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2018 DIGILAW 2108 (JHR)

Tabish Anwar v. State of Jharkhand

2018-09-24

RONGON MUKHOPADHYAY

body2018
JUDGMENT : 1. Heard Mr. Shailendra Jit, learned counsel for the petitioner and Mr. Shekhar Sinha, learned APP appearing for the State. 2. This application is directed against the judgment dated 07.06.2008 passed in Criminal Appeal No. 70 of 2005 by learned Additional Sessions Judge, F.T.C. III, Hazaribagh, whereby and where under, the judgment and order of conviction and sentence dated 16.04.2005 passed by learned Sub Divisional Judicial Magistrate, Hazaribagh in Complaint Case No. 195 of 2000 (T.R. No. 114 of 2005), convicting the petitioner for the offences punishable u/s 498A of the Indian Penal Code (I.P.C.) and sentencing him to undergo R.I. for 02 years has been affirmed. 3. The prosecution story in brief is that the complainant was married with the petitioner on 16.08.1997 as per Muslim rites and customs. It has been alleged that the petitioner and the complainant were having a love affair prior to the marriage. The parents and family members of the petitioner were demanding Rs. 50,000/-and a scooter as dowry but the parents of the complainant were not ready and after marriage on refusal of the in-laws of the complainant to allow her to stay in her matrimonial house, they took a house on rent and started residing there. It has further been alleged that after 20-25 days, the in-laws of the complainant became ready and she started residing in her matrimonial house, where she stayed for about 5-6 days. On account of non-fulfillment of demand of Rs. 50,000/-and a scooter, the complainant was ousted from her matrimonial house on 31.01.1999 and since then she started residing at her parents’ house. Based on the aforesaid allegation Complaint Case No. 195 of 2000 was instituted in which after cognizance was taken charge was framed u/s 498A I.P.C. and u/s 4 of the Dowry Prohibition Act and trial proceeded. 4. The petitioner and his parents-in-laws were convicted for the offences punishable u/s 498A I.P.C. and u/s 4 of the Dowry Prohibition Act which in appeal was modified and while acquitting the parents of the petitioner, the conviction of the petitioner was restricted to Section 498A I.P.C., where as he was acquitted for the offences punishable u/s 4 of the Dowry Prohibition Act. 5. In course of trial 05 witnesses were examined on behalf of the prosecution/complainant. C.W. 1, Ibli Hassan has stated that the complainant is his granddaughter and he had signed on the Nikahnama. 5. In course of trial 05 witnesses were examined on behalf of the prosecution/complainant. C.W. 1, Ibli Hassan has stated that the complainant is his granddaughter and he had signed on the Nikahnama. He has stated that the complaint had disclosed to him about the demand of Rs. 50,000/-and a scooter. C.W. 2, Md. Rabbani is the maternal uncle of the complaint. He has stated that he was present at the time of marriage between the petitioner and the complainant. He has further deposed that the complainant had disclosed to him about demand of Rs. 50,000/-and a scooter. This witness has admitted that the complainant was never assaulted in his presence. C.W. 3, Sayed Nesab Ahmad is an independent witness who has deposed that after marriage the couple started staying in a rented house. He has disclosed that there was a demand of Rs. 50,000/-and a scooter. This witness has stated that the complainant was treated well in her matrimonial house for about one month. He has also deposed that due to non-fulfillment of the demand, the complainant was subjected to torture. This witness has stated that the petitioner along with his parents had made the demand and ultimately the complainant was ousted from her matrimonial house on 31.03.1999. C.W. 4, Md. Nehal is the brother of the complaint, who was a witness to marriage between the petitioner and the complainant. He has stated that after one month of the marriage the complaint was ousted from her matrimonial house on account of non-fulfillment of the demand of Rs. 50,000/-and a scooter. He has further stated that when after marriage the couple were not allowed to stay in the matrimonial house of the complainant, they had taken a house on rent. C.W. 5, Farzana Khatoon is the complainant whose marriage was solemnized with the petitioner on 16.08.1997. She has stated that before marriage there was a 3. demand of Rs. 50,000/-and a scooter and the petitioner had protested about the demand of dowry. She has deposed that after marriage they were not allowed to reside at her matrimonial house and ultimately they had taken the house on rent where they stayed for 20-25 days. She has also stated that after her-in-laws agreed, she started residing in her matrimonial house. However, after 5-6 days due to non-fulfillment of the demand of Rs. 50,000/-and a scooter, she was ousted from her matrimonial house. She has also stated that after her-in-laws agreed, she started residing in her matrimonial house. However, after 5-6 days due to non-fulfillment of the demand of Rs. 50,000/-and a scooter, she was ousted from her matrimonial house. She has also stated that the petitioner had initially come to enquire about her but thereafter he stopped coming. She has also deposed that the petitioner had filed a case for dissolution of marriage. 6. It appears from the evidence adduced on behalf of the prosecution that there is consistency with respect to the demand of Rs. 50,000/- and a scooter prior to the marriage of the complainant with the petitioner and even after marriage the demand continued and its non-fulfillment resulted in the ouster of the complainant from her matrimonial house. Although the defence has taken a plea that the most of the witnesses examined are related to C.W. 5 but merely on such assertion it cannot be held that the said witnesses are partisan witnesses whose evidences cannot be relied upon. It is to be taken note herein that the offence for which the petitioner was convicted to u/s 498A I.P.C. and since the assault and torture is generally committed within the four walls of the house it is but natural presence of any eye witnesses is minimized. Although C.Ws. 1, 2 and 4 are related to the complaint but their evidence has been scrutinized to ensure that the same is not tainted or is tilted in favour of the complainant in order to secure conviction of the petitioner. The evidence of C.Ws. 1, 2 and 4 appears to be reliable and trustworthy and is not overtly tilted in favour of the complainant, rather the said witnesses have deposed about demand of Rs. 50,000/- and a scooter and the subsequent ouster of the complainant from the matrimonial house. Therefore the evidence of C.Ws. 1, 2 and 4 is cogent, reliable and is supported by the evidence of C.W. 3 who is an independent witness and who has supported the case of the complainant and the defence has failed to elicit any contradiction with respect to the evidence of C.W. 3. Initially the petitioner was perhaps in support of the complainant as the demand of Rs. Initially the petitioner was perhaps in support of the complainant as the demand of Rs. 50,000/-and a scooter prior to the marriage was resisted by the petitioner which led to his taking a rented house in order to stay with the complainant. However, the vision of the petitioner seems to have been clouded after returning back to his parents’ house where he had demanded an amount of Rs. 50,000/-and a scooter from the complainant and had also taken an active part in ouster of the complainant from her matrimonial house. Therefore from the evidence of the witnesses it is absolutely clear that the petitioner was involved in demanding additional dowry and subjecting the complainant to torture and her subsequent ouster and in such fact situation therefore the learned trial court had rightly convicted the petitioner for the offence punishable u/s 498A I.P.C. The same is hereby sustained. 7. However, as regards the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing rigours of the prosecution case since the year 2000 and has also remained in custody for sometime. Considering the aforesaid scenario, the period of sentence imposed upon the petitioner is modified to the period already undergone by him. 8. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioner.