Md. Mahmod Ansari @ Md. Mahmood ... vs The State Of Jharkhand
2022 Latest Caselaw 2733 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Revisional Jurisdiction)
                Criminal Revision No. 59 of 2015
Md. Mahmod Ansari @ Md. Mahmood Ansari, s/o Mustafa Ansari
@ Mastan, r/o village-Khairo, PO and PS-Hariharpur, District-
Dhanbad.                                      ... Petitioner

                                  Versus
1. The State of Jharkhand.
2. Ashma Khatoon, d/o Md. Kaleem Ansari, r/o Laludih, PO+PS-
Hirapur, District-Dhanbad. Presently r/o New Colony Bania Hir,
PO+PS-Jharia, District-Dhanbad.             ... Opposite Parties

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner          : Md. Zaid Ahmad, Advocate
For the State               : Mr. Arup Kr. Dey, APP
                               ---------

Order No.7/Dated: 19th July 2022

The petitioner who is the husband of Ashima Khatoon has been convicted and sentenced to RI for 3 years with a fine of Rs.5000/- under section 498A of the Indian Penal Code (in short, IPC) with a default stipulation to undergo SI for one month; and RI for 2 years with a fine of Rs.5000/- under section 4 of the Dowry Prohibition Act with a default stipulation to undergo SI for one month.

2. The learned counsel for the petitioner submits that the accused has remained in jail for about five months.

3. In T.R. No. 200 of 2009, the learned trial Magistrate held that the offence under section 3 of the Dowry Prohibition Act is not attracted, however, on the basis of the evidence laid during the trial the prosecution could prove commission of the offence under section 4 of the Dowry Prohibition Act. The offence under section 498A IPC was also held proved but without any specific reasoning in this regard.

4. A glance at the judgment in T.R No. 200 of 2009 reveals that after reproducing statement of the witnesses in the Court and observing that the occurrence has been found true the learned trial Judge recorded his satisfaction in paragraph no.29 as under:

"29. var esa eSa vfHkys[k ij miyC/k lk{;ksa dk lko/kkuh iwoZd voyksdu djus ds i'pkr~ bl fu"d"kZ ij igqaprk gwWa fd vfHk;kstu i{k 2 Criminal Revision No. 59 of 2015

vfHk;qDrx.kksa ds f[kykQ Hkk0n0fo0 dh /kkjk 498 (A) ,oa ngst izfrca/k vf/k0 1961 dh /kkjk 4 ds varxZr yxk;s x;s vkjksi dks lansg ls ijs lkfcr djus esa lQy jgk gS tcfd ngst izfrca/k vf/k0 dh /kkjk 3 ds vUrxZr yxk;s x;s vkjksi dks lkfcr djus esa lQy ugha jgk gSA vr% vfHk;qDrx.kksa dks ngst izfrca/k vf/k0 dh /kkjk 3 ds vUrxZr nks"k eqDr fd;k tkrk gS ,oa Hk-n-fo- dh /kkjk 498 (A) ,oa ngst izfrca/k vf/k0 dh /kkjk 4 ds vUrxZr nks"kh ik;k tkrk gSA vfHk;qDrx.k tekur ij gSa mudk ca/k i= jnn~ djrs gq, mUgsa U;kf;d vfHkj{kk esa fy;k tkrk gSA"

English Translation:

"29. At last, after careful perusal of evidence available on record, I arrived at conclusion that the prosecution has been successful in proving the charges u/s 498(A) of IPC and section 4 of Dowry Prohibition Act, 1961 imposed against the accused persons beyond the shadow of all reasonable doubts, on the other hand, the prosecution has become unsuccessful in proving the charge imposed u/s 3 of Dowry Prohibition Act, 1961. Therefore, the accused persons are acquitted of charges u/s 3 of Dowry Prohibition Act and they are found guilty u/s 498(A) of IPC and section 4 of Dowry Prohibition Act. Accused persons are on bail. Their bail bonds are cancelled and taken into judicial custody."

5. Before I proceed to examine merits of the case within the limitations of the revisional jurisdiction, it needs to be recorded that a criminal trial is not like a fairy tale and every Court is required to give reasoning, howsoever, brief that may be. The language and the contents of the judgment as provided under section 354 of the Code of Criminal Procedure (in short, Cr.P.C) should contain the point or points for determination, the decision thereon and the reasons for the decision. The appellate Court seems to have overlooked the aforesaid aspect of the matter.

6. In Criminal Appeal No. 122 of 2009, except the petitioner other six convicts were acquitted on the ground that their conviction under section 498A IPC and section 4 of the Dowry Prohibition Act was not sustainable primarily for the reason that evidence against them was not sufficient for conviction. This finding by the appellate Court has been brought to the notice of this Court by Md. Zaid Ahmad, the learned counsel for the petitioner, to put forth a plea that there is specific allegation of assault against the mother-in-law and father-in-law and atleast the victim lady who was examined as PW4 has reiterated the same in her cross-examination. On this basis, a plea has been raised that once on the same set of evidence the father-in-law and 3 Criminal Revision No. 59 of 2015

mother-in-law have been acquitted the petitioner could not have been convicted.

7. The discussion by the appellate Court in the judgment dated 29th November 2014 runs as follows:

"From the aforesaid oral and documentary evidence, it is evident that there is specific allegation against the appellant Mahmood Ansari of having demanded Rs.1,00,000/-. There is also specific allegation against him that he had assaulted the victim. Some of the witnesses have stated that appellant Mustafa Ansari and Kariman Bibi also assaulted the victim like statement of Razia Khatoon (P.W.3) where she has stated that victim was assaulted in presence of his son but this fact has not been corroborated by the statement of Iyias Ansari (P.W.1). Ashima Khatoon has also stated that her husband and father-in-law and mother-in-law once assaulted her but she has not stated specially the date and time when she was assaulted.

From the aforesaid oral and documentary evidence, it is evident that marriage between Md. Mahmood Ansari and Ashma Khatoon has been admitted. It appears from the statement of the witnesses that there was demand of Rs.1,00,000/- from the side of Mahmood Ansari. To enforce the demand, Mahmood Ansari had assaulted Ashima Khatoon. As far as, other appellants are concerned there is general statement against them. As far as, the evidence with regard to demand of dowry is concerned, it has been admitted in the statement of Razia Khatoon (P.W.3) that jewelleries and other articles was given as it was customary. There is no evidence on the point as to who has demanded money and who received it. It further appears that appellant Butan Mian, Jhaur Ansari, Angari Mian @ Jhangathi Mian @ Sgakur Ansari and Rafi Ansari @ Rafique Ansari are distance relative of Md. Mahmood Ansari.

From the aforesaid facts and circumstances, I am of the opinion that prosecution has not been able to prove its for offence under section 4 of the D.P. Act at all. Accordingly, all the appellants are acquitted of the charge under this section. I am of the opinion that prosecution has not been able to prove its case against the appellant Mustafa Ansari, Kariman Bibi, Butan Mian, Jhaur Ansari, Angari Mian @ Jhangathi Mian @ Sgakur Ansari for offence under section 498A I.P.C beyond all reasonable doubt. They are acquitted of the charge. As far as appellant Md. Mahmod Ansari is concerned, prosecution has been able to prove its case against this appellant for offence under section 498A I.P.C. Learned court below rightly held him guilty. The sentence passed by the learned court below appears to be adequate and does not require any interference.

This appeal is partly allowed."

8. Briefly stated, marriage of the petitioner was solemnized with Ashima Khatoon on 13th April 1999 and according to her the petitioner solemnized second marriage after the case was lodged by her. The informant who is the father of Ashima Khatoon made a statement in his fardbeyan that on the occasion of marriage Rs.25000/- in cash, jewelleries and other house hold articles were given. A specific allegation as regards demand of Rs. One Lakh has been made for constructing a pucca house. In the trial, PW1 who is 4 Criminal Revision No. 59 of 2015

the brother of Ashima Khatoon stated that there was no panchayati convened in the village and he did not state anything about assault to his sister by father-in-law and mother-in-law. PW2 who is the father of Ashima Khatoon also stated that no panchayati was ever convened in the village to resolve the dispute between the couple. PW3 who is the mother of Ashima Khatoon admitted that it is customary under Muslim law to give presents and gifts on the occasion of marriage. She denied the suggestion in the Court that a report about her daughter's behaviour was published in the newspaper. Ashima Khatoon who tendered evidence as PW4 supported her allegations but at the same time admitted in the Court that since her husband has solemnized second marriage she would not live in his company. She denied the suggestion by the defence that she did not want to live in a kaccha house and that too in a village.

9. In defence, the accused persons laid documentary evidence, such as, the complaint made to the Superintendent of Police, Dhanbad vide Ext.-B, Registry Slip vide Ext.-C, charge-sheet in G.R No. 2262 of 2001 vide Ext.-E and order-sheet in C.P. Case No. 1006 of 2002 vide Ext.-F.

10. The appellate Court noticed that in C.P Case No. 1006 of 2002 six accused who are brother, father and mother of Ashima Khatoon and three others were issued summons for the offence under section 448 IPC. A reading of appellate judgment would further reveal that the appellate Court noticed statement of father of the petitioner who spoke about Ashima Khatoon terrorizing the whole family. The appellate Court also took notice of the newspaper report which was marked as Ext.-Y for identification in which the story of Ashima Khatoon terrorizing her entire matrimonial family was published. However, there is no discussion by the appellate Court why these defence materials cannot be considered to hold that the accused were falsely implicated on account of a grudge or oblique motive.

11. The allegation of demand of Rs. One Lakh has not been found proved and, accordingly, the offence under sections 3 and 4 5 Criminal Revision No. 59 of 2015

of the Dowry Prohibition Act has been found not proved. Even otherwise, the allegation as regards demand of Rs. One Lakh is that the father-in-law of Ashima Khatoon demanded Rs. One Lakh for construction of a pucca house which was asked for as a kind of loan. In the opinion of this Court, such demand would not fall under the expression "demand of dowry" as envisaged under section 498A IPC [refer, "Appasaheb v. State of Maharashtra" (2007) 9 SCC 721].

12. In so far as the allegation of assault upon Ashima Khatoon by the petitioner is concerned, this Court finds that neither any neighbour of the petitioner was examined nor any of the witnesses except PW3 has deposed in the Court that the petitioner assaulted his wife in their presence. This Court further takes notice of implicating four uncles-in-law of the petitioner who were residing in different village.

13. In "Raju v. State of T.N." (2012) 12 SCC 701 the Hon'ble Supreme Court has observed that "a Court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness".

14. In "Masalti v. State of U.P." AIR 1965 SC 202 the Hon'ble Supreme Court has observed that when a criminal Court has to scrutinize evidence of a witness who may be interested in prosecution of the accused the Court has to remain cautious. The Hon'ble Supreme Court has held as under:

"14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ............... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that 6 Criminal Revision No. 59 of 2015

such evidence should be rejected because it is partisan cannot be accepted as correct."

15. From the materials on record, I find that self-serving statement of Ashima Khatoon there is nothing on record to show assault upon her by the petitioner. Her testimony is also hedged with vague statements and bald denials of the defence, which is corroborated by documentary evidence. The Courts below did not accord same evidenciary value to the defence evidence and ignored the same without any consideration. In my opinion, the petitioner is entitled for benefit of doubt and the prosecution failed to bring home the charge under section 498-A IPC against him.

16. For the aforesaid reasons, the judgment dated 29 th November 2014 in Criminal Appeal No. 122 of 2009 against the petitioner passed by the appellate Court is set-aside and, consequently, the judgment of conviction and the order of sentence in T.R No. 200 of 2009 arising out of G.R Case No. 2094 of 2000 corresponding to Topchanchi PS Case No. 98 of 2000 passed by the learned Judicial Magistrate, 1st Class, Dhanbad are set-aside.

17. The petitioner is discharged of liability of the bail-bonds furnished by him in T.R No. 200 of 2009 arising out of G.R Case No. 2094 of 2000 corresponding to Topchanchi PS Case No. 98 of 2000.

18. Criminal Revision No.59 of 2015 is allowed.

19. Let the lower Court records be sent to the Court concerned, forthwith.

(Shree Chandrashekhar, J.) Amit/