Sazzad Khan @ Md. Sazzad Khan vs The State Of Jharkhand
2022 Latest Caselaw 3900 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Criminal Revision No. 109 of 2015

Sazzad Khan @ Md. Sazzad Khan, s/o Shaukat Khan, r/o Mullachak,
PO+PS-Warsali ganj, District-Nawada, Bihar            .... . Petitioner
                                Versus
1. The State of Jharkhand
2. Arzu Parween, d/o Dr. M.S Khan, r/o Marrufganj, Waasipur, PO+PS-
Bank More, District-Dhanbad                      ... Opposite Parties

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner    : Mr. Suraj Singh, Advocate
For the State         : Mrs. Nehala Sharmin, APP
For OP No.2           : Mrs. Archana Singh, Amicus
                                -------

rd Order No.09 /Dated: 23 September 2022

The petitioner who was married with Arzu Parween on 20th December 2003 has been prosecuted in G.R Case No. 4120 of 2004 along with 12 others.

2. In T.R No.629 of 2011 corresponding to G.R Case No. 4120 of 2004, the petitioner has been convicted and sentenced to RI for two years with fine of Rs.5000/- under section 498-A of the Indian Penal Code with a default stipulation to undergo further imprisonment for three months.

3. In T.R No.629 of 2011, the learned trial Judge has convicted the petitioner as under:

"13. In this case FIR has been instituted by the father of the victim girl PW1, and in the first information report itself 13 persons have been arrayed as the accused in this case in which apart from the husband, father-in-law, mother in law, several others relatives including grandmother-in-law have been made accused. In page-3 of the complaint petition a general allegation has been levelled against the other accused except the husband regarding torture. It is pertinent to mention here that in the entire complaint petition as well as in the evidence of PW-1 and PW-4, there is no allegation that except the husband, other in-laws relatives have ever raised any demand or ever demanded the cash amount from the victim girl. The allegation regarding the demand has been levelled against the husband accused No.1 and not against any other accused. In a case u/s 498A IPC recently a general tendency has developed to rope up the entire family. Hon'ble Apex Court of India in Priti Verma case has cautioned the trial courts to remain careful in dealing with the cases of dowry demand and to scrutinize the evidences keeping in mind this general tendency. In the instant case from perusal of the evidences adduced on behalf of the prosecution it clearly transpires that except the husband there is no evidence against other accused persons regarding any unlawful demand.

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Further regarding harassment and cruelty also sweeping allegation has been made against the other accused persons. In the matrimonial life of a victim girl, the husband holds the moral responsibility to protect her wife in all circumstances and if the husband fails or he himself raises the demand and torture her wife for such demand, he holds himself liable for the offence u/s 498A IPC.

14. Considering the fact and circumstances of the case and discussion made above I hereby found that so far accused No.2 to accused No.13 are concerned, the prosecution has failed to prove both the charges against them and accordingly they are hereby acquitted from the charges levelled against them and they are also discharged from the liabilities of their respective bail bonds. So far accused No.1 the husband is concerned I find that although the prosecution has failed to prove the charge u/s 3 and 4 of Dowry Prohibition Act against him but so far charge u/s 498(A) IPC is concerned, I find and hold that the same has been proved against the accused No.1 Sajjad Khan beyond all reasonable doubts. Accordingly, I hold him guilty for the offence u/s 498(A) IPC. The bail bond of the accused No.1 Sajjad Khan is hereby cancelled and he is taken into custody.

On the point of sentence .......Considering the fact and circumstance of this case I hereby sentenced the convict namely Md. Sajjad Khan to undergo Rigorous imprisonment for 2 (two) years u/s 498(A) IPC, I further impose a fine of Rs.5000/- on the convict, in case of default the convict shall undergo imprisonment for 3 months."

4. Briefly stated, marriage of the petitioner was solemnized with Arzu Parween on 20th December 2003 as per the Muslim customs and tradition. The informant who is the father of Arzu Parween made a written complaint alleging that after the marriage the petitioner and his family members started demanding one tape recorder and rupees one lakh for the petitioner to start a new business. The informant gave Rs.5000/- and Rs.10,000/- in March 2004 and September 2004 respectively and expressed his inability to give rupees one lakh. However, any how he could manage to give one tape recorder to the petitioner. Thereafter, the petitioner and his family members started torturing Arzu Parween for non-fulfillment of demand of dowry and sent her back to her parents' house. On the basis of the written complaint of the informant, Dhanbad (Bank More) PS Case No. 792 of 2004 was lodged on 24th December 2004 against the petitioner and his family members.

5. In T.R No.629 of 2011, the prosecution examined 5 witnesses out of whom the victim girl tendered her evidence as PW4. The father of the victim girl is the informant in the present case at whose instance Dhanbad (Bank More) PS Case No.792 of 2004 was lodged in which after the 3 Criminal Revision No. 109 of 2015

investigation a charge-sheet was filed against the petitioner and Md. Saukat Khan. In the supplementary charge-sheet 11 other accused persons were sent up for trial and they all faced the trial on the charge under section 498-A of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act.

6. As noticed above, the petitioner was convicted and sentenced for committing the offence under section 498-A of the Indian Penal Code. The other 12 accused persons were acquitted of the criminal charges on the ground that no evidence was produced by the prosecution against them regarding unlawful demand of dowry or harassment and cruelty caused upon the victim girl.

7. The petitioner challenged the aforesaid judgment of conviction and the order of sentence passed against him by filing Criminal Appeal No.152 of 2011 which was dismissed with modification in the order of sentence to the extent that the sentence of RI for two years has been modified and reduced to the sentence of RI for one year.

8. The petitioner has filed the present criminal revision petition under section 397 r/w section 401 of the Code of Criminal Procedure.

9. Mr. Suraj Singh, the learned counsel for the petitioner submits that demand of dowry by the petitioner is not established and the victim girl herself admitted that she did not suffer any physical assault at the hands of her husband and while so the offence under section 498-A of the Indian Penal Code is not attracted against the petitioner.

10. During the trial, PW1 and PW4 admitted that there was a compromise between the parties which has been reduced into writing on 3rd September 2005 and the petitioner sent talaque papers to PW4 from the jail which was accepted by her. The specific case pleaded by PW4 is that her husband was impotent and she could stay in her matrimonial home for a brief period only. The stand taken by the petitioner is that her wife had previous relationship with one Hassib Khan and that was the reason she made false allegations against him and left his company after few days of marriage. This has also come on record that after divorce PW4 solemnized second marriage with Mohsin Khan. The compromise petition dated 3rd September 2005 was laid in evidence vide Ext.-A and the complaint made by PW4 regarding impotency of her husband was produced by the 4 Criminal Revision No. 109 of 2015

defence which was, however, denied by PW4 and marked as Ext.-X for identification.

11. The appellate Court has held that there was compromise between the parties but the evidence of PW1 and PW4 regarding demand of rupees one lakh and one tape recorder corroborated each other.

12. In the judgment dated 8th September 2014 the learned appellate Court has held as under:

"It is admitted case that there was 1 between the parties when the appellant was in custody and one term of compromise was that appellant should give Talaq to Anju Parween, which was complied. The case of the defence is that the appellant was impotent as it appears from suggestion given to witness Arzu Parween (P.W.4) and Md. Suba Khan (P.W.1) but nothing has been brought on record except a latter purported to be written by Arzu Parween (P.W.4) to her brother-in-law. Proper foundation for adducing this letter has not been led. If letter was written to the brother-in-law of the victim, the fact ought to have been come in evidence how the letter landed in the hands of the appellant. It is different matter that the victim Arzu Parween has denied having written any letter. She has denied when letter was shown to her. From the aforesaid oral and documentary evidence, it is apparent that in my view Dr. M.S. Khan and his daughter Arzu Parween (P.W.4) both have corroborated each other as far as, demand of Rs.1,00,000/- and two-in-one tape recorder is concerned, they have also corroborated the fact that appellant had tortured his wife to enforce the demand. Apart from suggestion that appellant was impotent as discussed above, there is nothing on the record to this effect. Apart from statement of the appellant as defense witness there is nothing on the record that victim was having extra marital affairs with Hasib Khan.

In view of the above facts and circumstances, I am of the opinion that prosecution has been able to prove its case against the appellant for offence under section 498A of the I.P.C. though it has been stated that parties have compromised the case for offence under section 498A of the I.P.C. In my view the learned court below has rightly held the appellant guilty for the said offence.

Considering the fact that victim has remarried and once there was compromise between the parties resulting in giving of divorce by the appellant to the complainant, the sentence passed by the learned court below is reduced to rigorous imprisonment for one year and fine of Rs.5,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for fifteen days. The period already undergone in custody shall be set off. This appeal is dismissed with modification in sentence."

13. Section 498-A of the Indian Penal Code provides punishment of 3 years to the husband or the relative of the husband of a woman who subjected the woman to cruelty. The expression 'cruelty' has been defined to mean any willful conduct which is of such a nature as is likely to drive the 5 Criminal Revision No. 109 of 2015

woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman.

14. PW4 admitted in the Court that she did not suffer any physical injury. There is no evidence regarding any filthy abuses heaped upon her by her husband. On a glance at the evidence tendered by PW1 and PW4, this Court finds that the evidences tendered by them do not indicate that the so called cruelty inflicted upon PW4 was of such nature that it was likely to drive her to commit suicide.

15. The expression 'cruelty' has been further defined to mean harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.

16. The evidence tendered by PW1 and PW4 on demand of rupees one lakh by the petitioner has to be tested in the background of the other indisputed facts which have come on record. PW4 stayed in her matrimonial home only for four days and has made allegations of impotency against her husband. As noticed above, she has admitted that she did not suffer any physical assault at the hands of her husband. The factum of divorce is accepted and it is also admitted by the prosecution witnesses that PW4 has already solemnized second marriage. In the aforesaid background, the defence set up by the petitioner that with oblique motive on account of her previous relationship with another man his wife made false allegations against him cannot be ruled out.

17. The aforesaid being the state of affairs, it is difficult to hold that the prosecution has established the charge under section 498-A of the Indian Penal Code against the petitioner and, that too, when the other 12 persons were acquitted on the same set of evidence.

18. Mrs. Nehala Sharmin, the learned APP and Mrs. Archana Singh, the learned Amicus would, however, try to contend that in exercise of the revisional jurisdiction this Court would not interfere with the order of conviction and sentence passed by the Courts below.

19. In principle, this Court would have accepted the aforesaid proposition had this not come on record that there was a compromise between the parties and this fact has been admitted by the prosecution side.

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20. Compromise between the parties is a relevant factor for deciding the quantum of sentence to be awarded to the accused.

21. In "Manohar Singh v. State of Madhya Pradesh and Anr." (2014) 13 SCC 75, the Hon'ble Supreme Court has observed as under:

"6. Section 498-A IPC is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. It is not necessary to state that non-compoundable offences cannot be compounded by a court. While considering the request for compounding of offences the court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences under Section 498-A IPC and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non- compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape, etc. (see Gian Singh v. State of Punjab). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so. The inherent power of the High Court under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course."

22. In view of the compromise between the parties which has been reduced into writing, the judgment of conviction and the order of sentence of one year with fine of Rs.5,000/- dated 8 th September 2014 passed against the petitioner under section 498-A are set aside. Consequently, the judgment of conviction and the order of sentence dated 24 th June 2011 passed in T.R No.629 of 2011 corresponding to G.R Case No. 4120 of 2004 are also set aside.

23. The petitioner shall stand discharged of liability of the bail bonds furnished by him pursuant to the order dated 17 th April 2015 passed by this Court.

24. Criminal Revision No. 109 of 2015 is allowed to the aforesaid extent.

25. Let the lower Court records be sent back to the Court concerned forthwith.

26. Let a copy of this order be transmitted to the Court concerned through "Fax".

(Shree Chandrashekhar, J.) sudhir