Allowed

Md Kalim Ansari v. The State Of Jharkhand And Anr.

Jharkhand HC14 Aug 2024Cr.Rev./721/2016

Case brief

AI extract

What is this about?

Criminal revision challenging conviction under Section 498-A IPC. The Court held that harassment simpliciter does not amount to cruelty and that the charges lacked specificity regarding unlawful demands. Given inconsistencies in witness testimony and unrebutted defence evidence, the concurrent findings were set aside.

What did the court decide?

Revision allowed; impugned judgments set aside; petitioner discharged from bail bond and set at liberty.

Md Kalim Ansari Vs The State Of Jharkhand And Anr. — Dowry and Cruelty | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No. 721 of 2016

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Md. Kalim Ansari, Son of Late Nuruddin Ansari, resident of Sandi, P.O. & P.S. Sikidiri, District Ranchi. …… Petitioner

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Versus

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The State of Jharkhand

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Hasina Khatoon, D/o Anul Hussain, Village- Layo, P.O. & P.S. Ghato, District Ramgarh, Jharkhand ……Opposite Parties

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For the Petitioners : Mrs. Priyanka Agrawal, Advocate For the Opposite Party : Mr. Arup Kumar Dey, A.P.P.

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PRESENT

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HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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JUDGMENT

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C.A.V. On 20.06.2024 Pronounced On: 14 .08 .2024

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Heard learned counsel for the parties.

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Present Criminal Revision is directed against conformation of conviction and sentence of the petitioner for the offence under Section 498-A of the Indian Penal Code by the appellate court vide Judgment dated 8^th September, 2015 passed in Criminal Appeal No. 96 of 2013 by learned Additional Judicial Commissioner XVIII, Ranchi.

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Factual matrix of the case is that informant Hasina Khatoon(P.W. 4) was married with the present petitioner in the year 2006 in accordance with Muslim Rites and Customs. After marriage she joined the company of petitioner at her matrimonial home and one year passed in cordial relations, thereafter the present petitioner and his parents started demanding more money and in that pretext

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she was being assaulted and tortured both mentally and physically hence, she was compelled to reside at her parental home and lodge this case. Several times panchayaties were also convened but of no result.

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On the basis of information Sikidiri P.S. Case No.02 of 2008 was

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registered for the offence under Section 498-A IPC and after completion of investigation charge sheet was submitted against the present petitioner. The petitioner denied the charges leveled against him and claimed to be tried. After conclusion of trial petitioner was held guilty by the learned Judicial Magistrate 1^st Class, Ranchi and sentenced to undergo RI for two and half years alongwith fine of Rs. 5,000/- with default stipulation.

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The petitioner has challenged the aforesaid conviction and sentence passed by learned trial court by preferring Criminal Appeal No. 96 of 2013 before the learned Sessions Judge, Ranchi which was also dismissed and the impugned Judgment and Order passed by learned trial court was confirmed and upheld.

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The petitioner assailing the legality, propriety and correctness of the impugned orders has filed this Criminal Revision mainly on the following grounds:-

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i. Altogether four witnesses were examined by the prosecution who have given different stories regarding day, date and time of any demand of additional dowry. In the FIR itself

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Cr. Rev. No. 721 of 2016

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there was no allegation about the nature of demand and accurate money demanded and when Panchayati was convened.

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ii. The brother of the informant (P.W. 2), namely, Kalam Hussain has himself admitted that due to second marriage of the informant with the petitioner she could not adjust in the family of the petitioner, resultantly, Talak was taken in Khulla form by the informant.

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iii. P.W. 3 happens to be the father of the informant. P.W. 1, Anwar Ansari is also relative of the informant and P.W. 4 is the informant herself.

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iv. On the other hand the petitioner has also examined two witnesses who have categorically proved that the informant was desiring to live at her parental home alongwith her husband (petitioner) which was not acceded by the petitioner hence, she left the matrimonial home and inspite of attempt made for reconciliation she did not join the company of the petitioner rather took “Khulla” divorce.

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v. No ingredient of offence under Section 498-A IPC has been proved by the prosecution. It is a case instituted only to harass the petitioner as a matter of vengeance.

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vi. In spite of service of notice to the informant through her brother she did not opt to appear in this case to contest.

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vii. The petitioner has remained in custody during investigation and trial about four months.

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Per contra, learned APP appearing for the State defending the impugned Judgment and Order has submitted that there are cogent and reliable evidence against the petitioner constituting the offence under Section 498-A IPC which has been properly analyzed and appreciated by the learned trial court as well as the appellate court and conviction and sentence of the petitioner was upheld. The petitioner has failed to point out material illegality in the impugned Judgment and Order calling for any interference by way of this revision which has no merits and fit to be dismissed.

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I have given the anxious consideration upon the rival submissions made by the parties and perused the records of the case. It is here pertinent to extract the relevant provisions of Section 498-A which runs as under:-

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498A. Husband or relative of husband of a woman subjecting her to cruelty.— Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation .—For the purposes of this section, “cruelty”

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means—

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Cr. Rev. No. 721 of 2016

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(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or,

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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Section 498-A IPC was added by amendment act, 1983 with separate chapter XXA in the Indian Penal Code with avowed object to protect the torment to a lady by her better half or by family members of her husband so as to rebuff the spouse and his family members who disturb or torment the wife to force her family members to fulfill unlawful request of share.

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It is a matter of common experience that most of these complaints under Section 498-A are filed in the heat of moment over trivial issues without proper deliberation.

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In the instant case four witnesses have been examined by the informant in order to substantiate the charge against the petitioner. The charge framed against the petitioner dated 10.04.2008 reads as under.

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5 Cr. Rev. No. 721 of 2016

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“That you on or about the year 2007 to the 30^th day of 2008 at village-Sandi subjected the informant, Hasina Khatoon who is your legally married wife to cruelty”

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The above charge was read over and explained to the accused which he pleaded not guilty and claimed for the trial.

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In order to substantiate the above charge P.W.(1) Anwar Ansari who is maternal uncle of the informant has categorically deposed that earlier informant was married with another person resident of Gorakhpur (U.P) but she didn’t go to her matrimonial home which resulted in Khulla form of divorce, thereafter she was married with the present petitioner, Md. Kalim Ansari in the year 2006. It is further stated that after one year of the marriage her husband started assaulting her and pressurizing to bring some money from her father and used to oust her from matrimonial home and finally in the year 2008 Hasina Khatoon was driven out from her matrimonial home along with her child in her lap. In his cross examination he admits that no demand was made from him nor any treatment for physical assault of the informant was conducted by any medical officer and he can’t tell the day, date or year of any demand of money.

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P.W. 2, Kalam Hussain has stated that accused was subjecting the informant to cruelty and asking Rs. 10,000/- or Rs. 5,000/- at an interval and ultimately, she was driven out from the matrimonial

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6 Cr. Rev. No. 721 of 2016

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home, but in his cross examination he has not stated about any date, day, time or year of the demand of money or any payment made or the nature of cruelty meted with the informant.

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12.P.W. 3 is the father of the informant, who has stated in general terms that there was demand of Rs. 20,000/- or Rs. 10,000/- at some interval, which was disclosed by his daughter but no specific assertion has been made.

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13.Similarly P.W. 4 Hasina Khatoon has also developed her statement in contradiction to her earliest version contained in the FIR stating that her husband was demanding of Rs. 10,000/-, Rs. 5,000/- or Rs, 20,000/- after some interval, which was not fulfilled then she was assaulted and she also gave birth to a male child. The matter could not be reconciled in Panchayat and she was compelled to live at her parental home.

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It further appears that a single question was asked in the statement under Section 313 Cr.p.c. with the petitioner as under:ঋ� सं० 2:-आपके िवॹ� यह साশ है िक आप सूिचका हसीना खातून को उसके पित होने की हैिसयत से अवैध मांग की पूित१ हेतु वष१ 2007 से िदनांक 13.01.2008 के िबच ঁाम सांडी, थाना- िसिकदरी िजला- रांची म७ मानिसक एवं शारीौरक ॺप से ঋतािड़त करते थे I ভा कहना है ?

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उ�र:- जी नहीं

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15.The defence has also examined three witnesses, namely, D.W. 1, Md. Kalim Ansari, has deposed that the informant used to 7 Cr. Rev. No. 721 of 2016

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frequently visit her parental home without permission of the husband and in-laws and she was desiring to keep her husband at her parental home, which was denied by her husband, then she has lodged this false case.

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16.D.W. 2 Prayag Mahto has also stated that there was no demand of any kind of money rather informant used to go at her parental home frequently without permission of her husband and family members and desiring to keep her husband as “Gharjamai”.

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17.D.W. 3, Md. Shamim Ansari has also deposed in the same line that he also attempted to bring the informant at her matrimonial home to join the company of her husband but she was adamant to reside with her husband as a “Gharjamai” at her parental home.

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The testimony of defence witnesses has not been rebutted by prosecution. It is settle principle of law that the revisional Court must be slow in interfering with the concurrent finding of conviction and sentence by the trial court and appellate court but here the said Judgments are found suffering from perversity and non-consideration of totality of circumstances and materials, hence interference is required to set the wrong as right.

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19.In the instant case, the very charge is not satisfying the ingredients of offence under Section 498-A IPC against the petitioner. There is no information to the accused about what he has committed,

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what type of illegal demand was made by him at what point of time and the manner of cruelty committed towards the informant.

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It is trite that proof the “willful conduct” of the petitioner actuating the women to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the accused person as is held by Hon’ble Apex Court in Gurcharan Singh versus State of Punjab reported in (2017) 1 SCC 433.

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Similarly every harassment does not amount to “cruelty” within the meaning of Section 498-A IPC. For the purpose of Section 498-A I.P.C. harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a women or any other person related to her to meet an unlawful demand for property etc, that its amount to “cruelty” punishable under Section 498-A IPC.

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In the instant case the allegation imputed against the petitioner and stated in the testimony of witnesses does not fall within any of the category of cruelty as defined and explained under Section 498-A IPC. Moreover, the charge is also not specific and no incriminating circumstances constituting the offence under Section 498-A IPC has been get explained to the petitioner in his examination under Section 313 Cr.P.C. The learned trial court as

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9 Cr. Rev. No. 721 of 2016

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well as appellate court has failed to appreciate the unrebutted testimony of defence witnesses.

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21.In view of aforesaid discussion and reason, I am of the considered view that both the courts below have committed serious illegality while holding the petitioner as guilty for the offence under Section 498-A IPC and passing sentence against him.

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22.Accordingly, the Judgment passed by the learned trial court and affirmed by the impugned Judgment and order dated 08^th September, 2015 passed by the learned Appellate Court are hereby set aside and this Revision is allowed. Petitioner is on bail hence he is discharge from the liability of bail bond and set at liberty forthwith.

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23.Let the copy of this Order and trial court record be sent back for the information and needful.

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Jharkhand High Court, at Ranchi Date: 14 / 08/2024 Rajnish/- N.A.F.R.

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Cr. Rev. No. 721 of 2016

Md Kalim Ansari v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

Md Kalim Ansari v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What did the court decide?

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