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2017 DIGILAW 1354 (JHR)

Mansur Mian v. State of Jharkhand

2017-08-03

RONGON MUKHOPADHYAY

body2017
ORDER : 1. No one appears on behalf of the petitioner. However, Mr. Ram Prakash Singh, learned A.P.P., is present. 2. As this case is pending since the year 2005 the same is being disposed of based on the materials available on record. 3. This application is directed against the judgment dated 25-1-2005 passed by the learned IVth Additional Sessions Judge, Jamtara in Criminal Appeal No. 13 of 2003 whereby and where-under the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Jamtara, in P.C.R. Case No. 8 of 1998 whereby and where-under the petitioner has been convicted for the offence under Section 498-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years has been affirmed. 4. The allegation made in the complaint petition is to the effect that the complainant was the legally married wife of the petitioner and she had given birth to a son aged about six years. It is alleged that the accused persons had decided to solemnize another marriage of the petitioner and to execute such plan, the accused persons had started committing torture upon the complainant and demanding money for starting business. It is alleged that at the time of delivery of the child, the complainant fell ill and she was taken to Popular Nursing Home, Jamtara where she gave birth to a stillborn child. Further allegations have been levelled that a Panchayati was held and it was decided that the accused persons would go to the house of the complainant and the father of complainant will give Bedai to the complainant. However, subsequently the complainant could know of the fact that the petitioner was intending to solemnize another marriage. 5. Based on the aforesaid allegation P.C.R. Case No. 8 of 1998 was instituted in which after conducting an enquiry cognizance was taken for the offence under Section 498-A of the Indian Penal Code and thereafter trial proceeded. 6. Since, the prosecution has been able to prove its case beyond all reasonable doubts the learned Judicial Magistrate, 1st Class, Jamtara vide judgment was dated 9-5-2003 was pleased to convict the petitioner for the offence under Section 498-A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. 6. Since, the prosecution has been able to prove its case beyond all reasonable doubts the learned Judicial Magistrate, 1st Class, Jamtara vide judgment was dated 9-5-2003 was pleased to convict the petitioner for the offence under Section 498-A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. The petitioner preferred an appeal being Criminal Appeal No. 13 of 2003 which, however, was dismissed by the learned IVth Additional Session Judge (F.T.C.), Jamtara on 25-1-2005. 7. In course of trial the complainant had examined as many as five witnesses whereas the defence had examined three witnesses. 8. P.W.-1, Jahir Mian, had stated that the petitioner had deserted his wife when she gave birth to a stillborn child. 9. P.W.-2, Khalil Mian, had also supported the fact of the informant giving birth to a stillborn child. He had also stated that Panchayati was also held. 10. P.W.-3, Allauddin Mian, had stated that the informant was admitted to the hospital and the entire expenses were borne by her father. 11. P.W.-4, Karunbibi, (complainant) had stated that the marriage was solemnized with the petitioner and there was cordial relationship between both of them for about eight years. She had stated that thereafter there was a demand of money made from his side at the instigation of others at which her father had expressed his inability to full-fill such demand. She had further deposed that the petitioner had started torturing her and at that point of time she was pregnant. She had further stated that she became ill and she was brought to the nursing home and the entire expenses were borne by her father. She had also stated that a Panchayati was held but the petitioner did not obey the dictum of the Panchayat and refused to keep the complainant with him on the ground that he was intending to solemnize another marriage. 12. P.W.-5, Basir Mian, is the father of the complainant who had stated that the petitioner used to torture his daughter and used to tell her to reside at her father’s house. This witness had stated that the daughter was admitted to the hospital where she gave birth to a stillborn child. He had also admitted to have undertaken the expenses incurred in the nursing home at the time of treatment of his daughter. He had further stated that an amount of Rs. This witness had stated that the daughter was admitted to the hospital where she gave birth to a stillborn child. He had also admitted to have undertaken the expenses incurred in the nursing home at the time of treatment of his daughter. He had further stated that an amount of Rs. 15,000/- was demanded by the petitioner for taking Bedai of his daughter and a threatening was given that if the amount was not given to him he would solemnize marriage with another girl. This witness has also stated that in spite of the directions of the Panchayat he did not appear and subsequently he had married another girl. 13. The defence had examined three witnesses to disprove the prosecution case. The witnesses have mainly proved certificate of posting papers, the affidavits as well as the paper of the doctor showing that the complainant was treated in the nursing home of D.W.-3 till 12-9-1997. 14. The defence had taken a plea that the witnesses who were examined on behalf of the complainant were all interested witnesses and, therefore, no reliance can be placed on their testimony. The defence had further taken a plea that there are material contradiction between the evidence of the witnesses as also the fact that a Talak had already been given to the complainant by the petitioner and since the marriage itself was not subsisting the question of convicting the petitioner for the offence under Section 498-A of the Indian Penal Code did not arise. 15. Mr. Ram Prakash Singyh, learned A.P.P., has supported the impugned orders. 16. It appears from the evidence of the witnesses that they are consistent and corroborative to each other with respect to the demand made by the petitioner and other accused persons and the torture committed upon the complainant by the petitioner and her in-laws. Although the defence had taken a plea that the marriage was dissolved by virtue of Talak given by the petitioner to the complainant but the same has rightly been disbelieved by the learned trial court as the same was not in accordance with law. The affidavit which has been brought on record by the petitioner is itself contradictory as although he had given triple Talak in presence of the complainant the necessity of sending it through post did not arise. The affidavit which has been brought on record by the petitioner is itself contradictory as although he had given triple Talak in presence of the complainant the necessity of sending it through post did not arise. The evidence of the witnesses thus clearly point to the guilt of the petitioner as he had committed torture upon the complainant when she was pregnant and resultantly she had given birth to a stillborn child. The witnesses had further stated that the entire expenses were born by the father of the complainant (P.W.-5). The demand as well the torture and harassment meted out to the complainant by the petitioner has been fully established by the complainant witnesses and in such circumstance, therefore, the learned trial court had rightly convicted the petitioner for the offence under Section 498-A of the Indian Penal Code which was also affirmed in appeal. There being no reason to conclude otherwise with respect to the conviction awarded to the petitioner the same is, hereby/sustained. 17. However, as regards the sentence imposed upon the petitioner is concerned, it appears that the petitioner is facing the rigors of the prosecution case since the year 1998. The petitioner has also remained for sometime in custody. Considering the aforesaid scenario the period of sentence imposed upon the petitioner is modified to the period already undergone. 18. This application stands dismissed with the aforesaid modification in sentence.