Jharkhand High Court
Azim Ansari Son Of Late Zahoor ... vs State Of Jharkhand on 3 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1032 of 2012
Azim Ansari son of Late Zahoor Ansari,
resident of Village- Rajadera, P.O. & P.S. Angara,
District Ranchi ... ... ... Petitioner
-Versus-
State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Ms. Amrita Banerjee, Amicus Curiae
For the State : Mr. Shekhar Sinha, A.P.P.
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Through Video Conferencing
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13/03.09.2021 Heard Ms. Amrita Banerjee, the learned Amicus
Curiae appearing on behalf of the petitioner-husband.
2. Heard Mr. Shekhar Sinha, the learned A.P.P. appearing
on behalf of the Opposite Party-State.
3. The present criminal revision petition is directed against
the Judgment dated 11.10.2012 passed by the learned Judicial
Commissioner-IX, Ranchi in Criminal Appeal No. 40 of 2012
whereby and whereunder the learned appellate court
confirmed the conviction and sentence of the petitioner under
Sections 498A, 323 and 341 of the Indian Penal Code passed by
the learned trial court.
4. The learned trial court, vide Judgment of conviction and
the order of sentence dated 23.01.2012 passed by the learned
Judicial Magistrate, 1st Class, Ranchi in G.R. Case No. 706 of
2005 / T.R No. 398 of 2012 (arising out of Angara P.S. Case No.
10/2005 dated 07.03.2005), had convicted the petitioner and
four others under Sections 498A, 323 and 341 of the Indian
Penal Code and had sentenced them to undergo Rigorous
Imprisonment for 02 Years with fine of Rs.2,000/- each and in
default of payment of fine, to undergo Simple Imprisonment for
one month for the offence under Section 498A of the Indian
Penal Code, Simple Imprisonment for six months under Section
341 of the Indian Penal Code and Simple Imprisonment for six
months under Section 323 of the Indian Penal Code and all the
sentences were directed to run concurrently and the period
undergone in judicial custody by the convicts was directed to
be set off.
Arguments on behalf of the petitioner
5. The learned amicus curiae appearing for the petitioner,
while advancing her arguments, submitted that the petitioner is
the husband of the informant and marriage of the petitioner
was solemnized with the informant on 14.04.2003 and out of the
wedlock, three children were born and the case was filed on
07.03.2005. She further submitted that as per the allegations,
there was demand of Rs.50,000/-, one motorcycle and one
colour T.V., but the specific date of demand and torture was
neither mentioned in the First Information Report, nor
appeared in the evidences of the prosecution witnesses.
6. The learned amicus curiae further submitted that
altogether five witnesses were examined by the prosecution.
P.W.-1 and P.W.-2 are the brothers of the informant, P.W.-3 is
the maternal uncle of the informant, P.W.-4 is the father of the
informant and P.W.-5 is the informant herself and all the
prosecution witnesses are interested witnesses. She submitted
that the investigating officer of the case has not been examined
and there is no injury report on record. She also submitted that
altogether three defence witnesses have also been examined.
7. The learned amicus curiae further submitted that there is
an allegation of assault against the petitioner and others on the
date of filing of the First Information Report i.e. on 07.03.2005,
but there is no allegation of demand of any property or dowry.
She also submitted that on the same date and time of the
occurrence, the genital part of the petitioner was cut by the
informant of the case and therefore, the family members of the
petitioner had tied the hands of the informant and the brother
of the petitioner had informed the police and thereafter, the
police had arrived and untied the informant. She submitted that
the petitioner had also filed a separate case in connection with
the aforesaid assault upon him and it has also come in evidence
that the petitioner was treated in the hospital inside the jail for
months together for the injury suffered in his genital part. She
also submitted that the petitioner has been falsely implicated in
the present case and the impugned judgments of conviction are
not sustainable in the eyes of law.
8. The learned amicus further submitted that other family
members of the petitioner had also faced the trial, but they have
been ultimately acquitted by the learned appellate court on the
ground that on 07.03.2005, there was no demand of any
property or dowry by them. She submitted that case of the
petitioner stands on the same footing as that of his family
members, but the conviction of the petitioner has been
sustained only on the ground that the petitioner is the husband
of the informant of the case.
9. The learned amicus curiae, while referring to the
examination of the accused-petitioner recorded under Section
313 of the Code of Criminal Procedure, submitted that the
learned trial court had put questions in connection with
incident of 07.03.2005, but no question has been put regarding
any incident which was alleged to have taken place before
07.03.2005. She submitted that the specific question put to the
petitioner was in connection with the incident of 07.03.2005 and
on subsequent date, but there is no allegation of demand of any
property on 07.03.2005, rather the allegation regarding dowry
demand is related to much prior to the said date. Consequently,
the conviction of the petitioner under Section 498A of Indian
Penal Code is not sustainable in the eyes of law. She also
submitted that the evidences of the defence witnesses have also
not been properly considered by the learned courts below.
Arguments on behalf of the Opposite Party-State
10. The learned A.P.P. appearing on behalf of the Opposite
Party-State, on the other hand, opposed the prayer and
submitted that there are concurrent findings recorded by the
learned courts below and accordingly, the same may not be
interfered with under revisional jurisdiction.
Findings of this Court
11. The prosecution case is based on the fardbeyan of the
Informant namely, Mariam Khatoon (P.W.-5) alleging that the
informant was married with the petitioner two years ago and at
the time of marriage, her father had given Rs.15,000/- cash,
cycle, watch, godrej and other household articles in dowry. But
after sometime, her husband, mother-in-law, brother-in-law
and others demanded Rs.50,000/- cash and other articles as
dowry from her and also assaulted and abused her. The
petitioner took the informant to her parental house where she
remained for one year and after the death of her father-in-law,
her father took her to her matrimonial house, but she was again
abused and assaulted by her husband, mother-in-law, bhaisur
and devar and she again came to her parental house. It was
further stated that one month before the occurrence, a meeting
was held in Kutey Anjuman where the petitioner was also
present and on the basis of the decision of the Anjuman, the
petitioner took her to his house and since then, the informant
was residing in her matrimonial house. When the informant
went there, the petitioner and other accused persons again
started abusing her and they also assaulted her. Her bhaisur
Nazrul Ansari instigated the petitioner to demand Rs.50,000/-
cash, colour T.V. and motorcycle from her parental house. On
06.03.2005, when her father came to her matrimonial house, her
husband and bhaisur abused him and told him to fulfill the
aforesaid demands as dowry and thereafter, her father returned
to his house. On 07.03.2005, the petitioner and other accused
persons assaulted the informant and also abused her. Nazrul
Ansari assaulted her with lathi, danda, fists and slaps and tied
her both hands behind her back. Thereafter, the petitioner told
the informant that he will cut his genital organ and will
institute a case against her.
12. On the basis of the fardbeyan, the case was registered as
Angara P.S. Case No. 10/2005 dated 07.03.2005 under Sections
498A, 341 and 323 of the Indian Penal Code and Section 3/4 of
the Dowry Prohibition Act against the petitioner and four
others. After completion of investigation, the Investigating
Officer submitted charge-sheet under Sections 498A, 341 and
323 of the Indian Penal Code against them.
13. On 16.07.2005, the charges under Sections 498A, 341 and
323 of the Indian Penal Code were framed against the petitioner
and four others which were read over and explained to them in
Hindi to which they pleaded not guilty and claimed to be tried.
14. In course of trial, the prosecution examined altogether
five witnesses in support of its case. P.W.-1 is Md. Ziyarat
Ansari and P.W.-2 is Ibadat Ansari and both are the brothers of
the informant. P.W.-3 is Basarat Ansari who is the maternal
uncle of the informant. P.W.-4 is Razzak Mian who is the father
of the informant and P.W.-5 is Mariam Khatoon who is the
Informant herself.
15. P.W.-1 deposed that the marriage of his sister was
solemnized with the petitioner in April, 2003 and he was
present at the time of marriage and on demand, Rs.15,000/-
cash and articles worth Rs.40-50 thousand were given to the in-
laws of the informant. She stayed peacefully for one year in her
matrimonial house, but thereafter, her in-laws started
demanding dowry and started assaulting her and Rs.50,000/-
cash and motorcycle were demanded as dowry, but they
refused to give dowry. Thereafter, they wrote to the committee
and the committee sent the informant to her matrimonial house,
but her in-laws did not keep her. He further deposed that the
informant has two sons and one daughter and they bear their
expenses. He further stated that the dowry was demanded by
the petitioner and Md. Mubarak and Md. Nazrul Haque.
16. P.W.-2 has deposed that the marriage of his sister with
the petitioner was solemnized in 2003. At the time of marriage,
they had given articles worth about Rupees 1 - 1 ¼ Lac to the
informant and she went to her matrimonial house where she
stayed peacefully for 4-5 months. But thereafter, Nazrul Ansari,
Salim Ansari, Mubarak Ansari and the petitioner assaulted her
and started demanding Rs.50,000/-, one colour T.V. and one
motorcycle, but they refused to fulfill the demand and
submitted an application before the Kutay Committee and the
committee sent the informant to her matrimonial house. But
within one month, the accused persons assaulted the informant
and when his father went to the matrimonial house of the
informant and tried to pacify the accused persons, they
quarreled with him and again demanded Rs.50,000/- from him
and thereafter, his father returned to his house and narrated
about the occurrence to them. After one day, he alongwith 2-3
persons went to the matrimonial house of the informant where
he saw that the police had come there and his sister was badly
assaulted by the accused persons. His sister was treated at the
Government Hospital, Angara and the informant was taken to
their house from the police station.
17. P.W.-3 deposed that the informant is his bhanji and her
marriage with the petitioner was solemnized four years ago.
This witness further deposed that after the marriage, she went
to her matrimonial house and stayed there happily for 1 - 1 ½
years, but thereafter Rs.50,000/- was demanded from her and
the petitioner and his mother and others assaulted her. On the
next day of the occurrence, they had gone to the matrimonial
house of the informant and saw her in injured condition.
18. P.W.-4 deposed that the marriage of his daughter namely,
Mariam was solemnized with the petitioner on 14.04.2003 and
after the marriage, she went to her matrimonial house where
she lived happily for six months, but thereafter, Nazrul, Azim,
Mubarak, Salim and Sogra Khatoon started demanding
Rs.50,000/- cash, one colour television and one motorcycle from
his daughter and the accused persons took his daughter to his
house. He gave information to the Anjuman Committee and the
Anjuman Committee sent the informant to her matrimonial
house where she lived for one month. On 07.03.2005, the
accused persons assaulted the informant and tied her hands
from behind and thereafter, police came there. He further
deposed that he had reached at the matrimonial house of the
informant in presence of the police. The police untied the hands
of the informant and took them to the police station where the
police handed over the informant to him and since then, she is
residing with him.
19. P.W.-5 is the informant herself and she deposed that her
marriage with the petitioner was solemnized on 14.04.2003. At
the time of marriage, her father had given Godrej Almirah,
Bicycle, watch, etc. and Rs.15,000/- and after the marriage, she
went to her matrimonial house where she lived happily for 2-3
months. Thereafter, Nazrul Hussain, Salim Ansari, Azim
Ansari, Mubarak Ansari and Sogra Khatoon together started
assaulting her and started demanding one colour television and
Rs.50,000/- from her and in the meantime, the petitioner took
her to her parental house and left her there. After staying for
one year in her parental house, after death of the father of the
petitioner, her father took her to her matrimonial house, but the
accused persons did not provide food and clothes to her and
assaulted her. When her father went to her matrimonial house,
the accused persons demanded Rs.50,000/- and one colour
television, abused him and drove him away and they tied her
after assaulting her. Thereafter, police came to her matrimonial
house and untied her and her fardbeyan was recorded. She
exhibited her fardbeyan as Exhibit-1.
20. After closure of prosecution evidence, the statements of
the accused persons including the petitioner were recorded
under Section 313 of Cr.P.C. wherein the petitioner stated that
the allegations are false and he would adduce evidence in his
defence. Thereafter, three defence witnesses were examined.
D.W.-1 is Sufal Singh, D.W.-2 is Qayum Ansari and D.W.-3 is
Nand Kishore Mahtha.
21. D.W.-1 deposed that the petitioner is a resident of his
village and his marriage was solemnized with Informant in
2003 and no dowry was taken at the time of marriage. After the
marriage, the Informant used to reside in her parental house for
most of the time and she used to come to her matrimonial
house after 3-4 months and used to stay for 2-4 days and used
to return to her parental house. He further deposed that on
07.03.2005, he was in his school and meanwhile, he heard that
the informant had bitten the private part of the petitioner by her
teeth. He reached at the matrimonial house of the informant
where he saw blood in the lungi of the petitioner and they had
locked the informant in a room. Thereafter, the brother of the
petitioner went to Angara P.S. for giving information to the
police. He knew that the treatment of the petitioner had
continued for 6-7 months.
22. D.W.-2 deposed that he knows the petitioner who is a
resident of his village and he had attended the marriage of the
petitioner. After the marriage, the informant stayed at her
matrimonial house for 8-9 days and thereafter, she went to her
parental house. He heard noise in the house of the petitioner
and went to his house where he saw that the private part of the
petitioner was cut and there was bleeding. The informant was
caught there. The police came and took away the petitioner and
the informant.
23. D.W.-3 deposed that the petitioner is a resident of his
village and his house is at a distance of 300 feet from his house.
The marriage of the petitioner was solemnized in the year 2003
and after the marriage, informant stayed at her matrimonial
house for two months and thereafter, at her parental house for
two months. In 2005, he heard some noise in the lane and he
went to the house of the petitioner where he saw bleeding in
the private part of the petitioner. He received information that
the informant has bitten the private part of the petitioner. The
police was informed. The informant was kept in the house.
24. The learned trial court considered the evidences available
on record and recorded in Para-13 that all the prosecution
witnesses have fully supported the prosecution case and the
evidences of the defence witnesses support the facts that the
accused persons assaulted the informant and locked the
informant in a room which is also a kind of cruelty. However,
none of the prosecution witnesses has been able to state any
date regarding demand of dowry and torture committed to the
Informant. The learned trial court was of the view that it was
due to the reason that their evidences were recorded after lapse
of long period and they have forgotten the dates, which is
natural. The learned trial further recorded that it is established
in the present case that the petitioner and the in-laws of the
informant tortured the informant, physically and mentally, for
fulfillment of the demand of Rs.50,000/- cash, motorcycle and
one colour television, for which sufficient evidence is available
on record and the prosecution has been able to prove its case
beyond all reasonable doubts. The learned trial also recorded
that with regard to the charges under Sections 341/323 of the
Indian Penal Code, clear evidence is available on record and the
defence witnesses have also accepted that the hands of the
informant were tied from behind and she was assaulted. The
learned trial court convicted the petitioner and four others
under Sections 498A, 323 and 341 of the Indian Penal Code and
sentenced them as mentioned above.
25. The learned appellate court also considered the evidences
on record and, with regard to the Godrej Almirah, cycle, etc.
and Rs.15,000/- given at the time of marriage, and found that in
the evidence of P.W.-5 there is no specific evidence about
demand of dowry by the accused persons. The learned
appellate further recorded in Para-13 that no specific date is
mentioned in the evidence of P.W.-5 as to when all the accused
persons demanded Rs.50,000/- from her.
26. On the basis of the aforesaid findings, the learned
appellate court confirmed the conviction and sentence of the
petitioner under Sections 498A, 323 and 341 of the Indian Penal
Code, but set aside the conviction and sentence of the co-
accused persons namely, Sogra Khatoon, Nazrul Ansari,
Mubarak Ansari and Salim Ansari under Sections 498A, 323
and 341 of the Indian Penal Code and acquitted them from the
charges thereunder giving benefit of doubt to them.
27. This Court finds that the learned trial court convicted the
petitioner under Section 498A of the Indian Penal Code in
relation to the demand of Rs.50,000/- cash, one motorcycle and
one colour television as dowry made from the informant before
the incident of 07.03.2005 and the learned trial court has not
recorded any finding that on 07.03.2005, there was any demand
of property or dowry by the petitioner from the informant or
from her relatives. Further, it was never the case of the
prosecution that there was any demand of property or dowry
on 07.03.2005 or after the incident of 07.03.2005. Further, it was
never the case of the prosecution that the torture of the
informant on 07.03.2005 or after the incident of 07.03.2005 was
of such a nature as is likely to drive a woman to commit suicide
or to cause grave injury or danger to life, limb or health
(whether mental or physical of the women) which comes within
the definition of cruelty under Section 498-A. However, the
learned appellate court, inter alia, upheld the conviction of the
petitioner under Section 498-A IPC and acquitted the other
accused by stating that there was no specific allegation
regarding demand of dowry. The learned appellate court also
recorded that in the case in hand, it has come in the evidence of
PW-5 and PW-4 that hands of the informant were tied and she
was confined in a room and that the witnesses DW-1, DW-2 and
DW-3 have given evidence on this point that the informant was
locked in a room. The defence witnesses also corroborated this
part of the prosecution story that on the date of occurrence i.e.
07.03.2005, the informant was kept in a room in tied up
condition and she was set free when the police came. With this
background, the learned appellate court was of the view that
the prosecution has succeeded in proving the charge against the
petitioner-husband for offence under Sections 498A, 341 and
323 of the Indian Penal Code beyond the shadow of all
reasonable doubts.
28. From perusal of the statements of the petitioner recorded
under Section 313 of Cr.P.C., this Court finds that the Question
put the petitioner with regard to the offence under Section 498A
of the Indian Penal Code was -
There is evidence and allegation against you that on
07.03.2005 and on the subsequent dates, you, being her
husband, alongwith the co-accused persons tortured the
Informant Mariam Khatoon at Village- Rajadera, P.S.-
Angara, District- Ranchi. What do you have to say ?
29. This Court finds that the learned trial court, during
examination of the petitioner under Section 313 of Cr.P.C., put
the question in connection with the incident of 07.03.2005 and
subsequent events, but no question was put to the petitioner
regarding any incident or demand of dowry or property which
was alleged to have taken place only before 07.03.2005 as per
the prosecution case itself. This Court further finds that there is
no allegation against the petitioner regarding demand of any
property or dowry on 07.03.2005 or on any subsequent date and
the allegation with regard to Section 498A was made on alleged
demand of dowry prior to 07.03.2005, that too without any
specific dates.
30. In such circumstances, no opportunity was given to the
petitioner to present his defence and to rebut the accusation
with regard to the incriminating evidences appearing against
him relating to the period prior to 07.03.2005 and thereby,
causing prejudice to the petitioner.
31. In view of the aforesaid facts and circumstances of the
case, the law laid down by the Hon'ble Supreme Court in the
case of "Maheshwar Tigga -versus- The State of Jharkhand"
(2020) 10 SCC 108 is fit to be referred to wherein in Para-8, it has
been observed as under:
"8. It stands well settled that circumstances not put to an
accused under Section 313 Cr.P.C. cannot be used against him,
and must be excluded from consideration. In a criminal trial,
the importance of the questions put to an accused are basic to
the principles of natural justice as it provides him the
opportunity not only to furnish his defence, but also to explain
the incriminating circumstances against him. A probable
defence raised by an accused is sufficient to rebut the accusation
without the requirement of proof beyond reasonable doubt."
32. This Court finds that it is not in dispute that when the
informant of the case was in distress, she had assaulted the
petitioner on his private part causing bleeding injury and due
to which, he was treated and he also filed a case against his wife
in connection with such assault. It is also not in dispute that the
informant was found in a tied up condition in a room, when she
was recovered. It is further not in dispute that the police were
called at the instance of the petitioner, when he was allegedly
assaulted by his wife (informant).
33. Considering the fact that the entire allegation regarding
demand of dowry related to the period prior to 07.03.2005
regarding which no question was put to the petitioner in his
examination under section 313 of Code of Criminal Procedure,
and the incident of 07.03.2005 and onwards was not even
alleged to be likely to drive the informant to commit suicide or
to cause grave injury or danger to life, limb or health (whether
mental or physical of the women), the conviction of the
petitioner for offence under Section 498-A of IPC is perverse
and suffers from material irregularity and calls for interference
in revisional jurisdiction of this court to secure the ends of
justice.
34. This Court finds that there are concurrent findings
recorded by the learned courts below that on 07.03.2005, the
petitioner was present at the place of occurrence and the
informant was assaulted and was forcibly locked in a room and
the police recovered her in a tied-up condition and took away
her alongwith the petitioner to the police station. The findings
are based on materials available on record. In view of
concurrent findings based on materials on record, the
conviction and sentence of the petitioner for offences under
Sections 341 and 323 of the Indian Penal Code do not call for
any interference in revisional jurisdiction. Accordingly, the
judgments passed by the learned trial court and the learned
appellate court, so far as the conviction and sentences of the
petitioner under Sections 341 and 323 of IPC are concerned, are
upheld.
35. At this stage, learned Amicus Curiae pointed out that the
petitioner has already remained in custody for a period of one
year and he has been sentenced for six months under Sections
341 and 323 of the Indian Penal Code and the sentences have
been directed to run concurrently.
36. It is observed that the custody of the petitioner in
connection with the present case is a matter to be verified by the
learned court below.
37. As a cumulative effect of the aforesaid findings, this
criminal revision application is hereby partly allowed.
38. Pending Interlocutory Application, if any, is disposed off.
Appreciation for Amicus Curiae and Payment:
39. This Court observes that vide order dated 13.04.2021, Ms.
Amrita Banerjee, Advocate was appointed as Amicus Curiae in
this case by this Court. This Court records its appreciation for
the valuable assistance accorded by the learned Amicus Curiae
in final disposal of the case. The Secretary, Jharkhand High
Court Legal Services Committee is directed to ensure that the
legal remuneration of the learned Amicus Curiae is duly paid
to her within a period of 04 weeks upon submission of bills by
her.
40. The office is directed to provide a copy of this Judgment
to Ms. Amrita Banerjee, the learned Amicus Curiae and also to
the Secretary, Jharkhand High Court Legal Services Committee.
41. Let the lower court records be sent back immediately to
the court concerned.
42. Let a copy of this Judgment be communicated to the
learned court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj
