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2020 DIGILAW 459 (JHR)

Md. Rashid Khan v. State of Jharkhand

2020-03-06

DEEPAK ROSHAN

body2020
JUDGMENT : DEEPAK ROSHAN, J. 1. This revision application is directed against the judgment dated 13th May, 2014 passed by the learned Additional Sessions Judge-IV, Palamau at Daltonganj in Cr. Appeal No. 124 of 2012, whereby the appeal preferred by the petitioners was dismissed and the judgment of conviction and order of sentence dated 13th September, 2012, passed by the learned Judicial Magistrate, 1st Class, Palamau, Daltonganj in Complaint Case No. 691 of 2001, corresponding to T.R. No. 575 of 2012, whereby the petitioners were convicted for the offence under Section 498 A of the I.P.C. and were further directed to undergo S.I. for one year each with a fine of Rs. 500/- each, has been affirmed. 2. The case of the complainant Nasreen Khatoon in short, is that, she was married with Rashid Khan according to Muslim rites and custom on 27.05.1997 and after marriage she went to her sasural at Latehar and lived there peacefully for two years and out of said wedlock a female child was born. It is further alleged in the complaint petition that in January, 1999 her husband started demanding cash Rs. 50,000/-. The father of the complainant in order to keep the accused happy paid some amount from time to time, but the accused persons, mainly her husband again started demanding motor cycle, Colour T.V. or Rs. 1,00,000/- cash from the father of the complainant. When the father of the complainant did not fulfill the demand of accused persons, the accused persons assaulted the complainant and did not provide food etc. to her and her minor daughter, and on 02.09.2001, at 7.00 A.M. accused persons assaulted the complainant by means of fists, slap, lathi and drove her out, after snatching away all her belongings. The accused persons especially her husband threatened the complainant to satisfy the demand otherwise she will be divorced. 3. Mr. A.K. Kashyap, learned senior counsel for the petitioner vehemently contended that before filing of the complaint case, the marriage between the parties was dissolved by Talaq, which had taken place on 27.01.1998 itself. Learned Senior counsel further contended that exhibit-A is the judgment of learned Principal Judge, Family Court, dismissing the Maintenance case of the informant wife after holding that Talaq was given by the opposite party (husband) on 27.01.1998, was a valid Talaq. Learned Senior counsel further contended that exhibit-A is the judgment of learned Principal Judge, Family Court, dismissing the Maintenance case of the informant wife after holding that Talaq was given by the opposite party (husband) on 27.01.1998, was a valid Talaq. The learned senior counsel concluded his argument by submitting that when the divorce had taken place prior to the institution of the complaint case then question of offence under Section 498 A of the I.P.C. does not arise and it is a fit case in which the petitioners should be acquitted. 4. Per contra, learned counsel for the complainant/Nasreen Khatoon submits that the order passed by the Family Court has been challenged before this Court and finding of Family Court should not be taken into account in this case and the learned trial Court has rightly rejected this plea of the petitioner that since the matter was pending before the High Court no final decision could be taken in that behalf. Learned counsel for the informant concluded his argument by submitting that no case of aquittal is made out by the petitioners and the instant application deserves to be dismissed. 5. Heard learned sr. counsel for the petitioners and learned counsel for the informant and also the learned A.P.P. for the State. 6. After going through the impugned judgment and the lower court record, especially the order passed by the learned Principal Judge, Family Court, Palamau, Daltonganj, in Miscellaneous Case No. 14 of 2005, wherein the learned Family Court has held at Para 9 as under: “9. From the perusal of the oral and documentary evidence produced from both the sides I find that the marriage of the petitioner/Nasreen Khatoon and the Opposite Party-Rashid Khan solemnized on 27.05.1997 as per Muslim Law. OPW-1 and OPW-2 are independent witnesses, who were present at the time of divorce by the opposite party to the petitioner on 27.01.98 and there is no reason to disbelieve their evidence, OPW-3 has also clearly stated in Para 4 of his show-cause as well as in his evidence before the court. It is true that the original Fatwa has not been produced by the opposite party and only photocopy of the same has been marked X for identification original letter written by the opposite party to the Khaloo for Fatwa, which is Ext.A (marked without objection) cannot be brushed aside. It is true that the original Fatwa has not been produced by the opposite party and only photocopy of the same has been marked X for identification original letter written by the opposite party to the Khaloo for Fatwa, which is Ext.A (marked without objection) cannot be brushed aside. This letter of the opposite party at least establishes this fact that after pronouncement of Talak he had written letter to his Khaloo for Fatwa.” The impugned judgment transpires that the learned trial Court brushed aside the plea of the petitioners that since divorce has already been taken between the parties, offence under Section 498A of the I.P.C. is not maintainable. The learned trial Court has held that the argument of the defense is not sustainable because the order passed by the learned Family court has been challenged before this Court. 7. During course of argument neither the counsel for the informant nor the learned A.P.P. has given any information about the fate of the said case. 8. In the absence of any subsequent order passed by this court in the case filed by the complainant-wife against the order of Family Court, I refrain myself from giving any opinion on the issue as to whether the marriage was still existing at the time of occurrence. It is also pertinent to mention here that though the defense of the petitioner is that there was a divorce between the parties prior to the filing of the complaint case, but at the same time no question to that effect has been asked by the defense from the complainant wife in her cross-examination. Not even a single question has been asked by the complainant-wife that she was divorced by the petitioner on 27.01.1998. Further, the defense has not taken such plea of divorce in their statement u/s 313 of the Cr.P.C. It is true that Section 498 A will be attracted only in the case of existing marriage, but as discussed hereinabove, I refrain myself from giving any finding as to whether at the time of occurrence the complainant-wife was a legally wedded wife of the petitioner or not or whether there was a valid divorce between them. 9. 9. In view of the aforesaid facts and circumstances of the case, I am not inclined to interfere with the findings given by the learned trial court and upheld by the learned appellate court with respect to conviction of the petitioners and the same is hereby sustained. 10. However, so far as sentence is concerned, it is apparent from record that the incident is of the year 2001 and 19 years have elapsed and the petitioners must have suffered the rigors of litigation for the last 19 years and also remained in custody for some time. It is not stated that the petitioners have ever misused the privilege of bail. 11. In a situation of this nature, I am of the opinion that no fruitful purpose would be served by sending the accused persons back to prison rather interest of justice would be sufficed if the sentence is modified in lieu of fine. 12. Thus, the sentence passed by the court below is, hereby, modified to the extent that the petitioners are sentenced to undergo for the period already undergone subject to the payment of fine of Rs. 10,000/- each. 13. It is made clear that the Petitioners shall pay the aforesaid fine of Rs. 20,000/- in all (Rs. 10,000/- each) within a period of four months from today before the learned trial Court, which shall be paid to the complainant as compensation. 14. With the aforesaid observations, directions and modification in sentence only, this revision application stands disposed of. 15. The petitioners shall be discharged from the liability of their bail bonds subject to the aforesaid condition. 16. Let the lower court record be sent to the court concerned forthwith. 17. Let this order be communicated to the learned trial court, and also to the petitioners through Officer-in Charge of concerned police station.