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2019 DIGILAW 252 (JHR)

Sokhina Bibi v. State Of Jharkhand

2019-01-24

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. Objections pointed out in the stamp reporting regarding maintainability of the appeal is over ruled. I.A. No. 2280 of 2017 3. The present interlocutory application has been filed with a prayer for grant of the special leave to present appeal. 4. The brief facts of the case is that the complainant who is the wife of the accused person no. 1, Jamirul Sheikh, has lodged a complaint alleging that after her marriage she was treated with cruelty and was assaulted in connection of demand of dowry and a part payment of demand of dowry was met by her father but after one year her in-laws again started the demand of dowry. It is the further case of the complainant that on 24.10.2011 at 8.00 pm the accused persons snatched away ornaments of the complainant after assaulting her and drove her out from the matrimonial house. She spent the night of the occurrence in the house of Hussain Seikh of the village Tafu Tola and on the next morning at 8.00 am she went to her father''s home. Her father took her to a Doctor for treatment of her body ache. 5. The complainant in support of her case altogether examined three witnesses. C.W. 1- Surat Ali is the father of the appellant. He has stated that her daughter was married with the accused person no. 1, and he fulfilled all the demand of the accused persons and for non-fulfillment of further demand of dowry as made by the accused persons they drove out his daughter from her matrimonial home. C.W.2 is the complainant herself and C.W. 3 is one Rejaul Sheikh who deposed in the court that when the complainant was driven out from her in laws'' house by the accused persons and she stayed that night in his house. 6. On the basis of the evidence on record, the trial court acquitted 3 out of the 6 accused persons and convicted 3 of them for the offence punishable u/s 323 and 498 A of the Indian Penal Code. 7. Being aggrieved by the said judgment of the Trial Court, the accused persons preferred Criminal Appeal No. 65 of 2015. The learned Addl. 7. Being aggrieved by the said judgment of the Trial Court, the accused persons preferred Criminal Appeal No. 65 of 2015. The learned Addl. Sessions Judge-I, Rajmahal being the appellate court, considered the fact that though it is the case of the complainant that she was driven out form her matrimonial house at 8.00 pm on 24.10.2011 but in paragraph 14 of her evidence she has stated that from 23.10.2011 to 29.10.2011 she was at her father''s house which obviously contradict her claim that she was driven out from her matrimonial house on 24.10.2011. Further, the appellate court also considered the fact that the father of the complainant who was examined on 27.11.2012 has stated in paragraph 15 of the his evidence that the complainant was living with him since 3 & 1/2 years which also rules out that she was driven out from her matrimonial house on 24.10.2011. Learned appellate court also considered the fact that C.W. 3 in paragraph- 10 of his evidence has stated that one month before the date of institution of the case divorce took place between the complainant and her husband; hence offence punishable u/s 498A is not made out. The appellate court also considered the contradictory statement regarding the person to whom the father of the complainant made part payment of Rs. 15,000/- as the different witnesses have in their testimonies stated that the said money was paid to the different persons and thus considering the evidence on record, the learned appellate court came to the conclusion that the complainant has failed to establish charge for offence punishable u/s 323 and 498A of the Indian Penal Code against the accused persons and prosecution is not able to prove their case beyond all reasonable doubts and allowed the appeal and set aside the judgment of conviction and acquitted the accused persons from the charges. 8. It is submitted by the learned counsel for the appellant herein that special leave be granted to the present appeal as the learned appellate court failed to properly appreciate the record. 9. Learned Addl.PP, however, defended the impugned judgment and submitted that in view of the contradictory statement in the testimonies of the witnesses learned appellate court below has rightly allowed the appeal and acquitted the accused persons from the charges. Hence, he submitted that special leave to presenting the appeal ought not to be granted. 10. 9. Learned Addl.PP, however, defended the impugned judgment and submitted that in view of the contradictory statement in the testimonies of the witnesses learned appellate court below has rightly allowed the appeal and acquitted the accused persons from the charges. Hence, he submitted that special leave to presenting the appeal ought not to be granted. 10. Having heard the learned counsel for the parties and the submission made at the bar and after going through the record, this Court is of the considered view that the learned appellate court below has considered the contradiction in the testimonies of the witnesses which ruled out that the alleged occurrence took place on 24.10.2011 in the matrimonial house and there is also contradiction that as to at whose house the complainant spent night of 24.10.2011. Though as per the case made out in the complaint she stayed in the house of one Hussain Sheikh but the P.W. 3 Riyazul Sheikh stated that in the night of alleged occurrence the complainant stayed in his house. There is also contradiction in the name of the person to whom her father was made part payment of the demand of dowry. 11. It is a settled principle of law that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favour as has been reiterated by the Hon''ble Supreme Court of India in paragraph -11 in the case of Bannareddy v. State of Karnataka, (2018) 5 SCC 790 , which reads as under: 11. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favour. (Vide Dara Singh v. Union of India SCC in para 94.) 12. Keeping in view the settled principles of law and the facts of the case as discussed above, this Court is of the considered view that this is not a fit case where special leave be granted u/s 378 (4) of Cr.P.C for presenting this appeal. 13. Thus, this application for grant of leave for presenting the appeal being without any merit is rejected and consequently Acquittal Appeal No. 44 of 2016 is dismissed.