MD Sikandar Alam Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Criminal Revision No. 337 of 2019

Md. Sikandar Alam @ Sikandar Alam aged about 31 years, son of Mustaq Pervej, resident of Mugo Gunjardih P.O. Nawadih, P.S. Nawadih, District-Bokaro … … Petitioner

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… … Petitioner

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Versus

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The State of Jharkhand

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Shubh Ratan Khatoon @ Subh Ratan Khatoon wife of Md. Sikandar Alam, resident of village Niche Deoghara, P.O. Mahuda, P.S. Mahuda, District-Dhanbad … … Opp. Parties ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Suraj Singh, Advocate For the State : Mr. Pankaj Kumar Mishra, A.P.P. For the O.P. No. 2 : Mr. Satyam Kumar, Advocate ---

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07 /19.04.2024 Learned counsel for the parties are present.

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2. This revision has been filed against the judgment dated 31.05.2018 passed by learned Additional Sessions Judge-XVI, Dhanbad, whereby the criminal appeal no. 243 of 2017 has been dismissed so far as the petitioner is concerned.

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3. The petitioner was convicted along with his mother and father vide judgement dated 7.12.2017 passed by the learned Judicial Magistrate, 1^st Class, Dhanbad in C.P. Case No. 1864 of 2009 whereby the petitioner and others were found guilty of offence u/s 498-A of the Indian Penal Code and were sentenced to undergo simple imprisonment for two years and fine of Rs. 5,000/- with default sentence. The appellate court has acquitted the other two accused i.e. father-in-law and mother-in-law of the victim complainant.

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4. The learned counsel for the petitioner while assailing the impugned judgments has submitted that the judgments are perverse in as much as no documentary evidence in connection with the treatment of the victim in the hospital has been adduced and in absence of such documentary evidence it cannot be said that the allegation made against the petitioner was proved beyond reasonable doubt and therefore the impugned order/judgment cannot be sustained. The learned counsel for the petitioner has also submitted that considering

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the fact that the petitioner has faced the criminal case since 2009, the sentence may be modified and this aspect of the matter has not been considered by the appellate court.

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5. The learned counsel appearing on behalf of the State while opposing the prayer has submitted that both the learned courts have considered the materials on record and have given concurrent finding with regard to the guilt and conviction of the petitioner u/s 498-A of IPC and all the accused persons were acquitted for charge u/s 323 IPC by the learned trial court itself. He has submitted that the impugned judgment of conviction u/s 498-A IPC does not call for any interference. The evidence of victim remained intact and other witnesses had supported the victim complainant. He submits that there is no scope for re-appreciation of materials on record and coming to a different finding. He submits that non production of any documentary evidence with regard to treatment has no bearing in as much as all the accused persons were acquitted u/s 323 of the Indian Penal Code. He submits that demand of dowry and torture has been duly proved. The learned counsel for the State has also opposed the prayer for modification of sentence and has submitted that the complainant had fully supported the prosecution case and in the manner in which the complainant has been treated, the petitioner does not deserve any lenient view from this Court.

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6. The learned counsel appearing on behalf of opposite party No. 2 has supported the argument of the State. 7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this court finds that as per the complaint case the marriage was solemnized on 3.7.2003 as per Muslim rights and at the time of solemnization of marriage itself demand of dowry was made which was duly fulfilled. After the marriage also, there was demand of money and motorcycle which the father of the complainant was unable to satisfy and consequently the complainant was beaten up and was thrown inside in a room without food and water and she suffered physical torture and after receiving information about her state, her father along with other

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witnesses came to her matrimonial home on 17.10.2003 but the accused persons misbehaved with them. It was also alleged by the complainant that the petitioner is alcoholic and under state of intoxication used to torture her and also raised demand of dowry from time to time. The entire detail in connection with the allegation made by the complainant has been narrated and recorded by the learned court.

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8. The complainant had examined altogether four witnesses and the complainant herself was examined as C.W. 4. After completion of the prosecution evidence the accused persons were examined u/s 313 Cr. P.C. and they denied the commission of the offence. The learned trial court has scrutinized all the materials on record and has recorded finding that out of the four witnesses, C.W. 1 was an independent witness. The learned court has considered the basic ingredients for offence u/s 498A IPC and after scrutinizing the materials convicted the petitioner and others u/s 498A of the Indian Penal Code and acquitted them for the offence u/s 323 IPC. The appellate court also scrutinized the materials and recorded its finding as under: -

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“ In the light of above provisions, I am going to scan the evidences led by the complainant. It appears that altogether four witnesses have been testified including complainant, out of them CW-4 Subh Ratan Khatoon is the complainant and sole victim of this case. She has given vivid description of occurrence of torture and cruelty committed upon her by the accused persons. She has consistently supported that her marriage was solemnized with Md. Sikandar Alam on 03.07.2003 according to Muslim rites and custom. After marriage she went to her sasural and lived there peacefully about two months, thereafter she was subjected to torture and cruelty for demand of Rs.1,50,000/- and Hero Honda motorcycle. She has also categorically stated that she reciprocated the occurrence to her parents then her father came and tried to persuade the accused persons but accused persons were adamant on their demand. She has also supported

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that several times her brother and father gave rupees to accused persons but accused persons continued to torture her. She has also stated that one day her husband came in drunken condition and badly assaulted on her abdomen, due to which she suffered severe pain and thereafter her husband brought her to her maternal home and left there. She has also stated that thereafter her father and Mama brought her to her matrimonial house but torture and cruelty continued upon her. Her tooth got broken during assault and she was thrown out from her matrimonial house. She has also stated that accused persons came to her maternal home and demanded paper of Nikahnama and other document and when her father declined to give the same then her brother-in-law threatened to face dire consequences by showing pistol then out of fear her father gave said documents to accused persons. She has stated that she is living in her maternal home since 2009. The evidence of said witness also get corroboration from evidence of CW2 Md. Gulam, who is the brother of complainant. He has also corroborated the factum of marriage of complainant with Sikandar Alam on 03.07.2003 and thereafter torture and cruelty committed on her by the accused for demand of Rs 1,50,000/- and motorcycle. He has also supported that on 12.03.04 all accused persons brought her sister to his house and demanded Rs. 1,50,000/- and motorcycle then he gave Rs.10,000/- but they went away after leaving his sister. He has also stated that on 16.10.06 he taken his sister to her matrimonial house but accused persons stated to give money or service of his father. He has supported that accused persons were not ready to keep his sister till their demand will be fulfilled. He has also supported that Rs. 12,000/- and Rs.20,000/- had been given to the father-in-law of his sister. He has also supported that husband of her sister assaulted on her stomach, due to which she suffered severe pain and thereafter she was brought to her maternal home where she underwent

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treatment. He has also supported that on 11.07.09 all accused persons came and demanded all the documents related to marriage, list of gift by showing pistol, then out of fear his father handed over the said document to accused persons. CW1 Uttim Chandra Mahto and CW3 Md. Salim have also supported the factum of marriage of complainant with Sikandar Alam in the year 2003 and thereafter torture and cruelty committed to complainant for demand of motorcycle and Rs.1,50,000/-. They have also stated that several times Rs. 10,000/- Rs.11,000/-, Rs.20,000/- were given by CW2 and father of complainant to accused persons but accused persons continued to torture and cruelty upon the complainant. CW3 has also stated that he along with father and other relatives of the complainant went to her matrimonial house but accused persons started hurling abuse and repeated their demands. It appears from evidences on record that factum of marriage of complainant with accused Sikandar Alam is not denied by accused persons. There is also consistent evidence that complainant was subjected to torture and cruelty for demand of Rs.1,50,000/- and motorcycle by her husband (appellant no.1) and when the said demand was not fulfilled she was brought to her maternal house and left there. There is also consistent evidence that husband of the complainant several times assaulted her in alcoholic condition, due to which she suffered severe stomach pain and her tooth was also broken. There is also consistent evidence that several times money were given by father and brother of complainant in lieu of their demand and with a hope that they will keep the complainant peacefully but torture and cruelty continued upon her and ultimately she was thrown out from her matrimonial house and from 2009 she is still living in her maternal house. The evidences of the witnesses are consistent, cogent and inspire confidence and nothing has been elicited during their cross-examination, which makes their version unbelievable.

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Thus, from above discussion considering the evidences and material on record I find and hold that prosecution has able to prove the charge U/s 498A of IPC against the appellant Sikandar Alam beyond the shadow of all reasonable doubts.”

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9. The learned appellate court was of the view that so far as charge u/s 498A IPC against two accused i.e. father-in-law and mother-in-law is concerned, the allegation against them was general and omnibus and ultimately acquitted them of the charges. But so far as the petitioner is concerned the conviction of offence u/s 498A of IPC was sustained. The appellate court also refused to interfere with the sentence and was of the view that it did not require any interference.

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10. This court finds that both the learned courts have given concurrent findings in connection with the conviction of the petitioner u/s 498A of the Indian Penal Code. Merely because no documentary evidence has been produced with regard to the treatment of the complainant in any hospital or in any nursing home, the same by itself is not fatal to the prosecution case as the trial court has acquitted all the accused persons for the offence u/s 323 IPC. This court also finds that the learned appellate court has clearly recorded that the evidence of the complainant was consistent, cogent and inspired confidence and nothing has been elicited during their cross examination which makes their version unbelievable.

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11. This court has gone through the impugned judgements and finds that both the courts have found sufficient material to convict the petitioner for offence under section 498A of IPC. No illegality or perversity as such has been pointed out to call for any interference under revisional jurisdiction of this court so far as the conviction of the petitioner is concerned. There is no scope for reappreciation of the materials on record in revisional jurisdiction and come to a different finding in absence of any perversity. The impugned judgements are well reasoned. In view of the aforesaid findings, the conviction of the petitioner under Section 498-A I.P.C. is upheld.

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12. However, the fact remains that the petitioner has faced the criminal case from the year 2009 and more than 14 years has elapsed. In such circumstances, this court is of the considered view that ends of justice would be served if the sentence of the petitioner is modified to some extent. The records indicate that the petitioner has remained in custody in connection with the present case for a period from 29.11.2018 till 17.05.2019 when the petitioner was enlarged on bail by this court and a few days must have been taken by the petitioner to furnish the bail bond.

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13. Considering the totality of the facts and circumstances of this case the sentence of the petitioner is modified and reduced to a period of imprisonment to one year and enhancement of fine to Rs. 50,000/to be deposited by the petitioner before the learned trial court within a period of two months from the date of communication of this judgment to the court concerned.

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14. In case the petitioner does not deposit the fine amount within the stipulated time frame, the petitioner will serve the remaining sentence as awarded by the learned trial court.

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15. Bail bond furnished by the petitioner is hereby cancelled.

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16. The fine amount, is directed to be remitted to the victim upon due identification.

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17. This revision is accordingly disposed of.

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18. Let this order be communicated to the court concerned through FAX.

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(Anubha Rawat Choudhary, J.)

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Binit