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2018 DIGILAW 2391 (JHR)

Md. Niyamuddin Ansari v. State of Jharkhand

2018-10-29

RONGON MUKHOPADHYAY

body2018
JUDGMENT : R. Mukhopadhyay, J. Heard Mr. D.C. Mishra, learned counsel for the petitioner and Mrs. Sadhna Kumar, learned A.P.P. for the State. 2. This application is directed against the judgment dated 06.01.2009 passed in Criminal Appeal No. 104/2008 by the learned Sessions Judge, at Dumka (Santhal Pargana), by which the judgment and order of conviction and sentence dated 20.11.2008 passed by the learned Judicial Magistrate, 1st Class, Dumka in G.R. Case No. 200/2001 (T.R. Case No. 430 of 2008), convicting the petitioner for the offence punishable under Section 498(A) of the Indian Penal Code and sentencing him to undergo R.I. for 18 months along with a fine of Rs. 1000/- has been affirmed. 3. The prosecution story in brief is that the opposite party no. 2 was married with the petitioner five years prior to the date of institution of the case as per Muslim rites and customs. It has been alleged that after some time the petitioner as well as the in-laws of the opposite party no. 2 started pressurizing her to bring a milch cow worth Rs. 5000/- and when the said demand was fulfilled by the father of the informant further demands intensified as another Rs. 5000/- was demanded by the petitioner for starting his business. Since the subsequent demand could not be fulfilled from the side of the informant the informant had come back to her parents house and somehow her father had arranged Rs. 5000/- which was handed over to the accused persons for business purpose. Subsequent thereto the informant was once again tortured and a demand of Rs. 10,000/- was made. The informant came back to her parents house and on narration of the events a Panchayati was held on 21.01.2001 but the accused persons were not convinced with the decision of the Panchayati which led the informant to institute G.R. Case No. 200/2001. 4. Investigation resulted in submission of charge-sheet under Section 498(A) of the Indian Penal Code and Section 3/4 of the D.P. Act in which cognizance was taken and thereafter charge was framed under Section 498(A) of the Indian Penal Code and Section 3/4 of the D.P. Act. 5. In course of trial four witnesses were examined on behalf of the prosecution. P.W.1 (Gafur Ansari) is the brother of the informant who has stated about the marriage of the informant having been solemnized with the petitioner. 5. In course of trial four witnesses were examined on behalf of the prosecution. P.W.1 (Gafur Ansari) is the brother of the informant who has stated about the marriage of the informant having been solemnized with the petitioner. This witness has further stated that initially there was a demand of a milch cow which has been provided by the father of the informant and the subsequent demand of Rs. 5000/- was also made by the father of the informant but thereafter on account of non-fulfillment of the demand of Rs. 10,000/- the informant was assaulted and driven out from her matrimonial house. In cross-examination he has denied the suggestion of the defence that his sister was divorced by the petitioner which was sent through registered post. P.W.2 (Azgar Ansari) is the cousin brother of the informant who has also supported the prosecution case and the persistent demand of the accused persons which was initially fulfilled but since the demand of Rs. 10,000/- could not be fulfilled the informant was brutally assaulted and driven out from her matrimonial house. P.W.3 (Abbas Ansari) is the uncle of the informant who has also supported the prosecution case as narrated by P.W.1. and P.W.2 P.W.4 (Safidan Bibi) is the informant herself who has also stated about the fulfillment of the demand of a cow and an amount of Rs. 5000/- but since the amount of Rs. 10,000/- could not be fulfilled she was subjected to assault and torture and ultimately she was ousted from her matrimonial house. She has further stated that a Panchayati was also held but the accused persons did not obey the dictum of the Panchayati. 6. The defence had examined one witness being D.W.1 who is the petitioner himself who has proved the purported written talaq and he had also stated that he had given written talaq on 24.01.2001 in presence of the witnesses namely Kaymuddin Ansari and Hasan Ansari. He has identified the photo copy of the talaqnama which has been marked as X for identification. 7. It has been submitted by Mr. D.C. Mishra, learned counsel for the petitioner that no case under Section 498A of the I.P.C., could have proceeded against the petitioner in view of the fact that the petitioner has already granted divorce to the opposite party no. 2. 7. It has been submitted by Mr. D.C. Mishra, learned counsel for the petitioner that no case under Section 498A of the I.P.C., could have proceeded against the petitioner in view of the fact that the petitioner has already granted divorce to the opposite party no. 2. Learned counsel for the petitioner submits that such grant of divorce has not been properly appreciated by either the learned trial court or by the learned appellate court while convicting the petitioner for the offence under Section 498(A) of the Indian Penal Code. Learned counsel for the petitioner further submits that the witnesses examined on behalf of the prosecution are all related to the informant and since the Investigating Officer was never examined the same has caused prejudiced to the defence. 8. Learned A.P.P., for the State has opposed the prayer made by the petitioner. 9. It appears from the judgment pronounced by the learned courts below that Exhibit-A which is the purported talaqnama has been disbelieved on account of the findings given by the learned courts below in a proceeding under Section 125 Cr.P.C., that there was no evidence about the communication of talaqnama. 10. So far as the oral evidences are concerned although P.Ws 1, 2 and 3 are related to the informant (P.W.4) but that by itself would not lead to discarding their evidence. All the prosecution witnesses having been properly scrutinized leads to a conclusion that all have consistently supported the initial demand of a cow which was supplied by the father of the informant and subsequently another demand of Rs. 5000/- was made which also was satisfied by the father of the informant but since the final demand of Rs. 10,000/- could not be fulfilled the informant was ousted from her matrimonial house which led to institution of the case. Although the Investigating Officer has not been examined but such non examination has not caused prejudiced to the defence as nothing could be pointed out by the learned counsel for the petitioner as to in what manner such prejudice has been caused. In such circumstances, therefore the learned trial court had rightly convicted the petitioner for the offence under Section 498(A) of the Indian Penal Code which was affirmed in appeal. The same is hereby sustained. 11. In such circumstances, therefore the learned trial court had rightly convicted the petitioner for the offence under Section 498(A) of the Indian Penal Code which was affirmed in appeal. The same is hereby sustained. 11. However, with respect to the sentence which has been imposed upon the petitioner it appears that the petitioner is facing the rigors of the prosecution case since the year 2001 and has also remained in custody for sometime. On consideration of such facts the period of sentence imposed upon the petitioner is modified to the period already undergone. 12. This application stands dismissed with the aforesaid modification in the period of sentence. Application dismissed.