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2019 DIGILAW 879 (JHR)

Mustafa Khan v. State Of Jharkhand

2019-04-12

DEEPAK ROSHAN

body2019
JUDGMENT 1. The instant application is directed against the judgment dated 22.09.2014 passed by the learned Additional Sessions Judge-V, Palamau at Daltonganj in Criminal Appeal No.77 of 2009, whereby the appellate court has confirmed the judgment of conviction and order of sentence, both dated 18.07.2009 passed by the Sub-Divisional Judicial Magistrate, Palamau at Daltonganj in complaint Case No.208/2004, T.R. Case No.791/2009 whereby the petitioner has been convicted for the offence under Section 498- A IPC and Section 4 of D.P. Act and sentenced to undergo S.I. for two years and to pay a fine of Rs. 2,000/- for the offence under Section 498-A of I.P.C and also sentenced S.I for three months and to pay a fine of Rs.500/- for the offence under Section 4 of Dowry Prohibition Act and both the sentences have been directed to run concurrently. 2. No one appeared on behalf of the petitioner on repeated calls. Even on 05.04.2019, nobody appeared on behalf of the petitioner. 3. Mr. Anil Kumar, the learned counsel appears on behalf of the opposite party No.2 and Mr. Vijay Kumar Gupta, the learned APP appears on behalf of respondent-State have assisted this Court in disposal of the case. 4. The case of complainant in brief is that, Shahnara Khatoon was married with Mustafa Khan on 24.05.2000 by Muslim Rites and Custom and Dain-mahr was fixed Rs.11,000/- and parents of complainant gifted Mustafa Khan Rs.45,000/- cash for purchasing motorcycle and ornaments cost of Rs.80,000/- and other household articles. Thereafter, she went to her sasural. After some time all accused persons demanded Rs.30,000/- from the complainant for running his business but the complainant protested and refused to oblige them so accused persons Mustafa Khan, Murtaja Khan, Nasiba Bibi and Asnol Hoda taunted her and pressurized her various ways to bring the money and also threatened that if she is unable to pay the said amount then the accused persons will continue to torture her. Then she intimated the same to her parent and pursuant to that her brother paid Rs.10,000/- in compelling circumstances. But again after some time all four accused persons started depriving her from bread and butter. In the meanwhile she was blessed a son and daughter. Then she intimated the same to her parent and pursuant to that her brother paid Rs.10,000/- in compelling circumstances. But again after some time all four accused persons started depriving her from bread and butter. In the meanwhile she was blessed a son and daughter. After birth of the daughter, the accused become more rude and again started torturing her and finally on 30.03.2004 the accused persons drove her out from her in-laws house and told that if she wants to reside here, she will have to pay Rs.30,000/-. 5. From the record it appears that C.W.4 Shahnara Khatoon, the complainant has also deposed that she was married with Mustafa Khan 5 years ago and, thereafter, she went to her sasural and remain two years there and during the said period she was blessed firstly a son later on a daughter and thereafter her husband started assaulting her and demanded Rs.30,000/- and compelled her to bring money from her parental house. Thereafter she has informed the matter to her parent, then Rs.10,000/- was paid to Mustafa Khan, thereafter the husband-accused kept her for some time peacefully, but later on again started assaulting her and demanded the rest Rs.20,000/-, and due to non-fulfillment of his demand, Mustafa Khan assaulted and ousted her from the house and threatened that if she will not pay money then she will be penalised for the same. Thereafter she has filed a case but after filing the case, her husband has divorced her and thereafter she has also filed a case for maintenance for herself and her children and after the divorce she kept herself separate from the case of maintenance and she has filed a separate case and court has ordered to provide Rs.500/- as interim maintenance for the children which was not being paid by her husband. 6. In this way, it appears that C.W.4 the complainant has supported the case of prosecution as per the complaint petition. C.W.1 Saira Bibi @ Sairun Bibi who is the mother of the complainant has also deposed that her daughter Shahnara Khatoon was married with Mustafa Khan 4 years ago and in the marriage ceremony the parents of the complainant gifted ornaments worth Rs.80,000/- and Rs.35,000/- for purchasing a motorcycle and wrist watch. C.W.1 Saira Bibi @ Sairun Bibi who is the mother of the complainant has also deposed that her daughter Shahnara Khatoon was married with Mustafa Khan 4 years ago and in the marriage ceremony the parents of the complainant gifted ornaments worth Rs.80,000/- and Rs.35,000/- for purchasing a motorcycle and wrist watch. However, all accused persons namely, Mustafa Khan, Murtaja Khan, Nasiba Bibi and Asnol Hoda assaulted the complainant in furtherance of common intention and pressurized her to bring Rs.30,000/- from her parent, then on the version of her daughter Rs.10,000/- was paid to the accused Mustafa Khan, then she remain well for 15 days. Thereafter accused persons continued to torture her for rest 20,000/- rupees and due to failure to oblige them, accused persons assaulted her and drove her out and since then complainant is residing in her Maike. 7. C.W.2 Samim Khan who is brother of the complainant has deposed that her sister Shahnara Khatoon married with Mustafa Khan and at the time of her marriage his father gifted household articles of cost of Rs.80,000/- and Rs.45,000/- in cash. Thereafter his sister went to her sasural, but just after a lapse of 15 days, Mustafa Khan started torturing her and pressurized her with the help of other accused persons and demanded Rs.30,000/- but the complainant cannot provide the same so she has intimated her parents and paid Rs.10,000/- but Mustafa Khan continue to torture her and drove her out from the house. She has also two children. 8. On perusal it appears that C.W.4 complainant has supported the case of prosecution and C.Ws. 1 and 2 have also corroborated the evidence of C.W.4 and nothing has been brought by the defence during cross examination which falsify the testimonies of the aforesaid C.Ws. Although some contradictions have come during the evidence of witnesses on record which appears minor one and it is settled that minor discrepancy due to lapse of memory is immaterial. 9. From the evidence of C.W.4 complainant and C.W.1 and C.W.2, whole evidence appears credible and trustworthy and there are nothing but supporting and corroborative evidence of prosecution and their testimonies are found to be cogent, convincing and trustworthy and it is also well settled that in a criminal trial credible evidence of even a solitary witness form the basis of conviction. 10. 10. The learned appellate court after scrutiny of evidence of witness has held that the eye witness of the instant case appears credible one and wholly reliable and there is sufficient evidence in order to establish the charges for offence punishable under Section 49-A of I.P.C and 4 of Dowry Prohibition Act against the accused appellant. 11. I have critically gone through the evidence on record the appellate order and the order passed by the Judicial Magistrate. From perusal of the documents, it appears that the learned S.D.J.M has considered the entire evidence of prosecution and defence in correct prospective. There is concurrent finding of both the court below regarding conviction of the accused person-petitioner. 12. The revisional jurisdiction of the High Court while dealing with an order passed by the trial court is very narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order. From the very nature of this power it should be exercised sparingly and with great care and caution. Reference in this regard be made to the judgments rendered by the Hon''ble Supreme Court in Bansi Lal and others Vs. Laxman Singh reported in AIR 1986 SC 1721 at paragraph nos.9 and 10, which read as under: "9. Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care ''and caution. From the very nature of this power it should be exercised sparingly and with great care ''and caution. In K. C. Reddy v. State of Andhra Pradesh, (1963) 3 SCR 412 : ( AIR 1962 SC 1788 ) , this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial Court and after referring to two earlier decisions of this Court reported in D. Stephens v. Nosibolla, 1951 SCR 284 : ( AIR 1951 SC 196 ) and JogendranathJha v. Polailal Biswas, 1951 SCR 676 : ( AIR 1951 SC 316 ) , the legal position was explained thus : "These two cases clearly lay down the limits of the High Court''s jurisdiction to interfere with an order of acquittal in revision; in particular, JogendranathJha''s case stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of S. 439(4) and that the High Court cannot do this even indirectly by ordering re- trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial Court''s appreciation of evidence but formally complied with sub-s. (4) by directing only a re-trial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general." This decision was subsequently followed by this Court in AkaluAhir v. Ramdeo Ram, (1974) 1 SCR 130 : ( AIR 1973 SC 2145 ) , where this Court observed :- "The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in S. 439(5), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Ss. 435/439, Cr. P.C. as if it is a hearing on appeal in spite of the wide language under S. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under S. 439 it can exercise inter alia the power conferred on a Court of appeal under S. 423, Cr. P.C. The power being discretionary, it has to be exercised judiciously, and not arbitrarily. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. In Amar Chand Aggarwal v. Shanti Bose, AIR 1973 SC 799 , this Court said that normally the jurisdiction of the High Court under S. 439, Cr. P.C is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complainant can only claim a right, in common with all aggrieved parties in a criminal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal. " The same position has been reiterated by this Court in SatyendraNath Dutta v. Rain Narain, (1975) 2 SCR 743 : ( AIR 1975 SC 580 ). 10. " The same position has been reiterated by this Court in SatyendraNath Dutta v. Rain Narain, (1975) 2 SCR 743 : ( AIR 1975 SC 580 ). 10. It is unfortunate that the High Court did not keep in mind and principles laid down in the aforesaid rulings regarding the limits of its revisional powers while dealing with an order of acquittal passed by the subordinate Court. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside (of) the order of acquittal and directing a retrial of the accused. In the present case the judgment of the learned Additional Sessions Judge did not suffer from any manifest illegality. The dominant justification of the order of acquittal recorded by the trial Court is the view it took of the evidence of the two eye-witnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterised as illegal or perverse. It may well be that the learned single Judge of the High Court was not inclined to agree with the said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any justification for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge. Even in an appeal the Appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional. jurisdiction under S. 439(4) of (old) Cr. P.C. in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a retrial of the case." 13. In the instant case, there is no infirmity in the order so as to warrant interference by this Court, as there is no violation of fundamental principles of law by the trial court and there is no injustice in dealing with the evidence. In the instant case, there is no infirmity in the order so as to warrant interference by this Court, as there is no violation of fundamental principles of law by the trial court and there is no injustice in dealing with the evidence. Further, there is no defect in the procedure or any error on the point of law as well as there is no miscarriage of justice. 14. In view of the aforesaid discussions and judicial pronouncements, this appeal is dismissed being bereft of any merit. 15. Let lower court record be sent to the concerned court.