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2020 DIGILAW 994 (JHR)

Md. Nayeem @ Md. Naim v. State of Jharkhand

2020-10-12

ANUBHA RAWAT CHOUDHARY

body2020
ORDER : 1. Heard Mr. Ranjan Kumar Singh, learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Indu Shekhar Gupta, learned counsel appearing on behalf of the Opposite Party-State. 3. The present criminal revision petition is directed against the Judgment dated 02.09.2013 passed by the learned Principal Sessions Judge, Pakur in Criminal Appeal No. 36/2012 whereby the learned appellate court affirmed the Judgment of conviction of the petitioner under Section 498A of the Indian Penal Code and the order of sentence and dismissed the appeal. The criminal appeal was preferred against the Judgment of conviction and the order of sentence dated 30.06.2012 passed by the learned Judicial Magistrate, First Class, Pakur in P.C.R. Case No. 197 of 2001/T.R. No. 131 of 2012 whereby the petitioner was convicted for committing the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/- only and in default of payment of fine, he was directed to further undergo simple imprisonment for one month and the benefit of set off under Section 428 of Cr.P.C. was extended to the petitioner. Arguments on behalf of the petitioner 4. Learned counsel appearing for the petitioner submitted that the petitioner is the husband of the Complainant. The Complaint in the present case was filed on 24.08.2001 and the petitioner has been convicted for offence under Section 498A of Indian Penal Code and has been punished for rigorous imprisonment for one year. The petitioner was convicted in the year 2012 and against the Judgment of conviction and the order of sentence, an appeal was filed, but was dismissed by the impugned judgment. Learned counsel submitted that there was lack of territorial jurisdiction as no incident in connection with the offence had taken place at Pakur. He also submitted that the Complaint Petition was not exhibited or proved and there is no cogent proof of demand of dowry and cruelty by the present petitioner. He submitted that only two witnesses were examined before the learned trial court. CW-1 is the elder sister of the Complainant and CW-2 is the Complainant herself and there is no independent witness to the occurrence. There is no cogent evidence on the demand of dowry and there is no specific allegation of demand. He submitted that only two witnesses were examined before the learned trial court. CW-1 is the elder sister of the Complainant and CW-2 is the Complainant herself and there is no independent witness to the occurrence. There is no cogent evidence on the demand of dowry and there is no specific allegation of demand. Learned counsel for the petitioner submitted that charge was framed only against the present petitioner, although in the complaint petition all the family members were made accused and there was no specific allegation against the petitioner. Learned counsel also submitted that the petitioner has remained in jail custody for a period from 17.01.2014 to 14.02.2014 during the pendency of the present criminal revision petition. Learned counsel for the petitioner further submitted that cognizance of the offence in the case was taken against all the accused persons mentioned in the complaint petition except sister-in-law and he reiterated that there is no specific allegation against the petitioner. Learned counsel also submitted that petitioner has faced the criminal case at least from 11.02.2006 and the charge was framed only on 04.01.2010 and this aspect of the matter may be considered and the sentence may be modified. Arguments on behalf of the Opposite Party-State 5. Learned A.P.P. appearing on behalf of the Opposite Party-State opposed the prayer and submitted that there are concurrent finding of facts by both the learned courts below and the petitioner and his parents were declared absconder by the learned trial court on 02.09.2005. On 11.02.2006, the petitioner was remanded in this case and consequently, on 04.01.2010 the charge was framed against the present petitioner only. 6. Learned A.P.P. further submitted that the point regarding territorial jurisdiction has been considered by the learned lower appellate court in the impugned judgment in Para-15 and all the points which were raised before the learned courts below have been considered and decided against the petitioner. He submitted that there being no illegality or perversity in the impugned judgments, they do not call for any interference. Findings of this Court 7. He submitted that there being no illegality or perversity in the impugned judgments, they do not call for any interference. Findings of this Court 7. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on a Complaint Petition being P.C.R. Case No. 197 of 2001 presented on 24.08.2001 by the Complainant alleging inter-alia that she was married with the petitioner three and half years ago according to Muslim rites and customs and at the time of marriage, her father had given Rs. 25,000/- golden ornaments, utensils, colour T.V. etc. including golden ring to the petitioner. Out of the wedlock, they have a daughter, but after her birth, the petitioner and his family members subjected physical and mental cruelty upon her and compelled her to bring Rs. 20,000/- from her father. It was further alleged by the Complainant that she took Rs. 5,000/- twice from her mother and gave to the petitioner and even then, the accused persons continued their demand. It was further alleged that on 01.01.2000, the accused persons assaulted the Complainant and drove out her from her matrimonial house and when she alongwith her baby went to the house of the petitioner on 09.08.2001, on the next day, she was again assaulted and was again driven out from her matrimonial house. The accused persons threatened to kill her, if she would come empty hand in future and since then, she is residing in her parental house. 8. In course of enquiry, the learned Judicial Magistrate found prima facie case under Section 498A of the Indian Penal Code against the petitioner and his parents and summons were issued to them. On 02.09.2005, they were declared absconder and on the strength of warrant of arrest, the petitioner was arrested and was remanded in the case on 11.02.2006. On 04.01.2010, the charge under Section 498A of the Indian Penal Code was framed against the petitioner which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 9. In course of trial, the Complainant examined altogether 02 witnesses in support of her case. CW-1 is the elder sister of the Complainant and CW-2 is the Complainant herself. 10. 9. In course of trial, the Complainant examined altogether 02 witnesses in support of her case. CW-1 is the elder sister of the Complainant and CW-2 is the Complainant herself. 10. On 04.01.2012, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the case of the Complainant and claimed to be innocent. Thereafter, the petitioner examined one witness DW-1 in his defence. 11. CW-1 is the sister of the complainant who deposed that the complainant got married to the petitioner and at the time of marriage cash amount of Rs. 5,000/- ornaments etc. were given. The petitioner and others beat up the complainant while she was pregnant and they drove her out of her matrimonial home. They demanded Rs. 20,000/- and her father paid Rs. 10,000/- to the accused in two installments of Rs. 5,000/- each. Again, after some days, they beat her up and drove her out of her matrimonial house. Thereafter, she has been residing in her parents’ house and the complainant also has a daughter out of the wedlock. CW-2 is the complainant herself, who has deposed that after three months of her marriage, the accused started demanding Rs. 20,000/- and for that demand, they treated her with cruelty. Consequently, the amount of Rs. 10,000/- was paid in two installments amounting to Rs. 5,000/- each and she got the amount from her father. After about two to three years, they again started beating her and said that they would not provide meal to her. Her husband and others used to demand money from her. When the money was not paid, they dealt with her and drove her out of her matrimonial house. Before the learned trial court, one defence witness was also examined who had admitted that the petitioner was married to the complainant and both were having a baby. 12. At the stage of trial, the learned defence counsel had argued that the complainant had not been able to prove the case beyond shadow of reasonable doubts against the accused and only two witnesses were examined on behalf of the complainant and on this count, the petitioner deserved to be acquitted. 13. This Court finds that the learned trial court considered the evidences adduced on behalf of the Complainant as well as the defence and summarized its findings in Para-18 and 19 of its judgment which read as under: “18. 13. This Court finds that the learned trial court considered the evidences adduced on behalf of the Complainant as well as the defence and summarized its findings in Para-18 and 19 of its judgment which read as under: “18. Both CW-1 and CW-2 (Complainant) have proved the fact that the accused demanded Rs. 20,000/- from the Complainant and thereafter Rs. 10,000/- were paid to him in two instalments of Rs. 5,000/- each. The accused used to beat up her and he further used to ask her that he would not provide food to her. After 2 to 3 years of receiving Rs. 10,000/- he again started beating the Complainant and he further drove her out of her matrimonial home. Out of their wedlock, they have a daughter who is aged about 10 Years and she is also residing with her mother (Complainant). 19. By adducing evidence, the Complainant has been able to prove the fact that for the dowry demand of Rs. 20,000/- she was subjected to cruelty by the accused who is her husband. Thereafter, Rs. 10,000/- were paid to him in two instalments of Rs. 5,000/- each. But again after the lapse of about 2 to 3 years, he started subjecting her to cruelty and ultimately, he drove her out of her matrimonial home.” 14. This Court further finds that the learned appellate court also considered the evidence adduced on behalf of the Complainant and the defence and the arguments of both the parties and summarized its findings in Para-13 and 14 which read as under: “13. Having considered the entire facts and circumstances of the case, as well as the argument advanced on behalf of both the parties, I do find that Complainant was married with appellant. Thereafter, she went at her matrimonial home and from their wedlock a female child has taken birth. I do further find that while, she was living at her matrimonial home, a demand of dowry was put forth by appellant alongwith his parents, whereupon the father of the Complainant gave Rs. 10,000/- in two installments, but appellant was not satisfied. Therefore, again he started put forth demand of dowry and when it was not fulfilled, then he subjected to torture and cruelty upon the complainant and lastly, driven her out from the matrimonial home. Consequently, the complainant took shelter in the house of her father within jurisdiction of Pakur district. 10,000/- in two installments, but appellant was not satisfied. Therefore, again he started put forth demand of dowry and when it was not fulfilled, then he subjected to torture and cruelty upon the complainant and lastly, driven her out from the matrimonial home. Consequently, the complainant took shelter in the house of her father within jurisdiction of Pakur district. After giving my anxious consideration, I find and hold that there is overwhelming evidence against the appellant given by both prosecution witnesses, fully supported the case of prosecution. It is true that there is some contradiction in their evidence but said contradiction creeping their evidence is of very trivial in nature not touching the core and spectrum of the prosecution case. Therefore, the evidence of complainant and her sister cannot be brushed aside in this case on this score. I further find and hold that complainant being newly married woman, her misfortune in the house of her in-laws was not expected to meet public and confine to her parents and brothers was only natural. In the instant case, the evidence about physical and mental torture upon complainant have come from the mouth of her father, sister and brother during course of inquiry u/s 202 Cr.P.C. but in course of trial, the brother and father of the complainant have been expired hence there is only evidence of elder sister and complainant on the record, who appears worthy of credence. I further find and hold that evidence in this case reveals an act of extreme form of cruelty committed by appellant with complainant. As a matter of fact, such act, to say least were very unkind and a newly married woman is bound to suffer great mental pain and humiliation. The evidence adduced on behalf of the complainant clearly establishes that complainant had been subjected of physical and mental torture all through out............. 14. Having scrutinised the evidence of PW-1 and 2 with care and caution, I do find that cruelty and harassment as stated by the prosecution witnesses has been proved by complainant beyond the shadow of all reasonable doubts.” 15. Upon perusal of the entire judgment passed by the learned trial court, this Court finds that no point in connection with alleged lack of territorial jurisdiction to try the case was raised by the petitioner. Upon perusal of the entire judgment passed by the learned trial court, this Court finds that no point in connection with alleged lack of territorial jurisdiction to try the case was raised by the petitioner. Further, the petitioner had not only defended the case by duly cross-examining the two witnesses from the side of the complainant, but by also adducing defence evidence by producing a defence witness. This Court finds that the plea of territorial jurisdiction was raised for the first time by the petitioner before the learned lower appellate court and the learned lower appellate court has specifically dealt with the issue of territorial jurisdiction in Para 15 of the impugned judgment wherein it has been recorded that the marriage of the complainant was solemnized within the jurisdiction of Pakur district and her matrimonial home was within the jurisdiction of Munger district in Bihar where demand of money was put forth to the complainant which was fulfilled by her father who was residing within the jurisdiction of Pakur district. It has also been recorded that the complainant was subjected to torture at her matrimonial home within the jurisdiction of Munger district and she was driven away from her matrimonial home and took shelter in the house of her father within the jurisdiction of Pakur district where the cruelty was still persisting. In this background, the learned lower appellate court held that the offence under Section 498A of Indian Penal Code, being a continuing offence, the court at Pakur had the jurisdiction to decide the matter. 16. This Court finds that mainly two reasons have been given by the learned lower appellate court to give territorial jurisdiction to Pakur district to try the case. Firstly, that the father of the complainant, who resided within the jurisdiction of Pakur district was the person who succumbed to the demand of dowry and paid the amount to the accused to the extent of Rs. 10,000/- in two instalments of Rs. 5,000/- each. Secondly, that the complainant was driven away from her matrimonial home due to torture and cruelty and the cruelty was still persisting. 17. 10,000/- in two instalments of Rs. 5,000/- each. Secondly, that the complainant was driven away from her matrimonial home due to torture and cruelty and the cruelty was still persisting. 17. A reading of Section 498-A of the Indian Penal Code shows that whoever, being the husband or relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The explanation to the section defines “cruelty” for the purposes of the section. Clause (b) of the Explanation to that section shows that the harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of Section 498-A. 18. In the present case, as pointed out by the learned courts below, there is ample evidence that repeated dowry demands were made inter-alia by the petitioner from the complainant, and her father, who is a resident of Pakur had also succumbed to the demand by giving Rs. 10,000/- in two instalments of Rs. 5000/- each. It has also come in the evidence that the demand of dowry and torture of the complainant for the same continued and the complainant was forced to leave her matrimonial house and take shelter in her parents’ house. This court is of the considered view that in the facts and circumstances of this case cruelty to the complainant continued even when she resided in her parents’ house after being forced to leave her matrimonial home and offence under Section 498-A of IPC being a continuing offence, court at Pakur had jurisdiction to try the case for the alleged offence in the facts and circumstances of this case. This court therefore, upholds the conclusion reached by the lower appellate court on the point of territorial jurisdiction. 19. This court therefore, upholds the conclusion reached by the lower appellate court on the point of territorial jurisdiction. 19. The judgment relied upon by the petitioner which is reported in Y. Abraham Ajith and Others vs. Inspector of Police, Chennai and Another, (2004) 8 SCC 100 does not apply to the facts and circumstances of the present case, in as much as, in the facts of the said case, no part of cause of action arose within the jurisdiction of the court concerned and the complaint itself disclosed that the complainant had left the place where she was residing with the husband and came to another city. Moreover, in the said case the point regarding jurisdiction was taken up at the threshold when after investigation the charge-sheet was filed by the police and the petition under Section 482 of Code of Criminal Procedure was filed before the High Court alleging that the Magistrate had no jurisdiction even to entertain the complaint and even if the allegation contained in the complaint are accepted in toto. The Hon’ble Supreme Court held that, it is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In the facts of the said case, the Hon’ble Supreme Court found that the facts disclosed by the complainant in the complaint petition did not disclose any part of cause of action having arisen at Chennai and therefore the Magistrate concerned was held to have no jurisdiction to deal with the matter and accordingly, the complaint was returned to the complainant. 20. Further, this Court also finds that Section 462 of Code of Criminal Procedure clearly provides that no finding, sentence or order of any criminal court shall be set-aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. This Court finds that the corresponding section of Code of Criminal Procedure under the old Act was Section 531 of the Code of Criminal Procedure which was subject matter for consideration in the judgment passed by the Hon’ble Supreme Court reported in Ram Chandra Prasad vs. State of Bihar, AIR 1961 SC 1629 wherein the Hon’ble Supreme Court refused to set-aside the conviction on the mere ground that the court had no jurisdiction to try the case as the facts of the case did not disclose that the error had occasioned a failure of justice. 21. This Court is of the considered view that the petitioner, on the one hand, had not taken any objection with regard to territorial jurisdiction before the learned trial court and has taken the same for the first time before the learned lower appellate court which has been taken before this Court in revisional jurisdiction also , but has neither argued nor could have argued that the petitioner has been prejudiced in any manner or error , if any on the point of territorial jurisdiction has in fact occasioned any failure of justice due to trial in the district of Pakur. The petitioner had fully participated in the trial by not only cross-examining the witnesses, but also by adducing his defence evidence. After having fully participated in the trial, the conviction of the petitioner cannot be set-aside merely on account of alleged lack of territorial jurisdiction as no prejudice or failure of justice has been shown to have occasioned by the trial of the petitioner at Pakur. Considering the aforesaid facts and circumstances and in view of the provision of Section 462 of Code of Criminal Procedure read with the judgment passed by the Hon’ble Supreme Court reported in AIR 1961 SC 1629 (supra) this Court is not inclined to set-aside the judgment of conviction of the petitioner on account of alleged lack of territorial jurisdiction. This is over and above the fact that the learned lower appellate court had clearly passed reasoned judgment by holding that there was sufficient territorial jurisdiction which has been upheld as above. 22. This Court finds that the Complainant (CW-2) has been able to prove her case that the petitioner had demanded Rs. 20,000/- from her and her father had given Rs. 22. This Court finds that the Complainant (CW-2) has been able to prove her case that the petitioner had demanded Rs. 20,000/- from her and her father had given Rs. 5,000/- twice to the petitioner and she remained in her matrimonial home for about 2 to 3 years and when the money was not paid, the petitioner again beat her and drove her out of her matrimonial home. CW-1 who is the elder sister of the Complainant has fully corroborated the allegations against the petitioner and has fully supported the case of the Complainant. 23. This Court finds that both the learned courts below have carefully scrutinized the evidences of the witnesses and have recorded concurrent findings of facts and have found sufficient evidence for conviction of the petitioner under Sections 498A of the Indian Penal Code. 24. This Court further finds that the learned trial court has already considered and rejected the arguments advanced on behalf of the petitioner to release him on probation of good conduct. This court is of the considered view that the petitioner is not entitled to any lenient view in the matter of sentence as the petitioner was declared absconder at the stage of trial and subsequently, he was arrested and tried and the allegation relates to cruelty to the complainant resulting in sufferings to the complainant, her father as well as her daughter. This Court further finds that the learned trial court has already taken a lenient view in sentencing the petitioner to undergo rigorous imprisonment for one year and a fine of Rs. 500/- only which has been maintained by the learned appellate court. This court is not inclined to interfere with the quantum of punishment imposed by the learned trial court and affirmed by the learned lower appellate court. 25. Considering the entire facts and circumstances of this case, this Court finds that both the learned courts below have passed well-reasoned judgments considering every aspect of the matter and every argument advanced on behalf of the petitioner. This Court does not find any illegality or perversity in the impugned judgments calling for any interference under revisional jurisdiction. 26. Accordingly, the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is hereby upheld and the sentence of the petitioner is maintained and this criminal revision petition is hereby dismissed. 27. This Court does not find any illegality or perversity in the impugned judgments calling for any interference under revisional jurisdiction. 26. Accordingly, the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is hereby upheld and the sentence of the petitioner is maintained and this criminal revision petition is hereby dismissed. 27. Interim order, if any, stands vacated. 28. The bail bond furnished by the petitioner is hereby cancelled. 29. Pending interlocutory application, if any, is also dismissed as not pressed. 30. Let the Lower Court Records be immediately sent back to the court concerned. 31. Let a copy of this order be communicated to the learned court below through “FAX/Email.” Revision Petition dismissed.