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Md. Nur Alam & Ors vs State Of Bihar & Anr on 26 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.645 of 2017
Arising Out of PS. Case No.-80 Year-2010 Thana- SITAMARHI COMPLAINT CASE
District- Sitamarhi

1. Md. Nur Alam, S/o Md. Yunus.

2. Md. Mustaffa, S/o Md. Yunus.

3. Md Murtuja, S/o Md. Yunus. All are Resident of Village Bashant
Kurd Maniya, P.S. Majorganj, District- Sitamarhi.

… … Petitioners
Versus

1. The State of Bihar.

2. Sohana Khatoon, Wife of Md. Nur Alam, D/o Md. Alauddin, at present
residing at Village Bhairo Kothi (Lichi Bagan) P.S. Sitamarhi, District
Sitamarhi.

… … Respondents

Appearance :

For the Petitioner/s : Mr. Uday Kumar
For the Respondent/s : Mr. Md. Anzarul Haque Sahara

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
CAV JUDGMENT
Date : 26-04-2018

The petitioners have preferred this revision application

against the judgment and order dated 04.12.2015, passed by

learned Sessions Judge, Sitamarhi in Criminal Appeal No.82 of

2015 thereby dismissing the appeal filed by them by affirming the

judgment of conviction and order of sentence dated 28.07.2015,

passed by learned SDJM, Sadar, Sitamarhi in Trial No.827 of

2015, arising out of Complaint Case No.C1-80/2010 whereby the

trial court has convicted the petitioners under Section 498(A) of

the Indian Penal Code and awarded sentence of 1½ years simple

imprisonment and also directed to pay fine of Rs.1000/- each and
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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in case of non-payment to further undergo simple imprisonment of

three months.

2. The brief fact giving rise to the complaint case is that

on 10.01.2008, marriage of Sohana Khatoon was solemnized with

Md. Nur Alam, the petitioner no.1, but the bridegroom asked for

Hero Honda motorcycle in dowry before performance of Nikah but

any how on persuasion of some well wishers Nikah was performed

and thereafter she came to her in laws house. The complainant was

being tortured at the place of her in laws for fulfilling the demand

of motorcycle. The accused persons used to keep her hungry not

providing food and always used to abuse her. On 22.01.2010,

mother, sister and other members of the complainant’s family

came and persuaded not to torture the complainant but in their

presence she was assaulted and keeping all her articles kicked her

out of the matrimonial home. All accused persons were put on trial

after framing of charge and on its conclusion have been convicted

by the trial court as aforesaid.

3. Altogether six witnesses have been examined by the

prosecution, namely, Munni Khatoon (PW1), mother of the

complainant, Hasmeena Khatoon (PW2), sister of the complainant,

Md. Mahamdeen has been examined twice as PW3 and PW5,

grandfather of the complainant, Sohana Khatoon (PW4), the
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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complainant, and Md. Alladdin (PW6), father of the complainant,

and one defence witness examined by the accused persons is

Sheikh Ayub (DW1).

4. The learned counsel appearing on behalf of the

petitioners submitted that petitioner no.1 is the husband of the

complainant and petitioner nos.2 and 3 are elder brothers, who live

separately and have no concern with the matrimonial and

household affair of petitioner no.1 and the complainant. Further it

was contended that there is no evidence that the complainant was

driven out of the matrimonial home. However, the fact remains

that she herself left the house of the petitioners and started living

with her parents. It is also submitted that all prosecution witnesses

are family members of the complainant, so they are interested

witnesses and contradiction is also found in their depositions.

Learned counsel for the petitioners also submitted that the

complainant Sohana Khatoon (PW4) also did not turn up for cross

examination, so her evidence is to be expunged and cannot be

considered as no opportunity of her cross examination was given

to the accused persons.

5. Learned counsel appearing on behalf of the State and

the complainant submitted that the torture and harassment of the

complainant by the accused persons for realizing demand of a
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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motorcycle have been proved beyond all reasonable doubt, so

there is no illegality in the trial court judgment as well as in the

appellate court’s finding and attention of no specific major

contradiction has been drawn by the learned counsel for the

petitioners. It is also submitted that the evidence of the

complainant Sohana Khatoon (PW4) cannot be expunged because

she did not turn up and refers Section 246 (4) Cr.P.C. that after

framing of the charge if the accused pleads not guilty then the

accused persons are required to furnish the list of prosecution

witnesses to Magistrate to whom they wish to cross examine but in

the present case no such option was exercised by the accused

persons and in support of such contention placed reliance in a case

reported in CRA-D-340-2002 [2006] RD- P H 83 (10 January

2006) (Naresh Kumar Sethi v. Bal Krishan Ors.

6. Having considered the rival submissions and on

perusal of evidence on record, the Court has to analyze the

evidence to come to conclusion whether ingredients of the offence

under Section 498A of the Indian Penal Code in present case has

been proved beyond all reasonable doubt. The only constituent of

offence under Section 498A of the Indian Penal Code is cruelty

which means willful conduct and the word ‘Willful’ contemplates

obstinate and deliberate behaviour on part of offender amounting
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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to cruelty, so mens rea is an essential ingredient of the offence.

The evidence on record in the present case lacks any evidence

regarding any obstinate and deliberate behaviour on part of the

accused persons amounting to cruelty. The allegation in the

complaint is that she was denied food and kept hungry in the

matrimonial home; whereas in the deposition there is no such

evidence in the testimony of the complaiannt (PW4). There is also

evidence on record that the husband does not live in the village

home where complainant used to live as he was living in Delhi and

engaged in doing as a labourer in manufacturing bags. This fact is

deposed by PW4, the complainant and no specific instance of

committing cruelty is found in her deposition except that her

husband was making demand of motorcycle and as demand was

not fulfilled, she was driven out of the matrimonial home. There is

also vital contradiction on this point that she was driven out in

presence of her mother (PW1) and sister (PW2) who are witness

nos.3 and 4 of the complaint petition but the mother (PW1) has

deposed that she had never been to the matrimonial home of the

complainant situated at Basantpur. This admission of PW1

demolishes the case of the prosecution that the complainant was

ousted from the matrimonial home in her presence and demand of

motorcycle was made. Moroever, the principle is that standard of
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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proof of cruelty is higher in degree in criminal law than in civil

law under the matrimonial causes. The intention or mens rea on

the part of one spouse to injure the other is not a necessary element

of cruelty in civil law in matrimonial cases while it is an essential

element in criminal law. In civil cases relating to matrimonial

matters cruelty is proved by preponderance of probabilities while

in criminal trials the conduct of cruelty against accused persons is

to be proved beyond all reasonable doubt. In the present case, the

conduct of the accused/petitioners relating to committing cruelty

by willful conduct showing any deliberate behaviour on the part of

them constituting cruelty is not proved beyond all reasonable

doubt. The Court further finds major contradictions in the evidence

of the prosecution witness. Munni Khatoon (PW1), mother of the

complainant Sohana Khatoon (PW4) has stated in her deposition

that she never went to matrimonial home of her daughter Sohana

Khatoon (PW4) as this fact is admitted in paragraph-2 of the cross

examination stating therein that she never got any opportunity to

go to village Basantpur. She also stated in her testimony that only

after three days of the marriage, her daughter, the complainant

returned back to her parents home after Vidai thereafter no one

turned up to take her back. There is no cogent evidence on record

that thereafter how long she remained at her parents home and
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further no date or period is disclosed when she again went to her

matrimonial home and how long she further stayed there andin

what manner she was tortured and harassed by the accused

persons. The specific case in the complaint is that PW1, mother of

the complainant had gone to her daughter’s matrimonial home on

23.01.2010 along with her another daughter, Hasmeena Khatoon

(PW2) to persuade accused persons not to torture her daughter but

in their presence accused persons assaulted and abused the

complainant and also abused them thereafter kicked her daughter

out of the matrimonial home but in testimony her mother (PW1)

admits that she never got any opportunity to go to complainant’s

matrimonial home which demolishes the case of the prosecution

that complainant (PW4) was ousted from matrimonial home in

their presence. The case of the complainant is that Panchayati was

also held but PW1 also admits in paragraph-6 that never any

Panchayati was held with respect to demand of motorcycle;

whereas according to the complainant’s case, the Panchayati was

held with the accused persons. Such vital contradiction completely

demolishes the allegation of demand of motorcycle and torture.

Hasmeena Khatoon (PW2), sister of the complainant has deposed

that she along with her mother had gone for Panchayati but they

were driven out whereas her mother (PW1) says that she never got
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any opportunity to go to the matrimonial home of the complainant.

Sohana Khatoon (PW4), the complainant in her deposition stated

that she was driven out of the matrimonial home and they asked

her to come back along with motorcycle. The prosecution case, as

stated in the complaint petition, is that on 23.01.2010, she was

driven out of the matrimonial home in presence of her mother

(PW1) and sister (PW2) but such evidence is lacking in testimony

of her mother (PW-1) as not stated that they were present on that

very day in complainant’s matrimonial home and in their presence

demand of motorcycle was made and complainant was driven out

of the matrimonial home. Even testimony of complainant (PW4)

lacks evidence on this point. She has further deposed expressing

her grievance that her husband does not give money for meeting

her expenditure. The grandfather of the complainant (PW5), Md.

Mahamdeen’s testimony is also not trustworthy, according to him

neither demand of motorcycle was made in his presence nor such

demand was made directly from him; according to him Panchayati

was also held but no one participated as a Panch from his side and

also failed to disclose the names of any Panch, who participated

therein. Such statement of the witness creates doubts regarding

demand of motorcycle and subsequently holding of Panchayati for

persuading the accused persons for keeping the complainant and
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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forgo the demand of a motorcycle. Md. Alladdin (PW6), father of

the complainant has deposed that when his wife and elder daughter

had gone to the complainant’s matrimonial home then in their

presence the complainant was assaulted by the accused persons

and also driven out from the matrimonial home. This fact is not

supported by his wife (PW1). Moreover sister of this witness is

also next door neighbour of the complainant’s husband but she

also never made any complaint to him that his daughter was being

tortured by the accused persons. Further he has deposed that never

any Panchayati was held with accused persons in context of

torture being meted out to her daughter for demand of motorcycle.

He also admits that in his presence, her daughter was never

assaulted or tortured, so having considered the major and vital

contradictions in the deposition of the complainant’s witnesses

particularly with respect to demand of motorcycle and committing

torture in that connection the charge under Section 498A of I.P.C.

is not proved by the prosecution beyond all reasonable doubt. The

trial court as well as the appellate court have not appreciated the

evidence in proper perspective rather over looked major

contradictions going to the root of the matter, therefore, the order

dated 04.12.2015, passed by the learned Sessions Judge, Sitamarhi

in Criminal Appeal No.82 of 2015 as well as the judgment of
Patna High Court CR. REV. No.645 of 2017 dt.26-04-2018
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conviction and order of sentence dated 28.07.2015, passed by

learned SDJM, Sadar, Sitamarhi in Trial No.827 of 2015, arising

out of Complaint Case No.C1-80/2010 is hereby set aside and all

the accused persons including these petitioners are acquitted from

the charge under Section 498(A) of the Indian Penal Code. Since

all three petitioners are on bail, therefore, they are also discharged

from liabilities of their respective bail bonds.

7. The criminal revision application stands allowed.

(Arun Kumar, J)
S.KUMAR/-

AFR/NAFR AFR
CAV DATE 13.12.2017
Uploading Date 27.04.2018
Transmission Date 27.04.2018

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