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2018 DIGILAW 418 (JHR)

Bushara Khatoon v. State of Jharkhand

2018-02-19

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the parties on the plea for condonation of delay of 327 days in preferring the instant petition made through IA No. 5970 of 2004. Petitioner has explained the delay in preferring the instant petition on the ground that after passing of the judgment of acquittal, erroneously an acquittal appeal was filed before this Court. However on being pointed out by the Registry that it is not maintainable, defects pointed out were not removed within peremptory time, leading to its dismissal for noncompliance of the order dated 28.7.2004. Soon thereafter, the present petition was filed on 15.9.2014. In view of the prosecution of the acquittal appeal, which was not maintainable, delay occurred in preferring the present petition. Therefore, delay in question may be condoned in the interest of justice, otherwise petitioner would suffer irreparably. 2. Learned counsel for the private opposite parties and the State opposed the prayer. According to them the delay needs to be explained day-by-day, which is lacking in the present IA. 3. We have considered the submission of the parties and the grounds urged in the present petition. It appears that on erroneous advice petitioner has pursued the acquittal appeal against the same impugned judgment. After its dismissal, he has preferred the present petition without losing time. In such circumstances, the delay is more or less satisfactorily explained. We accordingly condone the delay. IA No. 5970 of 2014 stands disposed of. 4. We have heard learned counsel for the parties on the main prayer seeking leave to appeal against the judgment of acquittal dated 20.8.2013 passed in Criminal Appeal No. 13 of 2013 by the learned Additional Sessions Judge, XII, Ranchi whereunder learned Appellate Court has affirmed the judgment of acquittal dated 26.7.2012 passed by learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 133 of 2005. The accused/private opposite parties herein have been held not guilty of the charges under Section 498-A of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act. 5. As per the case of the complainant, she was married on 24.2.2013 with the accused Md. Zahind as per Islamic rites in which Rs. 20,000/- in cash and ornaments etc. were given to the father of the husband of the complainant. She spent few months peacefully in her in-laws house after marriage. 5. As per the case of the complainant, she was married on 24.2.2013 with the accused Md. Zahind as per Islamic rites in which Rs. 20,000/- in cash and ornaments etc. were given to the father of the husband of the complainant. She spent few months peacefully in her in-laws house after marriage. After few months, the husband of the complainant at the instigation of the other family members started demanding Rs. 50,000/-. Colour T.V., Almira etc. The complainant apprised them about the poor economic condition of her parents and their inability to meet the demand. It is alleged that her in-laws subjected her to cruelty and proper food etc. were not supplied to her. In the meantime she also gave birth to a female child. It is further alleged that on 22.1.2005 her in-laws brought the complainant from her parents house and asked her to live at the place till the demands are fulfilled. On this allegation, after examination of the complainant on solemn affirmation and inquiry, the accused persons were summoned to face the trial under the offences of Section 498-A of the IPC and Section 4 of the Dowry Prohibition Act. 6. The defence was of complete denial. According to them, the case was brought to save her brother and father from earlier case brought by them. The accused Zahid had already given divorce to the complainant much earlier to the complaint case and the maintenance case No. M-10/2006 had already been disposed of in that light. The learned Judicial Magistrate after conclusion of the trial acquitted the accused persons as material evidence to establish the demand of dowry and cruelty were not enough to establish the charges. The complainant thereafter preferred an appeal before the learned Additional Sessions Judge XII, Ranchi, who has affirmed the findings of the learned Trial Court. 7. Bereft of minute details, we may straightway refer to few important and relevant material evidences adduced by the complainant as discussed by the learned trial Court and the learned Appellate Court in order to appreciate the grounds urged by the petitioner herein. The marriage of the petitioner took place with the accused/opposite party No. 2 herein on 24.2.2013. According to her own case, she spent about 4/5 months peacefully in her in-laws house. However, she made complaint before the Idrishia Panchayat that her husband is impotent and insane. The marriage of the petitioner took place with the accused/opposite party No. 2 herein on 24.2.2013. According to her own case, she spent about 4/5 months peacefully in her in-laws house. However, she made complaint before the Idrishia Panchayat that her husband is impotent and insane. On the basis of medical report furnished by the accused, the panchayat found that he was not insane. He was asked to undergo tests for impotency. In between the complaint case No. 1214 of 2004 was lodged by the complainant's husband against the father of the complainant and others alleging a case of assault by them on 15.12.2004. The instant prosecution ended in acquittal of the accused persons by the judgment dated 22.2.2011. The complaint case was instituted by the complainant on 4.2.2005 alleging offences under Section 498-A of the IPC and Section 4 of the D.P. Act. As per her case, the accused persons had demanded Colour T.V., Sewing Machine, Almira and Rs. 50,000 in cash and assaulted her on the command of her mother-in-law. Finally on 22.1.2005 she was dragged out from the house. It transpires that the complainant had accepted in Maintenance Case No. 10 of 2006 that the accused/husband had given her divorce on 24.1.2005 itself. The complainant had also admitted that though she is not entitled for maintenance but her daughter is entitled for maintenance as per her statement made at para 21 in the said maintenance case. The findings of the maintenance case was never challenged in the Court of law/Family Court and have attained finality. 8. Learned Appellate Court in such circumstances, did not find sufficient evidence to establish cruelty within the meaning of Section 498-A of the IPC and demand of dowry within the meaning of Section 4 of the D.P. Act to bring home the charges against the accused persons. Learned Court has also taken into account the poor economic condition of the father of the complainant, who was reportedly earning a meagre amount of Rs. 50 to Rs. 100 per day and in such circumstances, the demand of dowry was a remote possibility. On these findings, learned Appellate Court affirmed the findings of acquittal of the accused persons rendered by the learned Trial Court. 9. 50 to Rs. 100 per day and in such circumstances, the demand of dowry was a remote possibility. On these findings, learned Appellate Court affirmed the findings of acquittal of the accused persons rendered by the learned Trial Court. 9. We have considered the submission of learned counsel for the parties and perused the impugned judgment of acquittal by the learned Appellate Court as well as that of the learned Trial Court. We are of the considered opinion that in the aforesaid sequence of facts and material evidence on record, learned Appellate Court had reason to affirm the findings of acquittal of the accused persons. The marriage between the complainant and the accused/husband stood dissolved due to the divorce given by the accused on 24.1.2005. The complainant did not have any cogent evidence to establish the aforesaid charges against the accused persons more so when she was living all along till 22.1.2005 in her parents house as per her own case. 10. Learned counsel for the petitioner has submitted that as per the evidence on record, the ‘iddat’ amount and ‘daan mehar’ had not been returned to the complainant or her father, which would show that the divorce was not complete. However, on this score, it is undeniable on the part of the petitioner that findings recorded in the Maintenance Case No. 10 of 2006 about her divorce on 24.1.2005 had remained un-assailed in any superior forum and therefore, have attained finality. 11. In the light of aforesaid discussion, we find no reason to grant leave to appeal is the present petition. The instant petition, being devoid of merit is accordingly dismissed. Petition dismissed.