Court: Patna High Court
Bench: JUSTICE Aditya Kumar Trivedi
Md. Serfuddin @ Sharafa Vs. State Of Bihar & Anr. On 18 December 2013
Law Point:
Indian Penal Code, 1860 — Section 498A — Cruelty — Allegation of brutal assault against husband — Testimony of PWs 1 and 2 not reliable — Taking into account nature of evidence and admission of PW 4 in consonance with inherent defect persisting on record on account of illegality during framing of charge as well as at stage of recording of statement in irresponsible, casual manner and its cumulative effect, did not justify sustenance of concurrent finding of lower Court — Conviction set aside.
JUDGEMENT
Petitioner/husband has challenged the successive judgments dated 22.8.2012 passed by IV Additional Sessions Judge, Nalanda at Biharsharif in Cr. Appeal No. 7 of 2007 confirming judgment of conviction and sentence dated 27.12.2006 passed by S.D.J.M., Nalanda at Biharsharif in Complaint Case No. 809(c) of 2001 convicting and sentencing the petitioner R.I. for two years for an offence punishable under Section 498A of the IPC. However set aside the same relating to 380 of the IPC.
2. PW 4/opposite party No. 2, Jakia Bano filed complaint petition showing the date of occurrence 18.9.2001 disclosing therein that she was married with Serfuddin on 2.1.1997 as per Muslim rites and custom and on the eve of marriage, her husband was given the articles (node failed) in gift. Thereafter, she had gone to village-Lodipur where she begun to live her marital life happily. It was further disclosed that Nikah was performed one year earlier in presence of Wali Alam as well as Md. Rashid.
3. Then she alleged that after staying for six months her husband directed her to borrow Rs. 50,000 from her brother Md. Jiauddin to facilitate purchase of old truck but the same was refused by the complainant on account of feeble financial condition of her brother. However, the demand continued. It has further been disclosed that on 5.6.2001 her husband became infuriated after hearing her denial over which she was brutally assaulted and then she was locked in a room. Again he advanced demand on the following morning, which continued even after her denial. To save her life and agony, she returned back to her Naihar in absence of her husband along with her belongings as well as ornaments. It has further been disclosed that on 18.9.2000 her husband came to her place and disclosed that remaining amount has been managed by him but still there is shortage of Rs. 30,000 and so the aforesaid amount be provided to him. She had disclosed the aforesaid event to her brother who shows his helplessness. Her husband stayed at the night. On following morning he slipped along with ornaments belonging to the complainant.
4. On the basis of the aforesaid complaint petition an inquiry under Section 202, Cr .P.C. commenced whereupon petitioner along with Mosmat Bibi Akiman were summoned to face trial. During course of trial, as is evident from order dated 11.12.2004, the trial of Bibi Akiman was separated on account of her death while the trial continued against the petitioner and after concluding the same met with ultimate result, the subject matter of instant revision.
5. It has been submitted on behalf of petitioner that the successive Courts below have failed to acknowledge the infirmities persisting on the record. The first and foremost ground taken by the learned Counsel for the petitioner happens to be with regard to non-examination of Jiauddin, the brother of complainant Jakia Bano in whose house the occurrence dated 18.9.2001 is alleged to have taken place nor any explanation has been furnished on behalf of prosecution for his non-examination. It has also been submitted that five witnesses have been named in the complaint petition out of whom only two have been examined. That means to say whoever been examined in this case are PW 1 Abdul Rashid, PW 2 Md. Wali Alam, PW 3 Rajnandan and PW 4 Jakia Bano.
6. It has further been submitted that Jakia Bano on her own deserted the petitioner for which Matrimonial Suit No. 6 of 2001 was brought up wherein on account of negligence on the part of Jakia Bano, the same was decided in ex parte manner decreeing the prayer of the petitioner for divorce however, subsequently the aforesaid order has been recalled. By this disclosure, it has been submitted that the allegation of torture and cruelty as alleged by the complainant happens to be false and frivolous rather it is complainant who is on fault at every step. It has also been submitted that just to give ample opportunity to his wife to join, petitioner had filed matrimonial suit for divorce otherwise would have divorced the wife by pronouncing talak three times, the simplest mode of divorce prescribed under Mohammedan Law. Therefore, from the conduct of the petitioner it is evident that he never intended to masticate the relationship.
7. Then, it has been submitted that taking into account the nature of the evidence so deposed by PW 1, PW 2, PW 3, it is apparent that no theme of torture and cruelty at the hands of petitioner is found properly alleged/proved by them save and except on the basis of hearsay evidence and having such nature of evidence did not justify the allegation so attributed by complainant on account of being incorporated. Furthermore, the appellate Court had disbelieved the story regarding stealthily taking away ornaments by the petitioner on 18.9.2001 and modified the conviction recorded by the learned Trial Court on that very score. Therefore, no offence punishable under Section 498A of the IPC is coming out and found substantiated from the evidence of the witnesses because of the fact that having not been supported by other corroborative circumstances, the evidence of complainant cannot treated as full of credibility, truthfulness.
8. At the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that the concurrent factual judgment of confirmation should not be disturbed during course of exercising of revisional jurisdiction because of the fact that apparently no error or illegality is visualizing from the successive judgments. It has further been submitted that the learned lower Courts below have properly considered the evidence of the witnesses during course of appraisal to conclude against the petitioner regarding his guilt for an offence punishable under Section 498A of the IPC.
9. In spite of having been noticed the opposite party No. 2 Jakia Bano has not appeared and as such his side remained unattended.
10. It is needless to say that during exercise of revisional jurisdiction, that too, relating to concurrent finding, the revisional Court should feel properly bracketed in general rule save and except where glaring defect or illegality is perceived from the successive judgments. Taking into account the aforesaid basic rule of prudence while exercising revisional jurisdiction as well as the clutches so perceived over its application in general way, the lower Court record has been gone through and after perusal of the same, it is apparent that the learned Courts below have over sighted the glaring defect so coming out from the record.
11. The complaint petition speaks with regard to date of occurrence 18.9.2001 and the place of occurrence, though not disclosed in the complaint petition but from the evidence of witnesses as well as from the format of charge, it happens to be Mohalla-Diarah of Biharsharif town where on 18.9.2001 the petitioner Md. Serfuddin came, stayed and then on the following morning decamped with the ornaments belonging to the complainant. On that day, there happens to be no disclosure in the complaint petition regarding the theme of torture and cruelty at the end of petitioner Md. Serfuddin nor the evidence before charge divulged. Furthermore, the story of theft has been disbelived by the appellate Court, then in that event, the prosecution for occurrence dated 18.9.2001 is found not at all maintainable.
12. Apart from this, according to complaint petition as well as from the evidence of the witnesses whatever allegation has been perceived regarding cruelty and torture happens to be much before 18.9.2001 which the complainant met at her Sasural lying at Village Lodipur but for that there happens to be no charge. On the basis of defect of charge, the conviction cannot be disturbed in terms of Section 464 of the Cr.P.C. but that happens to be not a single instance rather when the statement of the accused recorded under Section 313, Cr .P.C. has been gone through, it is evident that neither the date of occurrence nor the place of occurrence has been disclosed therein, apart from the fact that all kind of incriminating material having so placed during evidence by the complainant has not been confronted to him. That means to say, there happens to be utter violation of mandate of law in its true sense.
13. Now, coming to the evidence of the witnesses, less said is better. PW 1, Abdul Rasid had asserted the theme of Nikah as well as with regard to torture which she faced at her sasural on account of non-fulfilment of demand of Rs. 50,000. However, from para-5 of his examination-in-chief he had clearly stated that all the aforesaid event he came to know from the complainant herself. In para-7 of his cross-examination he had stated that he had not seen the act of assault as well as payment of money.
14. PW 2 is Wali Mohammed, another brother of complainant who had reiterated the same version but in para-2 he had stated that all the events was disclosed by her (complainant). In para-3 he had disclosed that he tried to patch up the matter but failed. In para-7 he had disclosed that complainant came back to her Naihar on the following day when an attempt was made to put her on fire. He had further disclosed that after death of his parents complainant was residing with him.
15. PW 3 is the witness over departure of Md. Serfuddin on 18.9.2001 from the house of complainant however been disbelived by the appellate Court while acquitting petitioner under Section 360, IPC.
16. PW 4 is complainant herself. She had reiterated the same version whatever been alleged and disclosed in the complaint petition. During her cross-examination she had admitted that after six month of marriage they cease to continue with physical relationship. Then had denied the suggestion that on 1.3.2001 her husband had divorced and for that Suit No. 6 of 2001 was filed wherein the ex parte decree was passed. However, she had disclosed that she had taken proper step to revoke the same. In para-6 she had disclosed that she was staying with her brother Jiauddin. Therefore, she had put question mark over evidence of PW 2, her another brother so much so that she kept mum over discloser made by her either to PW 1 or PW 2 regarding cruelty/torture.
17. Thus, taking into account the nature of the evidence as well as admission of PW 4 under para-5 in consonance with the inherent defect persisting on the record on account of illegality during framing of charge as well as at the stage of recording of statement in irresponsible, casual manner and its cumulative effect, did not justify sustenance of the concurrent finding of the learned lower Court. Consequent thereupon, the same are set aside. Petition is allowed. Petitioner is under custody and hence is directed to be released forthwith if not wanted in any other case.
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