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2007 DIGILAW 245 (JHR)

Ismail Mian v. State Of Jharkhand

2007-04-04

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Sole appellant Ismail Mian stands convicted for the offence punishable under Section 498A of the Indian Penal Code and sentenced to serve rigorous imprisonment for two and half years, by the 1st Additional Sessions Judge, Fast Track Court, Giridih in Sessions Trial No. 205 of 1989 Tr. No. 9 of 2002. 2. Brief facts leading to this appeal are that the Officer-in-Charge of Hirodih Police Station within the district of Giridih registered Hirodih Police Station U.D. Case No. 2 of 1988 on 22.6.1988 on being informed by the appellant that his wife was found dead in a well situated in village Dhodho. The said Officer-in-Charge during investigation of this U.D. Case, recorded the statement of Jahuran Bibi (PW 1), mother of the deceased Sarima Khatoon, supported by other witnesses that Sarima Khatoon has died due to torture for non-fulfillment of dowry demands. Accordingly, on 26.6.1988 he got Hirodih Police Station Case No. 19 of 1988 under Section 304B of the Indian Penal Code registered against the appellant and his parents on his own statement. According to informant Alakh Niranjan Choudhary, Officer-in-Charge of Hirodih Police Station, after marriage deceased Sarima Khatoon was subjected to torture for non-fulfillment of dowry demands of Rs. 2,000/- and ultimately she was found dead in a well in the morning of 22.6.1988. 3. The police further investigated the case and finally submitted charge- sheet against the five persons under Section 304B of the Indian Penal Code. Their trial was committed to the Court of Sessions where five persons were charged under Sections 147, 498A, 304B/149 and 201 of the Indian Penal Code. The accused pleaded not guilty and claimed false prosecution. The learned trial Court after evaluating the evidence before it found and held the appellant guilt under Section 498A of the Indian Penal Code only acquitting him from other charges. The learned trial Court has further acquitted all other accused persons from all charges. 4. The present appeal has been preferred mainly on the grounds that the learned trial Court while acquitting all the accused persons from all charges held the appellant guilty under Section 498A of the Indian Penal Code. In this context, Mr. S.K. Ughal, learned Counsel for the appellant, submitted that when the story of prosecution was not believed in major portion, the demand for dowry and subsequent torture upon the deceased fails. In this context, Mr. S.K. Ughal, learned Counsel for the appellant, submitted that when the story of prosecution was not believed in major portion, the demand for dowry and subsequent torture upon the deceased fails. It is further submitted that the learned trial Court has accepted the prosecution story that Rs. 2,000/- was demanded by the appellant without any basis, as the witnesses have failed to prove any panchayati in this context. My attention was drawn towards the admission of the witnesses that they had no personal knowledge about the dowry demands and only probable witness Jaitun Khatoon has not been produced before the trial Court. It is also submitted that the informant has not been examined and in absence of any medical report that Sarima Khatoon has died because of any injury on her body, the allegation of dowry demands are falsified. 5. I have gone through the materials on records in this case. The learned trial Court has elaboratory discussed the materials before it and came to hold that the deceased was married more than seven years at the time of her death. Accordingly, charge under Section 304B of the Indian Penal Code was not accepted, mentioned vide paragraphs-12, 13, 16, 18 and 19 of the impugned judgment. He has further discussed the medical report vide paragraph- 17 and hold that the death was caused due to drowning and acquitted the accused persons from charge under Section 201 of the Indian Penal Code. However, the learned trial Court found that dowry demands of Rs. 2,000/- were supported by witnesses, the appellant has been convicted under Section 498A of the Indian Penal Code. 6. After going through the materials on record, I find that the mother and father of the deceased as PW 1 and PW 8 have admitted that the deceased used to live properly up to four years after her marriage. Thereafter, the appellant used to demand of Rs. 2,000/-. PW 1 has admitted in paragraph-4 that this, information was received by her from one Jaitun Khatoon. Said Jaitun Khatoon has not been examined as witness by the prosecution. PW 8 has admitted that when they received information regarding the death of Sarima Khatoon after drowning in a well they arrived at Giridih and after consulting a lawyer, a petition was filed before the Court of Chief Judicial Magistrate, Giridih. Said Jaitun Khatoon has not been examined as witness by the prosecution. PW 8 has admitted that when they received information regarding the death of Sarima Khatoon after drowning in a well they arrived at Giridih and after consulting a lawyer, a petition was filed before the Court of Chief Judicial Magistrate, Giridih. However, that complaint petition has not been brought on record. This witness has further admitted vide paragraph-6 that his daughter war married earlier to someone and afterwards she got married with the appellant. PW 5, PW 6 and PW 7 are co- villagers of the appellant and informant. They could not support the story of dowry demands. PW 2 and PW 3 were related with the. deceased and they have supported the prosecution version that dowry demands were made as hearsay witnesses. They had no occasion to meet the deceased. 7. From the facts apparent on the records that it is found that the appellant has informed Hirodih Police Station, on the basis of which Hirodih Police Station U.D, Case No. 2 of 1988 was registered. The Officer-in-Charge however during investigation came to hold that the dowry death has occurred and accordingly, First Information Report was lodged on his own statement. He has not come to support his own statement. The witnesses examined in this case have given different versions and only offence accepted by the trial Court is 498A of the Indian Penal Code. However, when the death was found and held by accident, the charge under Section 498A of the Indian Penal Code also fails. It is further found that in absence of any positive prove that the appellant used to torture the lady for dowry and her death taking place after ten years of marriage, presumption cannot be drawn against the appellant that he used to torture her for non-fulfillment of dowry demands. 8. Having considered the facts and circumstances discussed above, I find and hold that the prosecution in the facts of present case has not been able to prove beyond doubts the charge under Section 498A of the Indian Penal Code against the appellant. As such, the present appeal has got merit and deserves to be allowed. 9. In the result, the present appeal is allowed and the judgment of the trial Court convicting the appellant is hereby set aside. As such, the present appeal has got merit and deserves to be allowed. 9. In the result, the present appeal is allowed and the judgment of the trial Court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and further discharged from the liabilities of his bail bonds.