Bombay High Court
Jahirkhan @ Sanju Sujatkhan ... vs State Of Mah.Thr.Pso Chandrapur on 7 August, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.17/2006
1. Jahirkhan alias Sanju s/o Sujatkhan
Pathan, aged 40 yers, Occ. Lecturer.
2. Smt. Munifa w/o Sujatkhan Pathan,
aged 63 years, Occ. Nil,
Both r/o Chandrapur, Tq. Dist.
Chandrapur. .....APPLICANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, P.S. Ramnagar,
Chandrapur. ...NON APPLICANT
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Mr. A.V.Guta, Senior Advocate with Mr. K.Patel, Advocate for
applicant no.1.
Mr. M. J. Khan, A.P.P. for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 07.08.2017
J U D G M E N T
1. The present applicants were convicted by the learned
Chief Judicial Magistrate, Chandrapur on 11.01.2002 in Regular
Criminal Case No.124/1999 for an offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code. For
the said offence, applicant-Jahirkhan was directed to suffer simple
imprisonment for six months and to pay a fine of Rs.1,000/- in
default to suffer rigorous imprisonment for one month.
Though applicant no.2-Munifa was convicted, she being
an old lady, instead of sentencing at once, the learned Chief
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Judicial Magistrate released her on bond of good behaviour of
Rs.5,000/- for a period of six months under the provisions of
Section 4 of the Probation of Offenders Act.
The applicant no.1 was also convicted for the offence
punishable under Section 494 of the IPC and for the said offence,
he was directed to suffer simple imprisonment for six months and
to pay a fine of Rs.1,000/- and in default to suffer rigorous
imprisonment for one month.
Against the said conviction, an appeal was carried
before the learned Sessions Judge, Chandrapur. The appeal was
registered as Criminal Appeal No.4/2002. The learned 4 th Ad hoc
Additional Sessions Judge, Chandrapur vide judgment dated
09.01.2006 partly allowed the said appeal and thereby
maintained the conviction and order of sentence for the offence
punishable under Section 498-A read with Section 34 of the IPC.
However, the applicant was acquitted of the offence punishable
under Section 494 of the IPC. Hence, this revision.
2. I have heard Mr. Avinash Gupta, learned Senior
Advocate with Mr. Kartik Patel, Advocate for applicant and Mr.
M.J. Khan, A.P.P. for the non applicant-State.
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3. Though formal order of abatement is not passed in this
revision, the applicant no.2-Munifa has expired on 21.08.2008.
The death certificate is filed on record.
4. Kaisar Anjum (PW1) is the wife of applicant no.1 and
she is the first informant. She lodged her report Exh.-18 with
Police Station Officer, Gondia. As per the report, the marriage
between her and applicant no.1 was solemnized on 22.05.1997 at
Gondia as per Muslim rites. According to the FIR, prior to her
marriage, applicant no.1 was already married and since the
demand for dowry was not fulfilled, he gave divorce to his first
wife and she is not aware about what happened to his first wife.
The FIR further states that applicant no.1 and his mother used to
demand gold chain, motorcycle and plot and also that the articles
which she has received from her parents are of inferior quality. It
is also stated in the FIR that since they noticed that their demand
for dowry is not going to be fulfilled, they forcefully sent her to
her parental house in November-1997. It is also stated in the FIR
that thereafter the applicant no.1 performed another marriage on
07.06.1998.
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5. To prove its case, the prosecution has examined in all
five witnesses. Complainant-Kaisar Anjum is PW1, her brothers
Nisar Ahmed Khan is PW2 and Iqbal Ahmed Khan is PW3. Baburao
Zade, the investigating officer is PW4 and Sharda Ramteke, the
landlord in whose house during the relevant time the complainant
used to reside is PW5.
6. Normally, the revisional Court should not appreciate
the evidence. However, if it is pointed out to the revisional court
that appreciation at the hands of the courts below is such that it
has resulted into the perverse finding then in my view the Court
should not abdicate its duty even to look into the evidence brought
on record.
As per the evidence of Kaisar Anjum (PW1), after
solemnization of the marriage at the time of leaving the Barat,
both the applicants insisted that they will not take the presents
and articles which were given in the marriage. In fact, as per the
evidence of Kaisar Anjum (PW1), they were insisting her parents
to give gold chain, motorcycle and plot. Thus at the time of
leaving the marriage hall, as per the evidence of Kaisar Anjum, a
demand was made by the complainant to her parents. To
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corroborate this version, it was expected from the prosecution to
examine her parents in respect of the said demand. However, for
the reason best known to the prosecution, the parents to whom
the demand was made are not examined.
7. The evidence of complainant-Kaisar Anjum shows that
after the marriage they went to Amravati and in fact the family
members of the applicant arranged the reception at Amravati. As
per the prosecution, she was to be taken at Chandrapur instead
the Barat was taken to Amravati. This, in my view, is hardly
relevant to prove the charge under Section 498-A of the IPC
especially when even according to the complainant, her brothers,
the family members of applicant arranged reception at Amravati.
8. According to the further evidence, during their stay at
Amravati, the applicants were saying that enough articles are not
given to them by the parents of complainant. Also, articles which
are given are of inferior quality, is the evidence of Kaisar (PW1).
From the aforesaid evidence, it is clear that there was
no demand to her by the applicants that she should obtain more
articles. Further on this Kaisar Anjum, the complainant did not
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find corroboration from her brother Nisar Ahmed (PW2) whereas
the evidence of Iqubal Ahmed (PW3) the other brother shows that
the demand was from the applicant no.2 and not from the
applicant no.1.
It is further version of Kaisar Anjum (PW1) that when
the applicant had been to Gondia for taking her to her
matrimonial house that time, applicant no.1 insisted her parents
that the plot should be purchased for him. As observed above, the
parents were not examined. Further, her brothers Nisar Ahmed
Khan (PW2) and Iqbal Ahmed Khan (PW3) are not supporting at
all to this version of the complainant.
9. It is further version of the complainant from the witness
box that the elder brother of the accused brought all marriage
articles at Chandrapur. It is further version of the complainant
that both the applicants were not talking with her. They were not
providing the foods and were causing trouble to her. However, it
is found to be an improvement which is duly proved by the
investigating officer Baburao Zade (PW4).
The further evidence of the complainant shows that one
month thereafter applicant no.1, his brother and his wife came to
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Gondia and that time they persisted demanding the articles with
the complainant. However, Nisar Ahmed Khan (PW2) and Iqbal
Ahmed Khan (PW3) are stating that the applicant no.1 did not
come but applicant no.2 his mother came at Gondia along with
applicant no.1's elder brother and his wife. Thus, on the presence
of the applicant no.1 itself there is variance in between the
prosecution witnesses.
The other evidence of the complainant in respect of
"Aise kahi jalte hai aur kahi marte hai" is found to be an
improvement duly proved by the investigating officer.
In examination-in-chief itself the complainant deposed
that in fact her brother took her to Gondia. It is contrary to the
assertions which she had made in Exh.-50 FIR that she is driven
out of the house.
Sharda Ramteke (PW5) in whose house the applicant
was a tenant and he used to reside along with the complainant
states that during the stay, she found that they were living
properly.
10. With such type of evidence available on record, in my
view, the Court below has committed serious mistake at law in
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convicting the applicant for the offence punishable under Section
498-A of the IPC. Hence, following order is passed.
ORDER
(i) Criminal Revision No. 17/2006 is allowed.
(ii) Judgment and order dated 09.01.2006 in Criminal
Appeal No.4/2002 passed by 4th Ad hoc Additional Sessions Judge,
Chandrapur thereby convicting the applicant-Jahirkhan @ Sanju
s/o Sujatkhan Pathan for the offence punishable under Section
498-A read with Section 34 of the IPC is quashed and set aside.
(iii) The applicant is acquitted of the offence punishable
under Section 498-A of the IPC.
(iv) Bail bonds of the applicant stands cancelled.
JUDGE
kahale
