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2017 DIGILAW 1373 (JHR)

Jainul Abdin, S/o Md. Abbas v. State of Jharkhand

2017-08-07

RONGON MUKHOPADHYAY

body2017
JUDGMENT : By Court.-Heard Mr. S.K. Murtty, learned counsel for the petitioners and Md. Asif Khan, learned A.P.P. for the State. 2. This application is directed against the judgment passed by, the learned Additional Sessions Judge, Fast Track Court 7th Giridih on 17.02.2005 in Cr. Appeal No. 81 of 2003, whereby and whereunder the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Giridih in G.R. No. 1846 of 1995, corresponding to T.R. No. 162 of 2003, by which the petitioners have been convicted for the offences punishable u/s 325, 498-A and 323 of the Indian Penal Code and have been sentenced to undergo S.I. for 2 years, 1 years and six months respectively has been affirmed. 3. The prosecution story in brief is that the informant was married to the petitioner no. 1 on 18.04.1993. It is alleged that there was a demand of scooter, Color T.V. and Rs. 20,000/- and on account of non-fulfillment of the said demand she was turned out from her matrimonial house. It is alleged that a Panchayati was held and pursuant to the decision taken in the Panchayat the informant was taken back. It is alleged that subsequent thereto the petitioners had once again started torture and the petitioner no. 1 had tried to set her on fire after pouring kerosene oil. It is alleged that the informant went to her grandmother’s place and thereafter they once again went to her matrimonial house where the mother and the grandmother of the informant were assaulted. 4. Based on the aforesaid allegations Giridih (M) P.S. Case No. 247 of 1995 was instituted. Investigation resulted in submission of charge sheet and after cognizance was taken charge was framed and trial proceeded. 5. In course of trial 10 witnesses were examined on behalf of the prosecution. P.W.1 Md. Suleman is a hearsay witness although he has supported the prosecution case. P.W.2 Firoz Ahmad is the uncle of the informant who has stated that the incidents were disclosed to him by the informant. He has further stated that there was a demand made by the accused persons and attempts were also made to burn the informant. He has further stated that the informant had managed to flee away and had taken shelter in his house. P.W.3 Maimun Khatoon has stated that the informant is her granddaughter. He has further stated that there was a demand made by the accused persons and attempts were also made to burn the informant. He has further stated that the informant had managed to flee away and had taken shelter in his house. P.W.3 Maimun Khatoon has stated that the informant is her granddaughter. She has also stated that there was a demand of dowry and on account of non-fulfillment of the said demand the informant was tortured. She has further disclosed that after the informant came back to her house she had gone to the matrimonial house of the informant where she was brutally assaulted by the accused persons. P.W.4 Rauf Sheikh is a neighbor of P.W.3 who was stated that after the informant came to the house of P.W.3 the misdeeds of the accused persons were disclosed by her. P.W.5 Shaukat Ali is a hearsay witness who has stated that when he returned from his shop he had come to know about the incident. P.W.6 Fredrik Marandi has stated that he was in his house when he heard the alarm ‘chor-chor’. This witness has stated that two old women were being assaulted with a lathi by three brothers. He has further stated that he managed to pacify the matter and on being asked one of the old women disclosed that for non-fulfillment of demand of dowry her granddaughter was facing extinction on the hands of the accused. P.W.7 Rajan Robinson has supported the version of P.W.6. P.W.8 Md. Jamal who is the father of the informant and P.W.9 Nigar Khatoon who is the mother of the informant have supported the prosecution case with respect to the assault committed upon the informant on account of non-fulfillment of the demand made by the accused persons. P.W.10 Jaiqab Ali Ansari has stated that when he was in his house he heard the sound ‘chor-chor’. He has further stated that when he went to the place of occurrence he saw that two old women were being brutally assaulted with lathi. P.W.11 Sabina Praveen is the informant who has stated that after marriage she remained peacefully in her matrimonial house for 15-20 days. She has stated that thereafter a demand of Rs. 20,000/-, a scooter and color T.V. started. P.W.11 Sabina Praveen is the informant who has stated that after marriage she remained peacefully in her matrimonial house for 15-20 days. She has stated that thereafter a demand of Rs. 20,000/-, a scooter and color T.V. started. This witness has further stated that she was sent to her grandmother’s place where she had stayed for two years and thereafter she was taken back to her in-laws place. Continuing with her evidence she has disclosed that after two days on her returning back to her matrimonial house quarrel started and on 14.10.1995 kerosene oil was sprinkled over her but somehow she managed to flee away and took shelter in her maternal uncle’s place. She has further disclosed about the entire affairs to her relatives. This witness has stated that her mother and grandmother had gone to her in-laws place where they were assaulted. P.W.12 Doctor Rajendra Chaudhary had proved the injury report of P.W.3 which disclosed that she had a fracture injury which was opined to be grievous in nature. 6. The defence had examined as many as six witnesses in support of its case. D.W.1 Hazra Khatoon has disclosed that she had seen the husband of the informant (petitioner no.1) having been thrown in a well. D.W.2 Md. Idris has stated that the in-laws of the petitioner no. 1 had come and after assaulting him had thrown him in a well. D.W.3 Ganesh Hazam has stated that on alarm he had come and seen the petitioner no. 1 inside the well and thereafter he threw a rope and managed to save him. The version of D.W.4 and D.W.5 are similar with respect to throwing petitioner no. 1 in the well. 7. It has been submitted by the learned counsel for the petitioners that the witnesses examined on behalf of the prosecution are interested and partisan witnesses. Learned counsel for the petitioners submits that none had seen any part of the occurrence as had been alleged by them. It has been submitted that a counter case has also been filed by the petitioner no. 1. Learned counsel for the petitioners further asserts that since the Investigating Officer was not examined by the prosecution his non-examination has proved fatal to the prosecution. On the grounds narrated by the learned counsel for the petitioners he prays that the petitioners be acquitted from the charges levelled against them. 8. 1. Learned counsel for the petitioners further asserts that since the Investigating Officer was not examined by the prosecution his non-examination has proved fatal to the prosecution. On the grounds narrated by the learned counsel for the petitioners he prays that the petitioners be acquitted from the charges levelled against them. 8. Learned A.P.P. for the State on the other hand has supported the impugned orders. 9. It appears that since prosecution had been able to prove its case beyond all reasonable doubt the petitioners were convicted for the offences punishable u/s 325, 498-A and 323 of the Indian Penal Code and were sentenced to undergo S.I. for two years, 1 year and six months respectively vide judgment dated 17.04.2003 passed by the learned Judicial Magistrate, 1st Class, Giridih. The petitioners had preferred an appeal being Cr. Appeal No. 81 of 2003 which was dismissed by the learned Additional Sessions Judge, Fast Track Court 7th, Giridih on 17.02.2005. 10. Perusal of the Lower Court record and the evidence of the witnesses reveals that there are two sets of witnesses. The first set of witnesses have stated about the demand of dowry and the torture committed upon the informant on account of non-fulfillment of the said demand. The second set of witnesses are neighbors of the petitioners and who had witnessed the accused persons brutally assaulting the mother and grandmother of the informant. Although six witnesses have been examined on behalf of the defence who have mostly stated about the petitioner no. 1 having been thrown in the well but their evidence further proves the fact regarding brutal assault upon petitioner no. 3 who had suffered fracture injuries. The evidence of P.W.11 the informant has been supported by the evidence of P.W.1, 2, 3 and 4. All these witnesses have consistently stated about the demand made by the accused persons and attempts at burning the informant by sprinkling kerosene oil over her body. Thus these sets of witnesses have proved the allegation of torture and demand of dowry made by the accused persons. So far as the injury which has been suffered by P.W.3 is concerned which led to the conviction of the petitioners’ u/s 325 of the Indian Penal Code also, it is clear from the evidence of P.W.6, 7 and 10 that all had witnessed the assault committed upon two old ladies by the petitioners. So far as the injury which has been suffered by P.W.3 is concerned which led to the conviction of the petitioners’ u/s 325 of the Indian Penal Code also, it is clear from the evidence of P.W.6, 7 and 10 that all had witnessed the assault committed upon two old ladies by the petitioners. The assault committed upon P.W.3 has been supported by the evidence of the doctor P.W.12 who had found fracture injury on the person of P.W.3 which was opined to be grievous in nature. Although the allegations against the petitioners seems to be general with respect to the assault committed upon P.W.3 but the same by itself would not be of any benefit to the petitioners in view of the consistent evidence of P.W.6, 7 and 10 supported by the evidence of Doctor P.W.12. Learned counsel for the petitioners had argued about the witnesses being partisan witnesses but the evidence of the first set of witnesses although are related to each other are consistent and corroborative to each others statement barring some minor contradictions. By and large the evidence of the first set of witnesses have been able to prove the allegation made by the informant regarding the assault committed upon her on non-fulfillment of the demand of dowry. The second set of witnesses as has been stated above has also proved the allegation of assault made against P.W.3. 11. In such view of the matter, therefore the learned trial court had rightly convicted the petitioners for the offences u/s 325, 498-A and 323 of the Indian Penal Code which had also been affirmed in appeal. There being no reason to conclude otherwise the judgment of conviction passed by the learned trial court and affirmed by the appellate court is, hereby, sustained. 12. However, with respect to the sentence which has been imposed upon the petitioners it appears that the petitioners are facing the rigors of the prosecution case since the year 1995 and have also for some time remained in custody. Considering such fact the period of sentence imposed upon the petitioners is modified to the period already undergone. 13. This application stands dismissed with the aforesaid modification in sentence.