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Judgment
Heard Mr. Ranjan Kumar Singh, the learned counsel appearing on behalf of the petitioner.
Heard Mr. Ashok Kumar Singh, learned A.P.P. appearing on behalf of the Opposite Party-State.
The present criminal revision petition is directed against the Judgment dated 02.09.2014 passed by the learned Principal Sessions Judge, Pakur in Criminal Appeal No. 07/2014 whereby the learned appellate court affirmed the Judgment of conviction and the order of sentence passed by the learned trial court and dismissed the appeal.
The criminal appeal was preferred against the Judgment of conviction and the order of sentence dated 30.01.2014 passed by the learned S.D.J.M., Pakur in P.C.R. Case No. 310 of 2006 / T.R. No. 74 of 2014 whereby the petitioner was held guilty and convicted for committing the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years and a fine of Rs.10,000/- and in default of payment of fine, he was directed to undergo additional imprisonment for six months.
Arguments on behalf of the petitioner
Learned counsel for the petitioner while assailing the impugned judgments submitted that the petitioner has been convicted for offence under Section 498A of the Indian Penal Code and the Exhibit-A which is related to Khula talak executed on 22.08.2001, has not been properly considered and admittedly, the date of alleged incident in the present case is much after that date. He submitted that as per the case of the prosecution, the date of marriage is 08.02.2000 based on the decision of Panchayat as the informant was said to have illicit relationship with the petitioner and the Complaint was filed after five years of divorce i.e. on 12.09.2006.
Learned counsel also submitted that the present offence is the first offence of the petitioner and the learned court below has not properly considered the provision of Probation of Offenders Act, 1958 and accordingly, without prejudice to the submissions on merit, this is a fit case in which the petitioner should be released upon furnishing bond under the provision of Probation of Offenders Act, 1958. He also submitted that the petitioner has remained in jail custody for a period from 12.11.2014 to at least 18.02.2015 when the petitioner was admitted on bail during pendency of this criminal revision application.
Arguments on behalf of the Opposite Party-State
Learned counsel for the Opposite Party-State opposed the prayer and submitted that the learned courts below have meticulously considered the evidence including Exhibit-A in connection with the claims of the petitioner that he had divorced the informant on 22.08.2001 and have rejected the plea of divorce by speaking orders. He further submitted that there has been a second child of the parties after 22.08.2001. He also submitted that the learned courts below have also considered Exhibit-1 which is of the year 2005 i.e. the Kabilnama. He submitted that there are consistent findings of the learned courts below and accordingly, there is no ground for interference in revisional jurisdiction. He also submitted that the provision of Probation of Offenders Act, 1958 has been considered by the learned trial court and the learned trial court has refused to give that benefit to the petitioner by passing a well-reasoned order of sentence which has been upheld by the learned appellate court.
Findings of this Court
After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on a Complaint Petition being P.C.R. Case No. 310 of 2006 presented on 12.09.2006 by the Complainant namely, Hena Bibi against the petitioner and Mastara Bibi (first wife of petitioner) alleging inter-alia that she was the legally married wife of the petitioner and their marriage was solemnised on 08.02.2000 as per Muslim rites and customs as per decisions of the panchayat held on the same day due to illicit relation between them and after the marriage, she led happy conjugal life for more than one and half years in presence of the first wife namely, Mastara Bibi and she was blessed with a son namely, Nabab Serajul.
It was alleged that on the instigation of his first wife, the petitioner tortured her physically and mentally and demanded Rs.10,000/- as he had not got anything from her father at the time of their marriage. Having no alternative, the Complainant took shelter in her parental house and stayed there for a long period without getting any maintenance from the petitioner. After several efforts, the petitioner took her bidai alongwith the child with a promise to keep her properly without any demand or torture.
It was alleged that during this period, the Complainant again became pregnant and the petitioner committed cruelty upon her and again demanded Rs.10,000/-. The Complainant was blessed with another son namely, Elahan Sk. It was alleged that on 20.08.2006 in the morning hours, due to some quarrel with the first wife of the petitioner, the petitioner assaulted the Complainant mercilessly in presence of her parents and others and refused to give shelter to her without giving Rs.10,000/- from her parents.
After enquiry, the learned Judicial Magistrate, Pakur, vide order dated 23.07.2007, found a prima facie case under Section 498A of the Indian Penal Code against the petitioner only and summons was issued to him. After appearance of the petitioner, the Complainant examined 05 witnesses as evidence before charge. Thereafter, charge under Section 498A of the Indian Penal Code was framed against the petitioner which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.
In course of trial, the Complainant examined altogether 05 witnesses in support of her case i.e. CW-1 Imajuddin Sk., CW-2 Sena Sk., CW-3 Hafijuddin Sk., CW-4 Jakaria Sk. who is the father of the Complainant and CW-5 Hena Bibi who is the Complainant herself and exhibited the Kabilnama of the marriage dated 16.12.2005 as Exhibit-1 and the signature of Hafijuddin Sk. (CW-3) On the Kabilnama as Exhibit-1/1.
Thereafter, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the case of the Complainant and claimed to be innocent and the petitioner filed on documentary evidence relating to Khula Talak as Exhibit-A to show that he had already divorced the Complainant prior to the alleged occurrence of the case.
This Court finds that the learned trial court discussed the oral and documentary evidences adduced on behalf of the Complainant as well as the documentary evidence of the defence and summarized its findings in Para-19 and 20 and recorded that the Complainant has given oral evidence that the Kabilnama was prepared in the year 2005 and CW-1 has supported the fact that one paper was prepared in the panchayati which suggests that the marriage paper was prepared after the marriage. This witness has further deposed that after birth of the first child, the Complainant was driven out due to non-fulfilment of the demand of Rs.10,000/- and during this period, the Complainant stayed at her parental house for one and half years and she continued to visit her matrimonial house. CW-2 has also supported the preparation of the marriage paper and thereafter, taken bidai of the Complainant. CW-3 is a formal witness who has exhibited the Kabilnama of marriage as Exhibit-1. CW-4 is the father of the Complainant and he has deposed about his inability to fulfil the demand of Rs.10,000/- and also about the preparation of the marriage paper at the time of taking the Complainant after panchayati. All the witnesses have said that the second son was born after taking bidai of the Complainant. CW-5 is the Complainant herself and she has deposed that her marriage was solemnised in the year 2000 and has fully supported her case stated in her Complaint Petition. She has also stated that the Kabilnama was prepared after the Panchayati and she was assaulted and tortured for demand of Rs.10,000/- and in this respect no cross-examination has been made on behalf of the defence. In cross-examination, she supported that six years ago, she was assaulted and she had received injury and the blouse was torn. She had narrated the incident to her father (CW-4). The learned trial court further recorded that all the prosecution witnesses have denied the suggestion that divorce had taken place on 22.08.2001 and a divorce paper was prepared. The CW- 4, the father of Complainant and CW-1 and CW-2, the independent witnesses have corroborated the allegation that the petitioner had demanded Rs.10,000/-. The petitioner in his statement recorded under Section 313 of Cr.P.C. has not stated that he had given divorce to the Complainant on 22.08.2001, although Exhibit-A has been filed by the petitioner.
Marriage in the 2000 between the petitioner and the complainant is not in dispute. The specific case of the petitioner is that he had divorced the complainant on 22.08.2001 for which he has produced exhibit-A. The story of divorce has been denied by the complainant and her specific case is that Kabilnama i.e marriage paper was prepared in the year 2005 in the panchayati and thereafter the complainant was again taken to her matrimonial home by the petitioner where she gave birth to second child and thereafter the petitioner again demanded dowry of Rs.10,000/- and threw her out of the matrimonial house.
This Court finds that the learned trial court passed a detailed judgement considering the claim of divorce by the petitioner on 22.08.2001 and the divorce paper (Exhibit-A) and also considered the fact that Kabilnama i.e. marriage paper was prepared in the year 2005 in the panchayati which suggested that the marriage paper was prepared after the marriage and thereafter the complainant was taken to her matrimonial home by the petitioner where she gave birth to second child. The learned trial court rejected the claim of divorce by the petitioner on 22.08.2001 and the divorce paper (Exhibit-A).
This Court further finds that the learned appellate court also considered the evidence adduced on behalf of the Complainant and the defence and the arguments of both the parties and summarized its findings in Para-17 and held as under: - a. The petitioner was married with the complainant in the year 2000, as per decision of the panchayat, which was held on the same day, due to illicit relation between them. This was the second marriage of the petitioner.
b. It is an admitted fact that the complainant was blessed with a male child.
c. Thereafter, the petitioner subjected cruelty upon the complainant, mentally and physically and demanded Rs.10,000/-, then she had to take shelter at her parent's home.
d. With the intervention of the panchayat, the petitioner took her bidai alongwith male child with a promise to keep her well without having any demand or torture after executing Kabilnama (Ext.-1).
e. Complainant gave birth to the second child after bidai.
f. Again, the petitioner started assaulting her due to non- fulfilment of the demand of Rs.10,000/-.
g. The argument of the petitioner with respect to divorce (talak) Exhibit -A has been considered by the learned appellate court also and has been rejected by a well- reasoned finding stating that on the one hand from perusal of this document, it appears that there is no signature of the petitioner and if the said Ext.-A is found to be true, that the talaque took place in between the complainant and the petitioner, then under what circumstances, the complainant gave birth to another male child in the house of petitioner, who was aged about one and half months old at the time filling complaint petition. The learned appellate court considered these circumstances as well as other circumstances and held that there was no talaque between the complainant and the petitioner. The appellate court also found that it is true that there is some contradiction in evidence, but are not material and therefore, evidence of PW-1 to 5 cannot be brushed aside in this case on this score.
h. The learned appellate court ultimately held as follows:-
"....................I further find and hold that in the instant case, the evidence about physical and mental torture upon complainant have come from mouth of her father and independent witnesses as well as by herself, appears worthy of credence. I further find and hold that evidence in this case reveals an act of extreme form of cruelty committed by appellant with complainant. As a matter of fact, such act, to say least were very unkind and a woman is bound to suffer great mental pain and humiliation. The evidence adduced on behalf of the prosecution clearly establishes that complainant had been subjected of physical and mental torture all throughout. Thus, I find and hold that complainant is legally wife of the appellant on the day of occurrence, having two children. I further find and hold that cruelty and harassment, as stated by the prosecution witnesses, has been well proved by prosecution, beyond the shadow of all reasonable doubts and rightly come on conclusion to find the appellant guilty u/s 498A IPC. ..........."
This Court finds that the Complainant (CW-5) is admittedly the second wife of the petitioner and the Complainant has been able to prove her case that the petitioner had demanded dowry of Rs.10,000/- from her and when the amount was not paid, the petitioner assaulted and tortured her physically and mentally and drove her out of her matrimonial house. CW-4, who is the father of the Complainant and CW-1 and CW-2 who are the independent witnesses have fully corroborated the allegations against the petitioner and has fully supported the case of the Complainant. The defence of the petitioner claiming divorce in the year 2001 has been rejected by the learned courts below by well-reasoned findings after considering all the materials on record.
This Court finds that both the learned courts below have carefully scrutinized the evidences of the witnesses adduced on behalf of the parties and have recorded concurrent findings of facts and have found sufficient evidence for conviction of the petitioner under Sections 498A of the Indian Penal Code. This Court does not find any illegality or perversity in the Judgments of conviction passed by the learned courts below calling for any interference under revisional jurisdiction.
This Court further finds that the learned trial court has already considered and rejected the pleading advanced on behalf of the petitioner to release him on bond under the provision of Probation of Offenders Act, 1958. Considering the nature of evidence available on record against the petitioner and the nature of offence, this Court is not inclined to give benefit of the provisions under the Probation of Offenders Act, 1958. This Court is of the considered view that considering the nature of allegation and in the manner, it has been committed by the petitioner with the complainant with two children, the petitioner does not deserve any reduction in sentence also.
Accordingly, the conviction and sentence of the petitioner for offence under Section 498(A) of the Indian Penal Code is upheld and this criminal revision petition is hereby dismissed.
Interim order, if any, stands vacated.
The bail bond furnished by the petitioner is hereby cancelled.
Pending interlocutory application, if any, is also dismissed as not pressed.
Let the Lower Court Records be immediately sent back to the court concerned.
Let a copy of this order be communicated to the learned court below through "FAX/Email".