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Judgment
D.K. Sinha, J.—This Criminal Revision application is directed against the Judgment dated 22.3.2007 passed by Sri. Ashok Kumar Mishra, Additional Sessions Judge, F.T.C. No. III Dhanbad by which Cr.Appeal No. 62 of 1999 preferred by the petitioners was dismissed by upholding the judgment of their conviction and order of sentence recorded by Shri A.N. Dubey, Judicial Magistrate, Dhanbad on 11.5.1999 u/s 498A IPC and Section 4 of the Dowry Prohibition Act and sentence of imprisonment.
The prosecution story in short was that the complainant-opposite party No. 2 presented a complaint case No. 179 of 1998 before the CJM, Dhanbad by narrating interalia that she was married to the petitioner No. 1 Rustam Ali Ansari on 28.3.1985 and thereafter she was taken to her matrimonial home where she had been leading a happy married life. She alleged that after one year her husband Rustam Ali Ansari and other in-laws started demanding steel Almirah in kind and Rs. 10,000/- In cash to be brought from her parental home on the instigation of the petitioner Israil Mian. The petitioners used to threaten to fulfill their demand lest her husband would be married to another girl from where they would fetch more money. She was assaulted by the petitioners at several occasions and used to be occasionally confined in a room without food and water. She was ultimately driven out. It was alleged that during her absence, the petitioner-husband Rustam Ali Ansari re-married to another girl in the month of October, 1988. The father of complainant tried to resolve the matter with the help and intervention of the communitv people but of no avail. Thereafter the complainant-wife preferred a petition u/s 125 Cr. P.C. for grant of monthly maintenance on 7.2.1989 and during pendency of such proceeding, finding no way out, she filed the complaint case which was sent for institution of police case, accordingly, Topchanchi (Hariharpur) P.S.Case No. 118 of 1989 was instituted and the Investigating Officer submitted charge sheet for the alleged offence under Sections 498A/494 of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act against the appellants and another.
The Learned Counsel appearing for the petitioners contended that the charge before the Judicial Magistrate was framed against the petitioners u/s 498A/494 of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act but the appellants could be convicted only u/s 498A of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years each. They were further convicted u/s 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for three months each. Both the sentences were directed to run concurrently.
Having been aggrieved and dissatisfied with the judgment and order passed by the Trial Magistrate the petitioners preferred Criminal Appeal No. 62 of 1999. The Learned Counsel contended that the Appellate court without appreciation of the defence of the petitioners and ignoring that there was absolutely no material on the record held them guilty affirming the judgment of conviction and order of sentence passed against each of them. The Appellate court had jurisdiction to enter Into domain of the merit of the case by re-appraisal of the evidence adduced on behalf of the prosecution but the learned appellate court without discussing the merit and following the observation made by the Trial Magistrate, dismissed the appeal by observing that nothing could be elicited In the cross-examination of the witnesses to disbelieve the testimony of the prosecution witnesses and further held that the prosecution could be able to prove Its case. The Learned Counsel submitted that the petitioners have been highly prejudiced for the reasons that almost all the prosecution witnesses were partitioned and interested in nature and their testimony could not be scrutinized either by the trial court or by the appellate court which led to miscarriage of justice and hence the instant Cr. Revision.
Advancing his arguments the Learned Counsel contended that the complainant-P.W. 3 herself was not inclined to reside and join the society of the petitioner-husband. She admitted In her statement that she was leading happy conjugal life for two years but thereafter there was demand of Rs. 10,000/- and a steel Almirah to be brought from her parental home and such allegation was mainly directed against the husband as he was the ultimate beneficiary, if at all any alleged demand was made though denied. The other witnesses such as P.W. 1 and P.W. 2 i.e. the father and mother of the complainant did not fully corroborate the statement of the complainant and that no independent witness could be produced on behalf of the prosecution on the factum of alleged demand of dowry. The prosecution witnesses were not consistent at all on the Issue as to whether the complainant was residing at Hariharpur or at Bokaro at the relevant time of alleged expulsion. Some of the witnesses testified that she was taken away by the husband to Bokaro from her matrimonial home but some of them had contrary view that she was driven out from her matrimonial home at Hariharpur. No injury report of the assault of any kind as alleged by the complainant could be produced on the record in support of the allegation that she was subjected to constant assault by some of the petitioners. The petitioner No. 1 Rustam Ali Ansari is the husband, petitioner No. 2 Hameedan Bibi @ Majeedan Bibi is the mother-in-law and Petitioner No. 3 Israil Ansari @Issrail Mian is the maternal uncle of the husband of the complainant- O.P. No. 2. The father- In- law of the complainant was also convicted for the said charges and that he had joined the appellants i.e. the petitioners herein in the said appeal which was dismissed by the judgment recorded In the Cr. Appeal No. 62 of 1999. He along with others preferred the instant Criminal Revision but died during its pendency, as such, his name was deleted from the cause title of the Criminal Revision vide order dated 18.2.2010 and the petitioner Israil Ansari @ Israil Mian was numbered as Petitioner No. 3.The Learned Counsel finally contended that the petitioner No. 2 Hameedan Bibi @ Majeedan Bibi and the petitioner No. 3 Israil Mian were neither the ultimate beneficiary of alleged demand of Rs. 10,000/- in cash and a steel almirah as both were residing separately at Bokaro, nor had anything to do with their family affairs. The prosecution failed to prove that any alleged demand of dowry was made after she had finally left her matrimonial home in the year 1987.
On the other hand the Learned Counsel appearing for the O.P. No. 2 opposed the contention and submitted that the Trial Court as also the appellate court were consistent in holding the petitioners guilty for the alleged charge under Sections 498A IPC and u/s 4 of the Dowry Prohibition Act and that the finding of both the courts was based upon reasoning. The prosecution witnesses No. 1,2 and 3 were consistent in their testimony that the petitioners had been demanding dowry in cash and kind and in this connection the complainant Naquiba Khatoon was assaulted by her husband and driven out. The allegations against the other petitioners and father-in-law was almost similar, the latter died during pendency of this Cr.Revision.
On consideration of the submissions made on behalf of the parties; perusal of the record and the impugned judgments I find that the conviction of the petitioners is based upon the testimony of the complainant- O.P.No. 2 which was corroborated by the evidence of his parents i.e. P.W. 1 and P.W. 2. The complainant Naquiba Khatoon who was examined as P.W. 3, admitted that her marriage was solemnized with the petitioner No. 1 Rustam Ali Ansari according to the Muslim customs and after marriage she remained at her matrimonial home peacefully for two years. She alleged against her mother-in-law and father-in-law that they had been demanding Rs. 10,000/- in cash and a steel almirah in kind and in this connection they had been perpetrating torture by assaulting her. She however explained that her father on account of poverty was unable to fulfill their demand. After two years she was taken to Bokaro by her husband where she was subjected to harassment and cruelty in different manner at his hands. He reiterated his demand of Rs. 10,000/- In cash and a steel almirah in kind to be brought from her parents, he threatened lest would remarry to another girl and ultimately she was driven out by him. She was having a small son from the petitioner Rustam Ali Ansari. She remained at Bokaro with her husband only for 15 days and thereafter she was driven out and in her absence her husband Rustam Ali Ansari re-married to another girl. So long as she remained at Hariharpur, her father-in-law and mother-in-law had been extending torture but she did not complain her misery to any one even at the police station. She admitted that the sister of her husband was married to her brother but now she was not inclined to reside with and join the society of her husband RustamAli Ansari inspite of his undertaking if at ail in writing. She admitted that she never visited the place again where her husband used to reside with his second wife and that a Muslim husband cannot remarry to another girl without permission of his first wife according to custom and that she did not want to live with her husband as he remarried to another girl.
I find from the testimony of this witness that inspite of opportunity to the defence no cross-examination was made to her on the allegation of assault or torture in her statement, alleged to be perpetrated by the husband. Yet, when called upon, she admitted that her husband was sometimes was asked by his employer to do night duty. I further find that the statement of the prosecutrix regarding allegation of torture and assault in connection with demand of Rs. 10,000/- in cash and a steel almiray in kind against the petitioners could not be demolished and she stood affirmed The father P.W. 1 Rustam Ansari and the mother P.W. 2 Kulsum Bibi were consistent in their evidence that it was the husband petitioner Rustam Ali Ansari who had been demanding dowry and perpetrating torture to their daughter and that Naquiba Khatoon had been living with them at her parental home for the last seven years. The complainant Naquiba Khatoon finally admitted that it was her husband who had been extending torture for dowry. The other witnesses such as P.W. 4 Gulam Mustafa, P.W. 5 Md. Kalimuddin, P.W. 7 Md.Muktar Ansari and P.W. 8 Samsuddin were consistent about the panchayatl held for the resolution of the disputes and rehabilitation of the complainant and restoration of relationship. I find from the fact and statement of the witnesses that no specific allegation was directed against the mother-in-law and the uncle-in-law I.e. the petitioner No. 2 and 3 respectively for the alleged offence u/s 498A of the Indian Penal Code as also u/s 4 of the Dowry Prohibition Act. Marriage of the complainant-opposite party no. 2 with the petitioner No. 1 Rustam Ali Ansari is not disputed and it is further not disputed that after two years of her marriage she was taken to Bokaro by her husband petitioner No. 1 where he raised demand of Rs. 10,000/- in cash and a steel almirah in kind and in this connection she was subjected to assault by putting pressure and he threatened otherwise to remarry another girl and that only after 15 days of her stay at Bokaro, she was driven out by him and consequently, she took shelter in the house of her cousin and from there she came to her parental home. The complainant''s marriage with the petitioner No. 1 was solemnized on 28th March, 1985 and thereafter she came to her matrimonial home and she remained at her matrimonial home for two years till 1987.The petitioner husband took her to Bokaro in the year 1987 from where she was driven out yet, the complaint was filed on 22.8.1989 after about two years which was ultimately registered as Topchanchi (Hariharpur) P.S. case No. 118 of 1989 on 2.9.1989. She had also almost severed her relationship with the husband Rustam Ali Ansari after she was driven out in the year 1987 with a son in her lap but she failed to explain the delay of two years in institution the case u/s 498A IPC and Section 4 of the Dowry Prohibition Act. There was no eye witness of the occurrence. However, other witnesses were consistent about the panchayati which was held for restoration of relationship which could not be materialized. The complainant admitted that she had initiated a proceeding u/s 125 Cr. P.C. for maintenance from the petitioner husband and during such proceeding she filed the criminal case. It was no where alleged or testified by any of the prosecution witnesses that during the period of her isolation from the society of her husband for long two years or thereafter any demand of cash or kind was made to her. Even no injury report of alleged assault or relevant evidence could be produced. I find that the complainant did not file the complaint case in near proximity of the alleged demand of dowry, assault or when she was driven out. She admitted before the Trial Court that she was not inclined to join the society of her husband even if he would undertake in writing to keep her with all dignity and honour for the reason that he remarried to another girl. To my view it could be the core issue for setting the law in motion against the petitioner No. 1 and Implicating the other petitioners.
The Supreme Court of India in Manju Ram Kalita v. State of Assam reported in 2009 (3) East Cr. C. 321 (SC) after scrutinizing the concurrent findings of the trial court, appellate court and the Revisional Court(H.C) held:
"Cruelty" for the purpose of Section 498A, IPC is to tie established in the context of Section 498A, IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelly continuously/persistently or at least in close proximity of time of lodging the complaint petty quarrels cannot be termed as "cruelty" to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
The instant case required to be examined taking into consideration the aforesaid settled legal provisions. Undoubtedly, there had been complaint by the wife of physical and mental torture upto 1993 when she left the matrimonial home and started living with her father. The complaint of cruelty was lodged by filing an FIR on 23.5.1997 i.e. after four years of leaving the matrimonial home. Mere so, the mental or physical torture was not continuous on the part of the appellant as there is no complaint against him between 1993 to 1997 i.e. leaving the matrimonial home by the wife and performing the second marriage by the husband.
Having regard to the facts and circumstances of this case, discussion made herein before and relying upon the proposition of law referred to above I find that the alleged demand for Rs. 10,000/- in cash and a steel almirah in kind was not a continuous demand raised by the petitioner No. 1 Rustam Ali Ansari as there was no allegation against him that he had put condition before the complainant after remarriage to another girl for her acceptance in his society and that no such demand was raised in future also. Remarrying to another girl/girls to a limited number is permissible under the Muslim customary law, of course, with the consent of the wife which was not obtained in this case from the petitioner and it was the main grievance against the petitioners including the husband which, according to me, did not constitute any criminal offence.
For the reasons stated above, I find and observe that the judgment of conviction and order of sentence recorded against the petitioners by the Trial Magistrate and upheld by the appellate court in Cr. Appeal No. 62 of 1999 cannot be sustained under the law as such, the judgment of conviction and order of sentence recorded by the Trial Magistrate which has been upheld by the appellate court is set aside. The petitioners are acquitted in the instant case and their bail bonds stand discharged. Accordingly, this Cr. Revision is allowed.