Mussarat Begum vs State Of Delhi & Ors.
2009 Latest Caselaw 4575 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on: 3rd November ,2009
                    Judgment Delivered on: 10th November, 2009


+               CRL.REV.P.851/2002 & CRL.M.A.No. 1087/2002


        MUSSARAT BEGUM                        ..... Petitioner
                     Through:         None.


                          Versus


        STATE OF DELHI & ORS.                  ..... Respondents
                       Through:       Mr.Manoj Ohri, APP for the
                                      State.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the Digest?
                                                   Yes

INDERMEET KAUR, J.

1. FIR No.422/87 had been registered at police station

Seelampur under Section 498A/406/34 IPC on the complaint of

Mussarat Begum against five persons namely her husband

Mohd.Yunus, her father-in-law Sultan Ahmed, her mother-in-law

Sugra Begum, her other relatives in-law i.e. Shamim Begum and

Shabnam Begum.

2. Vide judgment dated 9.11.2001 accused Mohd. Yunus and

Sultan Ahmed had been convicted under Sections 498A/406/34

of the IPC; accused Sugra Begum had been convicted under

Section 498A of the IPC; accused Shamim Begum and Shabnam

Begum had been acquitted. Vide order of sentence dated

21.11.2001 considering their old age and their medical condition

Sultan Ahmed and Sugra Begum had been granted the benefit of

probation and had been released on probation on their furnishing

a personal bond in the sum of Rs.10,000/- each with one surety

of the like amount for a period of one year; they had been

directed to pay Rs.2000/- each as costs of the proceedings.

Convict Mohd.Yunus had been sentenced to undergo RI for one

year for the offence under Section 498A of the IPC and a fine of

Rs.1000/-, in default of payment of fine RI for two months; for the

offence under Section 406 of the IPC he had been sentenced to

undergo RI for one year and fine of Rs.500/-, in default of

payment of fine RI for one month.

3. Present revision petition has been filed under Sections

397/401 of the IPC impugning the said order. It is submitted that

the sentence awarded to the three convicts should be enhanced;

Sultan Ahmed and Sugra Begum could not have been released

on probation; jewellery articles of the complainant also be

directed to be returned back to her.

4. Along with the revision petition an application seeking

condonation of delay in preferring this revision petition has also

been filed. In the body of this application, it is stated that after

the impugned judgment had been passed the State was

deliberating as to whether an appeal should be filed or not;

ultimately on 2.5.2002 it was decided that the State was not

interested in preferring an appeal; complainant had also fallen ill

for a considerable time which has resulted in a delay of three

months in filing the present revision.

5. Respondents had put in appearance but thereafter they

chose not to appear.

6. In view of the averments made in the present application,

keeping in view the submission that the petitioner is an illiterate

and destitute lady and the delay in preferring the appeal was

primarily for the reason that the State was yet considering the

prospect of preferring an appeal against the impugned

judgment; there also being no opposition to this application, in

the interest of justice and in the broader interest of fair play, the

delay in filing the present petition is condoned.

7. On behalf of the petitioner on 26.10.2009 arguments had

been addressed in part. It had been submitted that the Trial

Court has no power to order probation; attention had been drawn

to Sections 29 & 30 of the Cr.P.C. which deals with the sentences

which a magistrate may pass which includes imprisonment in

default of fine; it is submitted that there is no provision in the

Code by virtue of which the magistrate could have released

Sultan Ahmed and Sugra Begum on probation. The prima facie

evidence disclosed before the Trial Court, in view of the version

of PW-1, was for an offence under Section 314 of the IPC i.e. the

death caused by an act done with an intent to cause mis-

carriage; in these circumstances, it was incumbent upon the

magistrate to have committed the case before the Sessions

Judge; procedure of Sections 321 & 322 of the Cr. P.C. has not

been adhered to.

8. Counsel for the State while countering the arguments has

drawn the attention of the Court to the provisions of Section 465

of the Cr. P.C.; it is submitted that the finding or sentence passed

by a Court of competent jurisdiction can be reversed or altered

by a Court of appeal only where failure of justice has been

occasioned; this is not so in this case. Attention has also been

drawn to the powers of this Court to grant probation under

Section 360 of the Cr.P.C. as also the provisions of Section 4 of

the Probation of Offender Act 1958.

9. Record has been perused.

10. Trial Court has drawn its conclusion primarily on the

version of complainant i.e. Mussarat Begum who had been

examined as PW-1. PW-1 had been married to Mohd.Yunus on

9.1.1983 as per muslim rites. As per her testimony she had been

harassed on account of dowry; her inadequacy in bringing a T.V.,

fridge and scooter had been the reason for the taunts inflicted

upon her. Her husband i.e. Mohd.Yunus and her father-in-law

Sultan Ahmed inflicted cruelty upon her, both mental and

physical. Sultan Ahmed had also hit on her head. She had given

her complaint to the CAW Cell Ex.PW-2/A. It has come in the

version of PW-1 that accused Shabnam and Shamim were not

related to Mohd.Yunus. They not falling in the category of

'relatives' of the husband of PW-1. Trial Court had acquitted

them of the charges leveled against them. Previous statement

Ex.PW-2/DA given before the Investigating Officer had been

confronted to PW-1 qua the entrustment of dowry articles; on

this version accused Sugra Begum was acquitted of the offence

punishable under Section 406 of the IPC.

11. Conclusion and findings of the Trial Court are based on

clear and cogent evidence. The conviction of the accused is not

under challenge. The grievance of the complainant is that this

Court has no power to release the in-laws of the victim namely

Sultan Ahmed and Sugra Begum on probation. This submission

of the complainant is erroneous. Powers of the Court to release

a convict on probation is well contained in Section 360 of the Cr.

P.C; it categorically recites that when any person not under

twenty-one years of the age is convicted of an offence

punishable with fine only or with imprisonment for a term of

seven years or less or when any person under twenty-one years

of age or any woman is convicted; as is in the instant case

benefit of probation may be granted. It is clear that this Court

has power to release a convict on probation of good conduct or

after a due admonition.

12. Section 4 of the Probation of Offeners Act 1958 also

empowers the Court to release certain offenders on probation of

good conduct which includes those persons who are found guilty

of offences not punishable with death or imprisonment for life.

Due regard to the nature of the offence, character of the

offender has to be taken into account. This submission of the

learned defence counsel has no force.

13. The alternate prayer that Mohd.Yunus should have been

convicted for a graver offence i.e. for an offence under Section

314 of the IPC is also without force; this Court cannot convict a

person for a graver offence than the offence for which he had

faced charge in the Trial Court. Under Section 465 of the Cr.P.C.

a finding or sentence by a Court of competent jurisdiction shall

be reserved, altered by a Court of appeal only when a failure of

justice has, in fact, been occasioned. This is not so in this case.

Trial Court had with due regard to the antecedents of the

convict, the background of the case exercised its discretion and

sentenced Mohd.Yunus to undergo RI for a period of one year for

the offence under Section 498A of the IPC as also one year for

the offence under Section 406 of the IPC besides fine; both the

sentences were to run concurrently. The sentence calls for no

interference.

14. This Court is not empowered to direct the respondent to

pay a sum of Rs.2 lacs to the complainant in lieu of her Stridhan

articles; this is outside the jurisdiction of this Court.

15. Revision petition has no merit; it is dismissed.

16. Trial Court record be returned back.

(INDERMEET KAUR) JUDGE 10th November, 2009 nandan