Jharkhand High Court
Abdul Hanan @ Md. Abdul Hanan Son Of Late ... vs The State Of Jharkhand on 12 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1362 of 2019
1. Abdul Hanan @ Md. Abdul Hanan son of Late Samsuddin, aged
about 56 years
2. Razia Khatoon @ Razia Bano wife of Md. Abdul Hanan @ Abdul
Hanan, aged about 48 years,
Both resident of Village- Fuljori, P.O.- Gadi Sirsia, P.S.- Gandey,
District- Giridih ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Khajo Khatun, wife of Md. Nasiruddin and daughter of
Kammruddin Mian. Presently residing at Gando, P.O. and P.S.-
Bengabad, District- Giridih ... ... Opp. Parties
With
Cr. Rev. No. 1361 of 2019
Md. Nasiruddin son of Md. Abdul Hanan, aged about 32 years,
resident of Village- Fuljori, P.O.- Gadi Sirsia, P.S.- Gandey,
District- Giridih ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Khajo Khatun, wife of Md. Nasiruddin and daughter of
Kammruddin Mian. Presently residing at Gando, P.O. and P.S.-
Bengabad, District- Giridih ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner(s) : Mr. Avishek Prasad, Advocate
Mr. Ashish Kumar, Advocate
For the State : Ms. Ruby Pandey, APP
: Mr. Naveen Kr. Ganjhu, APP
For the O.P. No. 2 : Mr. S.K. Roy, Advocate
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JUDGMENT
C.A.V. on 05.09.2024 Pronounced on 12.11.2024 These criminal revisions have been filed against the common judgment dated 13.08.2019 passed by learned Additional Sessions Judge-I, Giridih in Criminal Appeal No.73 of 2018 whereby and whereunder the learned appellate court has dismissed the appeal and has affirmed the judgment of conviction under Section 498-A of IPC 1 and the order of sentence dated 19.05.2018 passed by the learned Judicial Magistrate, 1st Class, Giridih in T.R. No.915 of 2018, arising out of Bengabad P.S. Case No. 34 of 2015 corresponding to G.R. Case No.618 of 2015.
2. The learned trial court has convicted the petitioners for the offence under Section 498-A of the Indian Penal Code (hereinafter referred to as the 'IPC') and has sentenced the petitioners to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo additional Simple Imprisonment for one month. The period of custody undergone by the petitioners was directed to be set off against the period of sentence awarded to them.
3. Cr. Revision No.1361 of 2019 has been filed by the husband of the informant and Cr. Revision No.1362 of 2019 has been filed by the father-in-law and mother-in-law of the informant. Submissions on behalf of the petitioners
4. The learned counsel for the petitioners, while assailing the impugned judgments, submitted that the impugned judgments are perverse and call for interference. He submitted that there has been repeated cases and counter cases between the parties and on each occasion, there was compromise and the informant of the case went to her matrimonial house. He submitted that these criminal revisions arise out of a complaint case which was sent for investigation by the police. He referred to the complaint petition of the informant and submitted that the informant has stated that there was demand of Rs.20,000/- and one colour mobile with camera. The cause of action to file the complaint arose with the allegation that there was a demand of Rs.50,000/- on 04.02.2015 and it was asserted that in the Anjuman, the accused persons had stated that unless Rs.50,000 is paid, they will not take the informant. The learned counsel further submitted that none of the witnesses has whispered a word in connection with demand of Rs.50,000 in Anjuman, which was said to be demanded on 2 03.02.2015. He further submitted that in one of the cases being Complaint Case No. 647 of 2010, the petitioners were acquitted on merits as well as on compromise.
5. The learned counsel further submitted that the witnesses in their cross-examinations have not stated the year and date on which the alleged demand was made from the informant of the case or from her family members, rather they have specifically stated that they do not remember the date and year of the demand. He also submitted that PW-4 who is the informant of the case stated that when she became pregnant for the second time, she was sent to her parents for delivery, and thereafter, the petitioners had filed a case for her bidai which was apparently on account of restitution of conjugal rights and she has further stated that after she was taken back, she was thrown out of her matrimonial house and she was deprived of food and cloths. The learned counsel further submitted that altogether three children were born out of wedlock which she has stated in Paragraph-11 of her examination-in-chief. The learned counsel submitted that PW-4 in her cross-examination has also failed to give the date of birth of the three children and specific date with regard to the demand of Rs.20,000/- and color mobile with camera. She has stated that since she is illiterate, she does not remember the date of such demand.
6. The learned counsel further submitted that the petitioners were already subjected to trial on account of the demand of Rs.20,000/- and mobile phone and were acquitted vide judgment dated 15.04.2014 on account of compromise and that the prosecution had not supported the case and therefore, on the same allegation, the petitioners could not be subjected to another trial. The learned counsel also submitted that the allegations remaining the same and the prosecution witnesses having failed to give the date of such demand, etc., the prosecution has failed to prove that there was any torture or demand after the acquittal in the criminal case.
37. The learned counsel further submitted that a plea was raised before the learned trial court and also before the learned appellate court by referring to Section 300 of Cr.P.C. that, for the same offence, a person cannot be tried twice. The learned counsel further submitted that the investigating officer of the case has also not been examined in the present case, which has prejudiced the case of the petitioners to a great extent. The learned counsel submitted that in view of the aforesaid facts and circumstances, the impugned judgments call for interference.
Submissions on behalf of the Opposite Parties
8. The learned counsel appearing on behalf of the Opposite Party No.2-Informant opposed the prayer and submitted that there are concurrent findings recorded by both the courts and there is no scope for re-appreciation of materials on record and coming to a different finding in revisional jurisdiction. He submitted that the conduct of the petitioners shows that they had been taking back the Opposite Party No.2 time and again on the basis of compromise and each time they have been throwing her out of her matrimonial house by torturing and depriving her of living condition. The learned counsel also submitted that it has come in evidence that the husband has also performed second marriage. However, during the course of argument, it is not in dispute that during the evidence, none of the witnesses have mentioned about demand of Rs.50,000/- during Anjuman.
9. The learned counsel further submitted that the conviction of the petitioners is based on the materials on record and basic ingredients for the offence under Section 498A of IPC have been duly satisfied and therefore, the impugned judgments do not call for any interference. He submitted that non-examination of the investigating officer of the case has not prejudiced the petitioners, inasmuch as, the victim and her family members have duly supported the prosecution case and they have been duly cross-examined.
410. The learned counsel for the State submitted that the learned Courts have not specifically mentioned as to whether they have convicted the petitioners by referring to Explanation (a) or Explanation (b) of Section 498A of IPC. The learned counsel submitted that there is consistent evidence on record to show that the Opposite Party No.2 was deprived of food and cloths, and such torture will certainly come under the Explanation (a) of 498A of the Indian Penal Code. They submitted that the demand of money was also fully supported by all the prosecution witnesses and merely because they have not been able to tell the date of such demand, such omission is not fatal to the prosecution case. The learned counsel further submitted that the Opposite Party No.2 has been examined as PW-4 and she has stated that she being an illiterate lady, she could not disclose the date of such demand and could not even disclose the date of birth of her three children. The learned counsel also submitted that torture of the Opposite Party No.2 is a continuous cause of action and since the beginning, she has been tortured and repeatedly thrown out of her matrimonial home and on each occasion, the petitioners have taken her back through compromise, but ultimately, she was thrown out of her matrimonial home.
Findings of this Court
11. The prosecution case is based on Complaint Case No.205/2015 presented by the Opposite Party No.2 on 04.02.2015 which was forwarded to the Officer-in-charge, Bengabad P.S. for registration of F.I.R. under Section 156(3) of Cr.P.C. and accordingly, the case was registered as Bengabad P.S. Case No.34 of 2015 under Sections 498A, 323 of IPC against the petitioners and Fudni Khatun, Allauddin Miyan, Shamsher Mian and Rahina Khatun.
12. The Informant in her Complaint alleged that her marriage with Md. Nasiruddin was solemnized on 06.06.2006 as per Muslim Rites and Customs and at the time of marriage, her family had given Rs. 47,000/- and cycle, watch, bed, etc. to the petitioners. After marriage, 5 she went to her matrimonial house and lived properly for about 18 months and out of the wedlock, one daughter namely, Maria Khatoon was born on 05.10.2007. Thereafter, the petitioners started torturing her and stopped providing food, cloths, etc. to her. Her mother-in-law namely, Razia Khatoon was working as Anganbari Sahayika in Village- Fuljori who asked her to bring the rest dowry amount of Rs.20,000/- and to make fixed deposit in the name of Maria Khatoon and one colour mobile phone with camera from her father. When her father showed his inability to fulfill the demand, on 10.05.2009 the petitioners assaulted and ousted the informant from her matrimonial house. She was pregnant at that time and having no option, she came to her parental house and disclosed the matter to her family members. On 25.10.2009, she gave birth to her second daughter at her parental house.
The informant further stated in the complaint that her husband Md. Nasiruddin had filed a Case No.103/2009 on 15.10.2009 in the court of the learned Family Judge, Giridih, but on the advice of her well- wishers, she compromised the case and went to her matrimonial house from court alongwith her two daughters. After some days, the petitioners again started torturing her physically and mentally and pressurizing her to make fixed deposit of Rs.20,000/- in the name of her second daughter also and on non-fulfilment of the demand, they started torturing her physically and mentally. On 19.04.2010, her father alongwith the witnesses went to her matrimonial house where he saw the petitioners assaulting the informant and she was lying in unconscious condition and on seeing them, the petitioners fled away from the house. Thereafter, her father took the informant to Gandey police station and disclosed the entire occurrence, but she was advised that she had gone to her matrimonial house after bidai from court and therefore, she should file case in court. Thereafter, she went to her parental house after getting medical treatment and on 06.05.2010, she filed Case No.647/2010 under Sections 498A, 323, 354 of IPC and 6 Section 3/4 of the Dowry Prohibition Act, but it was disposed of on the basis of compromise and the petitioners took her alongwith her children to their house. However, there was no change in the conduct of the petitioners and they continued to torture her and they demanded Rs. 50,000/- as dowry to bring from her father. On non-fulfilment of the demand, the petitioners on 04.05.2014 again assaulted and ousted her from her matrimonial house alongwith her children. Thereafter, on 06.05.2014, she filed Case No.813/2014 under Sections 498A, 323, 354, 379 of IPC and Section 3 / 4 of Dowry Prohibition Act, which was also disposed of on the basis of compromise and at that time, she was a mother of 03 children. Thereafter, in Maintenance Case No.152/2010, order dated 21.05.2011 was passed by the learned Family Court, Giridih in favour of the informant and her children, which was also compromised and the petitioners took the informant with them on 25.11.2014. She further alleged that her husband- Md. Nasiruddin, with the help of his parents, has solemnized second marriage with one Fudni Khatoon and the petitioners under a criminal conspiracy assaulted her and stopped providing food to her and asked her to go away from her matrimonial house. On 01.02.2015, the petitioners assaulted and ousted the informant from her matrimonial house and she came to her parental house. On 03.02.2015, one meeting was held near Maheshmunda Railway Station, Giridih which was attended by both the parties and punch, but the petitioners demanded Rs.50,000/- and on non-fulfilment of the demand, they refused to continue further talks. The petitioners assaulted the informant and her father and threatened that if the petitioners will be compelled to take the informant to their house, the informant will be killed and thereafter, they went away. Thereafter, she filed the present case.
13. After completing investigation, the Investigating Officer submitted Charge-sheet No.166/2015 dated 31.07.2015 under Section 498A/34 of IPC and Section 3/4 of the Dowry Prohibition Act against 7 Abdul Hanan and Razia Khatoon, showing Md. Nasiruddin as absconder and showing lack of evidence against rest accused persons. On 08.09.2015, cognizance of the offence under Section 498A/34 of IPC and Sections 3/4 of the Dowry Prohibition Act was taken in the case against Abdul Hanan and Razia Khatoon. On the strength of process under Section 83 of Cr.P.C., Md. Nasiruddin was arrested and remanded in the present case on 17.09.2015.
14. On 03.03.2016 (signed on 06.04.2018), charge under Section 498A of IPC was framed against the petitioners which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
15. In course of trial, the prosecution examined altogether four witnesses. PW-1 is Kamruddin Mian, PW-2 is Maqbool Ansari, PW-3 is Jainul Ansari and PW-4 is Khajo Khatoon who is the informant / complainant of the case. PW-4 exhibited the signature of the advocate on the Complaint Petition as documentary evidence.
16. PW-1 is the father of the informant. In his examination-in-chief, he deposed that the marriage of his daughter with Md. Nasiruddin was solemnised on 06.06.2006 as per Muslim Rites and Customs and he had given Rs.47,000/- cash, watch, bed, utensils, etc. to his daughter at the time of her marriage. His daughter lived peacefully for one half years at her matrimonial house and one daughter namely, Maria Khatoon was born. Thereafter, the Informant was assaulted for demand of Rs.20,000/- and one colour television and on non- fulfillment of the demand, she was driven out. He further deposed that the Informant alongwith her two daughters and one son are residing in his house. In the year 2011, the learned Family Court had directed Md. Nasiruddin to pay Rs.2,000/- per month, but he did not pay. When compromise reached in the case of Dowry, Md. Nasiruddin used to take the Informant back to her matrimonial home, but he used to drive out her again. Md. Nasiruddin had taken the Informant four times, but 8 he drove out her after assaulting her. Md. Nasiruddin has solemnized second marriage. He identified all the petitioners in court. In his cross-examination, he admitted that his daughter had filed 03 other cases against the petitioners in which compromise was reached before the learned Family Court, bidai was given and Md. Nasiruddin took his daughter, but after assaulting, he again drove out her. Md. Nasiruddin had taken back the informant three times. After the birth of Aliya Khatoon, Rs.20,000/- and one colour T.V. were demanded. The informant never lived in any rented house and all the family members are living jointly. He further deposed that he had seen that the Informant in unconscious state due to assault and he had reported the matter to the police station, but he cannot produce any paper. Panchayati was held several times, but no paper was prepared.
17. PW-4 is the informant of the case and in her examination-in- chief, she deposed that her marriage with Md. Nasiruddin was solemnised on 06.06.2006 according to Muslim Rites and Customs and at that time, bicycle, watch and cash were given to him as presents. Thereafter, she went to her matrimonial house at Fuljori and lived there peacefully for one and half years and in the meantime, her elder daughter was born. Thereafter, the petitioners demanded Rs.20,000/- to make fixed deposit in the name of her daughter and also demanded one mobile with camera. She stated that all the petitioners used to make the demand. When she informed the matter to her father and brother after calling them, a panchayati of Anjuman was held where the petitioners agreed to keep her. But the petitioners again tortured her when the demand could not be fulfilled by her parents. When she became pregnant for the second time, she was sent to her parental house where she delivered her second child. Thereafter, the petitioners filed a case for her bidai on the basis of which she went to her matrimonial house after bidai. Thereafter, the petitioners brutally assaulted her and stopped providing food and clothes to her. When she informed about the assault to her parents, her parents went 9 to the police station, but no action was taken. Her father admitted her in Sadar Hospital and thereafter, she filed the Complaint case. She exhibited the signature of her advocate namely, Girish Kumar as Exhibit-1 and identified her thumb impression on the Complaint. She further stated that her husband Md. Nasiruddin solemnised second marriage and thereafter, he assaulted the Informant and drove out her and since then, she is residing at her parental house. She had given statement to the police. She identified all the petitioners in court. She further stated that she is residing at her parental house with her three children.
In her cross-examination, she admitted that she had filed two cases against the petitioners, but all the cases were compromised and she was taken to her matrimonial house. In the restitution case filed by her husband, an undertaking was given by her husband to keep her properly, but she was not kept properly. She further stated that as she is illiterate, she cannot say as to on which day and date, Rs.20,000/- and colour mobile with camera was demanded and she also cannot say the day and date on which she was driven out first time from her matrimonial house after assaulting her. She also cannot say as to how many times and the day and date on which dowry was demanded. She admitted that she was treated at Sadar Hospital, Giridih, but she had not received any paper. The petitioners had taken her 3 - 4 times from court to her matrimonial house. She had stated before police that all the petitioners used to demand dowry jointly and they will keep her only when Rs.20,000/- and the mobile with camera will be given. Her father was present with her, when she had filed the case.
18. P.W-2 is the uncle of the informant and PW-3 is the brother of the informant who have fully supported the prosecution Case.
19. After completion of prosecution evidence, the statements of the petitioners were recorded under Section 313 of Cr.P.C. wherein they simply denied the incriminating evidences put to them and claimed to be innocent. The petitioners did not adduce any oral evidence in their 10 defence. However, some documents were filed on behalf of the defence, which were marked as exhibits in the following manner:
Exhibit-A C.C. of Sanha No.251/2015 dated 09.02.2015. Exhibit-B C.C. of Complaint Petition No.539/2010.
Exhibit-C C.C. of Judgment dated 15.04.2014 passed in Trial
No.833/2010 arising out of Complaint Case
No.647/2010.
Exhibit-D C.C. of Compromise Petition filed in T.M. Suit
No.66/2010 of the court of the learned Family Judge, Giridih.
Exhibit-E C.C. of Compromise Petition filed in Title (M) Suit No.103/2009 of the court of the learned Family Judge, Giridih.
20. After conclusion of trial, the learned trial court considered the materials on record and recorded its findings at Para-14 that all the prosecution witnesses have supported the occurrence that the accused persons namely, Abdul Hanan, Razia Khatoon and Nasiruddin had demanded Rs.20,000/- and one mobile with colour camera and on non-fulfilment of the demand, they assaulted and tortured the informant. The informant in her Complaint alleged that after compromise in Complaint Case No.813/2014 and Maintenance Case No.152/2010, the petitioners took the informant and three children after bidai on 25.11.2014 and thereafter, they assaulted her and did not provide sufficient food to her and on 01.08.2015, they assaulted her and ousted her from her matrimonial house. In support of the aforesaid facts, the informant-PW-4 has clearly stated at Para-6 of her examination-in-chief that the accused had filed a case in court for bidai and on the basis of which she went to her matrimonial house after badai. Thereafter, they brutally assaulted her and stopped providing food and clothes to her. PW-3 has stated in his evidence that the petitioners had taken away his sister with them after bidai on the basis of the case filed in the learned Family Court, kept her properly for few days and drove out from her matrimonial house after 11 assaulting her. PW-1 has stated in his evidence that the petitioners used to take his daughter after compromise in the Dowry Act case and drive out her after assaulting her. They took his daughter four times, but drove out her after assaulting her and now he will not send his daughter to her matrimonial house.
21. The learned trial court recorded that from the evidence of the prosecution witnesses, it is clear that the act committed to the informant by the accused persons comes within the purview of cruelty under Section 498A of IPC. The learned trial court further held that from perusal of the evidence of the prosecution witnesses, it is clear that the informant was tortured and assaulted which establish cruelty committed to the Informant by her husband, mother-in-law and father- in-law. The defence during cross-examination of the prosecution witnesses failed to elicit any such facts which could lead to a conclusion that the accused persons had not committed cruelty to the informant.
22. The learned trial court also considered the Exhibit-B filed by the defence which is certified copy of Complaint Case No.539/2010 filed on 19.04.2010 against the informant and others and rejected the contentions of the defence that the informant had filed the present case only with a view to save herself from Complaint Case No.539/2010 and observed that the Matrimonial Case No.66/2010 ended in compromise on 15.06.2010 which was apparent from Exhibit-D filed by the defence. The learned trial court also considered the Exhibit-A of the defence and recorded that the informant has filed the Complaint of the present case on 04.02.2015, whereas the Sanha No.251/2015 dated 09.02.2015 (Exhibit-A) was filed subsequently and therefore, the Sanha has no force against the informant. The learned trial court also considered Exhibit-E of the defence and recorded that from perusal of the certified copy of compromise petition filed in Title (M) Suit No.103/2009 (Exhibit-E) and the compromise petition filed in Matrimonial Case No.66/2010, it transpired that the informant and 12 Md. Nasiruddin had agreed to live together in the matrimonial house of the informant and this fact has been admitted by the Informant in her evidence.
23. The learned trial court also considered the arguments and documentary evidences of the defence and recorded that the defence has relied upon Exhibit-C and argued that the accused cannot be tried, convicted or acquitted more than once for the same offence. The learned trial court held that from perusal of Exhibit-C, it transpired that the accused persons were acquitted in the criminal case under Section 498A, 354 of IPC on the basis of compromise. The trial court also recorded that the informant has filed the Complaint Case No.647/2010 (Trial No.833/2010) in connection with the occurrence of 18.04.2010, whereas the present case has been filed in connection with occurrence from 10.05.2009 to till the date of filing the Complaint and as such, the accused persons have committed fresh offence against the informant. The learned trial court held that the accused persons can be tried for the fresh offence and Section 300 of Cr.P.C. is not applicable in such situation.
24. The learned trial court recorded that the case was disposed of on the basis of the compromise vide exhibit C and the informant was taken to her matrimonial house on the basis of compromise but the accused persons committed cruelty to her and the prosecution has proved the aforesaid facts beyond reasonable doubt. The learned trial court recorded that the evidence of the prosecution witnesses is fully credible and natural and there is no reason to disbelieve their evidence. The accused persons did not produce any evidence to prove that they have been falsely implicated in the case. The learned trial court recorded its conclusion at Para-15 that from perusal of the entire evidence adduced by the prosecution and the materials available on the records of the case the prosecution has been able to prove the charge under Section 498A of IPC against the accused persons.
1325. The learned appellate court after hearing the parties, recorded its findings at Para-7 which reads as under:
"7. Perused the judgment of the learned court below and I find that both oral and documentary evidence have been discussed. The perusal of deposition of Khajo Khatoon (P.W.4) the informant transpires to this court that she has fully supported the prosecution case as per her complaint petition (Ext.1) and she supported the demand of dowry by all the appellants being her husband and in-laws and in para- 16, 17 and 18 of the cross-examination, the occurrence has been corroborated by this witness. In para 25 of the cross- examination, she stated that she was medically treated in Sadar Hospital, Giridih, but she was not handed over any medical prescription. In para 27 of the cross-examination, she stated that her husband the appellant took thrice and four times from court on farewell (Bidai) to her matrimonial home and the prosecution case has been supported and corroborated in the learned court below by Kamruddin Mian (P.W.1), Makbool Ansari (P.W.2) and Jainul Ansari (P.W.3) and the perusal of lower court record transpires to this court that the prosecution examined all the material witnesses in the trial court. The perusal of impugned judgment and lower court record transpires to this court that in this case, both the I.O's namely, A.S.I. Ramswroop Singh and A.S.I. Gomesh Soren have not been examined, nor any finding has been given in this regard by the learned court below, but in my considered opinion, the evidence of I.O. is only corroborative in nature so the non- examination of the I.O. is not fatal and in its absence, the evidence of the informant and other material witnesses including the evidence of Khajo Khatoon (P.W.4) cannot be thrown and in my considered opinion, the non-examination of I.O. is not fatal for convicting the appellants because in my considered opinion, no substantial prejudice has been demonstrated to be caused on behalf of the appellants due to non-examination of the I.O......................"
26. The appellate court in paragraph 7 itself held that the petitioners have not been able to shake the credibility of the eye witness and no material contradiction was shown in the case of the prosecution and under facts and circumstances, non-examination of the Investigating Officer as a witness was of no consequence and no prejudice was 14 shown to have been caused to the petitioners by such non- examination. The appellate court also observed that the perusal of deposition of Kamruddin Mian (P.W.1), Maqbool Ansari (P.W.2), Jainul Ansari (P.W.3) coupled with evidence of Khajo Khatoon (P.W.4), the informant showed that the prosecution has examined all the material witnesses and same appeared to be cogent, convincing and trustworthy and the court found no reason for false implication of the husband and in-laws of the informant. The appellate court did not find any major infirmity or incorrectness or illegality in the finding of the learned trial court and the minor discrepancies in the course of deposition are probable and were of no consequences. The learned appellate court also held that exhibits A, B, C, D and E proved by the petitioners were not sufficient to discredit the prosecution case. With regards to sentencing, the appellate court has also considered the judgement reported in AIR 2013 SC 3272 (Hazra Singh Versus Raj Kumar) and observed that the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence and further observed that to give lesser punishment for the accused would be to render the justice system to be doubtful. The appellate court ultimately concluded as under: -
" Therefore in the facts and circumstances discussed above relying the above principle laid down by the Hon'ble Supreme Court of India and the Hon'ble Jharkhand High Court, in my considered opinion and view the learned court below has rightly appreciated the facts and law and the learned court below properly analyzed and scrutinized the evidence available on the lower court record noticing law on the point and the learned court below properly appreciated the evidence on record and passed the judgment and order of the conviction against the appellants and the contentions raised by the learned counsel of the appellant are not tenable and the judgment and order of sentenced does not require any interference by this court in appeal and in my considered view and opinion the prosecution has succeeded in proving its case beyond the shadow of all reasonable and probable doubts."15
27. On the basis of the aforesaid findings, the learned appellate court dismissed the criminal appeal and affirmed the judgment of conviction and the order of sentence passed against the petitioners by the learned trial court.
28. The arguments of the petitioners before this Court are primarily based on exhibit C and it has been submitted that when the earlier case ended in compromise and the petitioners were acquitted, the present case was itself barred under Section 300 of Cr.P.C. With respect to subsequent cause of action, it has been submitted that there was allegation of demand of Rs. 50,000/- as dowry after compromise and on account of non-fulfillment of such demand, the petitioners on 04.05.2014 again assaulted the informant and ousted her from her matrimonial home along with her children but none of the witnesses have supported the alleged demand of Rs. 50,000/- and in absence of any demand after compromise offence under section 498A was not made out.
29. This Court finds that the argument of the petitioners so far as it refers to plea of double jeopardy by referring to Section 300 of Cr.P.C is concerned , the same has been considered by the learned trial court by holding that from perusal of Exhibit C [judgement arising out of Complaint Case No. 647 of 2010, Trial Case No. 833 of 2010] it transpired that the accused persons were acquitted in criminal case for offence under Sections 498A/354 of IPC on the basis of compromise and also held that the said case was in connection with the occurrence which had taken place on 18.04.2010 whereas the present case was filed in connection with occurrence right from 10.05.2009 till the date of filing the Complaint and the accused persons had committed fresh offence against the informant. Thus, the learned trial court was of the view that judgement passed in Complaint Case No. 647 of 2010 [Trial Case No. 833 of 2010] as contained in Exhibit C ended in compromise and was also of the view that the scope of allegations while deciding the case vide Exhibit C was not same as that of the present case.
1630. Sections 257 and 300 of Cr.P.C are quoted as under: -
257. Withdrawal of complaint.- If a complainant, at any time before a final order is passed in any case under this Chapter, satisfied the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.
300. Person once convicted or acquitted not to be tried for same offence.- (1) A persons who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2) A persons acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be after wards tried for such last-mentioned offence, it the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
1731. Section 257 of Cr.P.C clearly provides that if the complainant at any time before a final order is passed, satisfies the Magistrate that there are sufficient grounds for permitting the complainant to withdraw his complaint against the accused, the Magistrate may permit the complainant to withdraw the same and shall thereupon acquit the accused against whom the complaint is so withdrawn.
32. Section 300 of Cr.P.C provides that a person who has once been tried by court of competent jurisdiction for an offence and is either convicted or acquitted for such offence and while such conviction and acquittal remains in force, will not be liable to be tried again for the same offence.
33. Condition precedent for applicability of Section 300(1) of Cr.P.C. is that the accused persons must have been either previously acquitted or previously convicted for the same offence. Meaning thereby that a person cannot be put to trial again for the same offence in which he has been acquitted or convicted previously. However, the rule under Section 300 Cr.P.C is not absolute and there are certain exceptions which have been carved out under Section 300 Cr.P.C. itself. The essential elements of Section 300(1) are:
(i) The accused must have been tried by competent court.
(ii) The accused must have been convicted or acquitted.
(iii) The Judgment of conviction or acquittal was in force.
(iv) The accused should have been put to trial for the same offence in second time.
34. The perusal of the judgment as contained in Exhibit C arising out of Complaint Case No. 647 of 2010 [Trial Case No. 833 of 2010] for offence under Sections 498A/323 and 354 of IPC reveals that the case was filed arising out of a cause of action which had happened on 18.04.2010 at evening 05:00 PM and on 19.04.2010 at 7:00 AM although, in the said case the entire narration of events was given right from marriage.
1835. The prosecution story as recorded in exhibit C continued till the incident on 19.04.2010 when the father of the complainant visited her matrimonial house and witnessed that the complainant was being assaulted by the accused persons and found her in unconscious state. It was also mentioned in the prosecution case that the father took the complainant to a local police station but the local police stated that since the girl was taken back to the matrimonial home by the order of the Court, therefore, she should be taken to the hospital which led to delay in filing the complaint case. Further, perusal of the judgment of the aforesaid complaint case Exhibit C reveals that at the stage of inquiry three witnesses were examined and then cognizance was taken for the offence under Section 498A/354 of IPC and thereafter before charge evidence was also taken in which four witnesses were examined and charge was framed on 15.04.2014 against all the accused persons for offence under section 498A/354 of IPC and then the accused claimed to be not guilty and were put to trial. It has been recorded that on the same day, that is on 15.04.2014 repeated opportunities were given but no witnesses have appeared on 15.04.2014 and then the prosecution evidence was closed on 15.04.2014 itself. It has also been recorded that no documentary evidence was produced. On 15.04.2014 itself the case was finally decided wherein it has been recorded that parties were heard and the complainant had entered into compromise with the accused and the compromise petition was also filed in which she stated that she had filed the case against all the three accused persons in relation to demand of dowry but at the time of compromise she was staying properly in her matrimonial home and that she had entered into compromise on her own free will and had also stated that the matter arising out of domestic dispute and she was going to stay in her matrimonial home and therefore, she did not want to lead any evidence.
1936. In the aforesaid background, the court (in exhibit-C ) recorded that the offence was not compoundable under Section 320 Cr.P.C but the case arises out of matrimonial/family dispute where both parties have voluntarily entered into compromise, therefore, the accused should be released on the basis of compromise and also recorded that the complainant has failed to prove the charges against the accused. Upon reading of the aforesaid judgment [Exhibit-C], it is apparent that there was no trial at all and the case was decided solely on the basis of compromise and this happened after the charge was framed under Section 498A/354 of IPC. It is also apparent that the informant never withdrew the complaint but did not want to proceed due to compromise. Thus, Exhibit-C is not a case of withdrawal of complaint by the wife leading to acquittal which can lead to acquittal in terms of Section 257 of Cr.P.C by the permission of the court. The petitioners cannot be said to have been acquitted vide exhibit C. The present case is a case where the wife did not choose to proceed on account of compromise although the offence was not compoundable as recorded by the court in Exhibit-C itself but did not withdraw the complaint. This Court is of the considered view that Exhibit-C does not come within the meaning of 'acquittal' as contemplated under Section 300(1) of Cr.P.C. This Court is of the considered view that entering into compromise in non-compoundable offence like Section 498A/354 of IPC and choosing not to withdraw the complaint or seeking permission of the court to withdraw the complaint itself does not amount to acquittal. This is over and above the fact that admittedly there was another case filed by the informant being Case No.813/2014 under Sections 498A, 323, 354, 379 of IPC and Section 3/4 of the Dowry Prohibition Act, but neither the allegations made therein nor the final order was brought on record and it was simply stated that it also ended in compromise. The learned trial court has also recorded that the allegations made in the present case covers the entire incidents right from the year 2009 which was not the situation in the case 20 arising out of Complaint Case No. 647 of 2010 [Trial Case No. 833 of 2010] (exhibit-C).
37. Considering the totality of facts and circumstances, this Court finds that the learned trial court has rightly not given the benefit of Section 300 of Cr.P.C. by citing cogent reasons and the appellate court has also upheld the conviction by considering the materials on record and observing that Exhibit A to E produced by the defence does not help the defence in any manner. The fact remains that the informant was taken back to her matrimonial house on repeated occasion on the basis of compromise with respect to the allegation of demand and torture and on each occasion, she was thrown out of her matrimonial house with her children by assaulting her and the present case arises out of last such incident where after compromise the informant was assaulted and thrown out of her matrimonial house.
38. This Court finds that there are concurrent findings recorded by the learned courts bringing home the ingredients of offence under Section 498-A of IPC against all the three accused persons i.e. husband, father-in-law and mother-in-law who were living together in the matrimonial home of the informant. The judgments have been passed upon appreciating materials on record and the learned trial court had specifically rejected the plea of double jeopardy based on Section 300 Cr.P.C. by citing reasons and the judgment of the learned trial court was ultimately upheld by the learned appellate court. This Court finds no illegality, perversity or material irregularity in the judgments passed by the learned courts.
39. So far as the conviction of the petitioners are concerned, it does not call for any interference in revisional jurisdiction of this Court. On the point of sentence.
40. So far as the sentence is concerned, this Court finds that the law is well-settled that it is the duty of the Court to see that appropriate sentence is imposed regard being had to the commission of crime and its impact on the social order. The requirement of adequate 21 punishment cannot be lightly ignored. At the time of sentencing, the courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. While considering the sentence, the circumstances in each case, the nature of crime, the manner it was planned and committed, the motive for commission of crime, the conduct of the accused, the nature of weapons and all other attending circumstances are relevant facts.
41. The husband namely, Md. Nasiruddin, the petitioner in Cr. Rev. No. 1361 of 2019 has remained in jail custody from 17.09.2015 to 06.10.2015 during investigation and from 18.03.2020 to 07.10.2020 during pendency of the criminal revision and as such, Md. Nasiruddin has remained in jail custody for a total period of 07 months 08 days.
42. The father-in-law namely, Abdul Hanan @ Md. Abdul Hanan. The petitioner in Cr. Rev. No. 1362 of 2019 has remained in jail custody from 05.05.2015 to 28.05.2015 during investigation and from 11.11.2019 to 13.05.2020 during pendency of the criminal revision and as such, he has remained in jail custody for a total period of 06 months 26 days.
43. The mother-in-law namely, Razia Khatoon @ Razia Bano, the petitioner in Cr. Rev. No. 1362 of 2019 was all along on bail during investigation and trial and she has remained in jail custody from 11.11.2019 to 13.05.2020 i.e. for a period of 06 months and 02 days during pendency of the criminal revision.
44. The manner in which the offence has been committed in the present cases and continuous suffering of the informant of the case who was thrown out of her matrimonial house repeatedly after being taken back to her matrimonial house through compromise of criminal cases and maintenance case filed by her cannot be lost sight of. The informant was lastly thrown out of her matrimonial house with three children which led to filing of the present case. This Court is of the considered view that the punishment imposed is adequate and 22 commensurate with the nature and the manner in which the offence under section 498A has been committed. This Court also finds that even the order of maintenance which was passed in favour of the informant and children also ended in a compromise and soon thereafter, she was thrown out of her matrimonial home. This Court is of the considered view that mere taking the accused persons into custody does not fully serve the concern of the informant victim with three children born out of wedlock. The fine imposed is only to the extent of Rs. 1,000/- upon each of the accused persons and no victim compensation has been granted.
45. In such circumstances, in order to secure ends of justice, this Court finds it proper to modify the sentence of the accused persons by imposing certain fine amount and reducing the sentence so that the fine amount be remitted to the informant (victim) .
46. The records reveal that the father-in-law, namely, Abdul Hanan @ Md. Abdul Hanan and mother-in-law namely, Razia Khatoon @ Razia Bano whose present age are about 61 and 53 years respectively have remained in custody for a total period of 6 months 26 days and 6 months 2 days respectively. Their sentence is modified and reduced to 1 year with fine of Rs. 50,000/- each to be deposited by them within a period of two months from today. In case of non-deposit of the fine amount, they would serve the sentence as imposed by the learned court.
47. So far as the husband, namely, Md. Nasiruddin is concerned, he has remained in custody for a total period of 7 months 8 days. His sentence is modified and reduced to 1 and 1/2 years with fine of Rs. 2,00,000/- (Rs. Two lakhs) to be deposited by him within a period of two months from today. In case of non-deposit of the fine amount, he would serve the sentence as imposed by the learned court.
48. The entire fine amount so deposited by the petitioners is directed to be remitted to the informant after due identification.
2349. These revision applications are hereby disposed of with the aforesaid modification of sentence.
50. Pending I.A., if any, is closed.
51. Interim order, if any, stands vacated.
52. Bail bond furnished by the petitioners is hereby cancelled.
53. Let the records be immediately sent back to the court concerned.
54. Let a copy of this order be communicated to the court concerned through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.) Mukul/Rakesh 24 25