Khatoon at Village- Rajadera, P.S.Angara, District- Ranchi. What do you have to say ?

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29. This Court finds that the learned trial court, during examination of the petitioner under Section 313 of Cr.P.C., put

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the question in connection with the incident of 07.03.2005 and subsequent events, but no question was put to the petitioner regarding any incident or demand of dowry or property which was alleged to have taken place only before 07.03.2005 as per the prosecution case itself. This Court further finds that there is no allegation against the petitioner regarding demand of any property or dowry on 07.03.2005 or on any subsequent date and the allegation with regard to Section 498A was made on alleged demand of dowry prior to 07.03.2005, that too without any specific dates.

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30. In such circumstances, no opportunity was given to the petitioner to present his defence and to rebut the accusation with regard to the incriminating evidences appearing against him relating to the period prior to 07.03.2005 and thereby, causing prejudice to the petitioner.

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31. In view of the aforesaid facts and circumstances of the case, the law laid down by the Hon’ble Supreme Court in the case of “ Maheshwar Tigga -versus- The State of Jharkhand” (2020) 10 SCC 108 is fit to be referred to wherein in Para-8 , it has been observed as under:

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“8. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. ”

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32. This Court finds that it is not in dispute that when the informant of the case was in distress, she had assaulted the petitioner on his private part causing bleeding injury and due to which, he was treated and he also filed a case against his wife

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in connection with such assault. It is also not in dispute that the informant was found in a tied up condition in a room, when she was recovered. It is further not in dispute that the police were called at the instance of the petitioner, when he was allegedly assaulted by his wife (informant).

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33. Considering the fact that the entire allegation regarding demand of dowry related to the period prior to 07.03.2005 regarding which no question was put to the petitioner in his examination under section 313 of Code of Criminal Procedure, and the incident of 07.03.2005 and onwards was not even alleged to be likely to drive the informant to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the women), the conviction of the petitioner for offence under Section 498-A of IPC is perverse and suffers from material irregularity and calls for interference in revisional jurisdiction of this court to secure the ends of justice.

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34. This Court finds that there are concurrent findings recorded by the learned courts below that on 07.03.2005, the petitioner was present at the place of occurrence and the informant was assaulted and was forcibly locked in a room and the police recovered her in a tied-up condition and took away her alongwith the petitioner to the police station. The findings are based on materials available on record. In view of concurrent findings based on materials on record, the conviction and sentence of the petitioner for offences under Sections 341 and 323 of the Indian Penal Code do not call for any interference in revisional jurisdiction. Accordingly, the judgments passed by the learned trial court and the learned appellate court, so far as the conviction and sentences of the petitioner under Sections 341 and 323 of IPC are concerned, are upheld.

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35. At this stage, learned Amicus Curiae pointed out that the petitioner has already remained in custody for a period of one year and he has been sentenced for six months under Sections 341 and 323 of the Indian Penal Code and the sentences have been directed to run concurrently.

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36. It is observed that the custody of the petitioner in connection with the present case is a matter to be verified by the learned court below.

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37. As a cumulative effect of the aforesaid findings, this criminal revision application is hereby partly allowed .

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38. Pending Interlocutory Application, if any, is disposed off.

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Appreciation for Amicus Curiae and Payment:

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39. This Court observes that vide order dated 13.04.2021, Ms. Amrita Banerjee, Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of the case. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to her within a period of 04 weeks upon submission of bills by her.

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40. The office is directed to provide a copy of this Judgment to Ms. Amrita Banerjee, the learned Amicus Curiae and also to the Secretary, Jharkhand High Court Legal Services Committee. 41. Let the lower court records be sent back immediately to the court concerned.

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42. Let a copy of this Judgment be communicated to the learned court below through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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Pankaj

Azim Ansari v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Azim Ansari v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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