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2003 DIGILAW 962 (JHR)

Md. Arif v. State Of Bihar (Now Jharkhand)

2003-08-07

VIKRAMADITYA PRASAD

body2003
JUDGMENT Vikramaditya Prasad, J. 1. This criminal revision under Sections 397 and 401, Cr PC is directed against the order of conviction and sentence passed by the trial Court as also by the appellate Court in G.R.Case No. 744/1991 T.R. No. 696/1995 and in Cr. Appeal No. 41/96 by the Sub-Divisional Judicial Magistrate, Chaibasa and Sessions Judge, Singhbhum West, respectively. 2. The trial Court convicted the revisionist for an offence under Section 498-A, IPC and awarded a punishment of 3 years and the appellate Court confirmed the conviction and reduced the sentence of punishment. Originally, the other in- laws were also tried along with the revisionist, but they had already been acquitted by the trial Court itself. 3. The prosecution case arose out of the fact that the informant, PW 3, Modina Khatoon, lodged a written statement before the police, Ext. 1, stating therein that she had been married with the revisionist on 4.11.1990 and thereafter some documents of marriage were prepared and thereafter she stayed in the house of her Mama along with her husband and she went to her sasural along with her husband where she was tortured and assaulted by her in-laws and father of the husband asked that unless she brought a T.V. and T.V.S. Champion with Rs. 5000/- cash, she would be thrown out of the house. Thereafter on 7.11.1990, she was assaulted, expelled out of the house and even threatened that if she came back, she would be killed. Thereafter she met D.C. and filed this complaint. Charges were leveled against all the in-laws including the revisionist under Section 498-A, IPC. 4. In this revision, three grounds have been taken to assail the Impugned judgments--(i) only on the evidence of the interested witnesses, conviction has been made, (ii) the marriage itself is disputed and in absence of proving of the marriage, no conviction under Section 498, IPC could be there and therefore, the finding, of the learned trial Court on solemnization of the marriage and consequent conviction thereon is illegal and (iii) the informant would have taken the recourse under the Muslim Woman (Protection of Rights on Divorce) Act, 1986. 5. I have heard both the parties, perused the lower Court records and evidence. First I take up the point whether the informant would have taken the recourse to Muslim Women (Protection of Rights, on Divorce) Act, 1986. 5. I have heard both the parties, perused the lower Court records and evidence. First I take up the point whether the informant would have taken the recourse to Muslim Women (Protection of Rights, on Divorce) Act, 1986. That Act specifically deals with divorced women and makes provisions for return of dan mahar and for maintenance of the divorced women. Section 7 of the Act does provide exception that notwithstanding anything contained in that Act, the proceeding under Sections 125 and 127, Cr PC would be brought separately but this whole Act does not make any provision that a Muslim woman, even though subsequently some evidence comes on the point of divorce, cannot maintain a criminal case for an offence under Section 498-A, IPC. In this view of the matter, I find myself in disagreement with the learned counsel for the revisionist that the remedy of the informant lay under the aforesaid Act. Thus, the argument and this plea of the learned counsel appearing for the revisionist is rejected. 6. Whether on the evidence of the interested witnesses, there can be a conviction? There is no law that the evidence of the interested witnesses have to be brushed aside on the ground that they are interested. The only requirement is that their credibility has to be tested. In the case of this type in hand, the interested witnesses cannot be the witnesses to be looked with suspicion because it is mere such relatives, who actually have got the opportunity of knowing the fact of torture because the family affairs seldom come in public. In this case, PW 1, the father of the informant, PW 3, informant, and the mother of the informant, PW 2, have been examined. No doubt, there has been wild departure from what has been alleged in the FIR, Ext. 1, in the evidence given in the Court, but in substance some facts remained unshaken and these are (i) the girl was married with the revisionist according to Muslim rites and papers were prepared, (ii) after four days of the marriage, the girl was sent back to her fathers house and (iii) thereafter she had not been taken back. All these three witnesses have corroborated one another on the point of demand of T.V., cash and T.V.S. Champ. 7. All these three witnesses have corroborated one another on the point of demand of T.V., cash and T.V.S. Champ. 7. So far the question of marriage is concerned, two witnesses, PW8 and PW 9, have been examined, who have supported the factum of marriage and preparation of the documents thereof. The learned trial Court as also the appellate Court has said that no evidence was adduced on behalf of the defence on any point, therefore, the factum of marriage stands established. In a criminal case, the solemnization of marriage is not a substantial issue and the evidence that has come on record is sufficient in absence of any rebuttal of that to prove that. Therefore, the argument of the learned counsel for the revisionist that the learned trial Court and the appellate Court erred in holding that there was marriage between the informant and the revisionist has no leg to stand and is fit to be rejected. One another circumstance, which requires consideration is that the girl in her evidence has said that there was love affair between her and the revisionist from before and that" had led to some Panchayati and consequent thereto, it appears from the evidence of PW 1 and 2, the marriage was performed. It appears that a case under Section 376, IPC was likely to be filed against the revisionist, but one the pressure of the society, it was not filed and ultimately the marriage was solemnized. This is one of the circumstances that lends support to the proving of the factum of marriage. Cruelty as stated above, has been proved and therefore, I do not find any wrong or irregularity in the impugned orders, so far the conviction is concerned. 8. Now coming to the question of sentence, I find, as stated earlier, that the appellate Court reduced the sentence to two years. Now the learned counsel appearing, for the revisionist argued that after conviction upheld by the appellate Court and before filing the revision, the revisionist has remained in jail for 15 days, therefore, that should be treated to be the sentence and the revision may be allowed with this direction that the period undergone by the revisionist should be treated to be sentence. I do not think that this argument is either justified in law or in fact. The revision was filed in the year 1997. I do not think that this argument is either justified in law or in fact. The revision was filed in the year 1997. If the prayer of the petitioner is allowed, then it will not serve the ends of justice. It is also not known to the counsel for the petitioner as he has failed to inform this Court whether again the informant and the revisionist are living together. If they would have resume their life again as husband and wife, that could have been a mitigating, factor, despite the allegations made, in the interest of maintenance of the institution of marriage, to reduce the sentence considerably, but in absence of that and in absence of proving that divorce has subsequently been made, the mental torture that had started only during 4 days of the marriage and the girl was again thrown back to her parents house, the cruelty is persisting. I do not find any merit in this revision to interfere with the conviction or with the sentence. 9. In the result, this revision application is dismissed. The revisionist is directed to surrender before the Court below to serve the sentence within 15 days from today. If he does not surrender, the Court concerned will issue non- bailable warrant for his arrest. Send back the lower Court records forthwith.