Nazm Alam @ Nizam Ansari vs The State of Jharkhand and Azijan Bibi

R.R. Prasad, J.—This revision application is directed against the judgment and order Dated 7.2.2011, passed by the learned Sessions Judge, Sahibganj in Criminal Appeal No.12 of 2010, whereby learned Sessions Judge while acquitting father-in-law and the mother-in-law, brother-in-law and the first wife of the petitioner affirmed the judgment of conviction and order of sentence dated 17.03.2010, passed by learned Judicial Magistrate, 1st Class, Rajmahal in P.C.R. Case No.204 of 2003, whereby the petitioner (husband of the complainant) on being found guilty for an offence u/s 498A and Section 323 of the Indian Penal Code was awarded sentence to undergo rigorous imprisonment for two years for an offence u/s 498A and to pay a fine of Rs.500/- and further to undergo simple imprisonment for 4 months u/s 323 of the Indian Penal Code. In default of fine to further undergo, simple imprisonment for three months. Learned counsel while assailing the judgment of conviction and order of sentence submitted that though the petitioner (the husband) has been alleged to have demanded dowry and on account of non-fulfillment of the demand of dowry subjected her to cruelty, but all these allegations have been levelled purposely when the petitioner did not agree to the proposal of his wife (the complainant) to drive out his first wife and children from the house and that on similar set of allegations the other accused persons have been acquitted, but the learned trial court without considering the aforesaid fact suggesting towards malicious prosecution passed the order of conviction and sentence which is quite illegal.

Having heard learned counsel appearing for the petitioner and learned counsel for the opposite party No.2 as well us learned counsel for the State and on perusal of the record, I do find that it is the case of the prosecution that this petitioner before marrying the complainant (C.W.5) had married to one Mahmooda and out of their wedlock, the petitioner was having children, but in course of time, the petitioner fell in love with the complainant (C.W. 5) and on promise being given by the petitioner that he will marry the complainant they had had sex with each other.

Further case is that the complainant before marrying this petitioner when conceived, the petitioner gave some medicine, in order to get the pregnancy terminated. Thereafter the petitioner stopped visiting the complainant. Thereupon the father and the brother of the complainant asked this petitioner to marry the complainant, but when the petitioner refused to marry the complainant, the matter was reported to the Police, but the Police did not take any action. However the petitioner upon persuasion agreed to marry the complainant and then marriage got solemnized in between this petitioner and the complainant under the Muslim rites and rituals. When the complainant came to her in-law''s place, the petitioner and other accused persons started harassing her mentally and physically and also demanded Rs.10,000/-. When the matter was informed by the complainant to her father, her father came to pacify the matter, but the accused persons abused in filthy language.

Further case is that on 27.4.2003, the complainant was assaulted by the accused persons and after snatching all the ornaments the complainant was driven out of the house.

In support of the prosecution case, six witnesses mostly the family members of the complainant, were examined The trial court after appreciating the evidences adduced on behalf of the prosecution (complainant) did find the petitioner and other accused persons guilty for the offences u/s 498A and Section 323 also. However, when the appeal was preferred, the other accused persons were acquitted whereas judgment of conviction and order of sentence was affirmed as it was found by the learned appellate court that accusation of demand of dowry and subjection to cruelty against the accused other than the petitioner does not find corroboration. This finding could not be assailed and as such, there is no difficulty in accepting this finding. So far as the submission made on behalf of the petitioner with respect to prosecution being malicious one for the reason that the complainant wanted that the petitioner should drive out his first wife along with the children, but when she was not driven out of the house the complaint was lodged, is concerned no evidence whatsoever has been laid in this respect though suggestion in this regard has been made to the witnesses, but it is devoid of any evidentiary value. If it was specific case of the defence then the defence should have laid evidence in this respect. Since no evidence is there the case of malicious prosecution which has been tried to be made, at this stage cannot be accepted. Thus, I do not find any illegality with the judgment of conviction and hence, it is confirmed.

However, keeping in view the fact that the petitioner is facing rigour of the trial since 2003, ends of justice would be met, if the appellant is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- for an offence u/s 498 of the Indian Penal Code. Accordingly he is sentenced and so far as sentence imposed u/s 323 is concerned that would remain intact. With the aforesaid modification in the order of sentence, this revision application stands dismissed.