IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.761 of 2016
Arising Out of PS. Case No.-1797 Year-2008 Thana- EAST CHAMPARAN COMPLAINT
District- East Champaran
1. Sk. Ayaz and S/o SK. Abdul Hai,
2. SK. Abdul Hai, s/o Late SK. Abdul Rafi.
3. Bibi Mustkima Khatoon W/o SK. Abdul Hai, All r/o Vill. Sekhi Chakia, P.S-
Chakia, Dist- East Champaran.
… … Petitioner/s
Versus
1. State Of Bihar
2. Sabnam Praveen, daughter of Maqbul Ahmad, resident of Pedari Rampur
Korar, P.S.- Kesariya, District- East Champaran.
… … Respondent/s
Appearance :
For the Petitioner/s : Mr.Krishna Kant Singh
For the Respondent/s : Mr.Sri S. Ehteshamuddin
For O.P. No. 2 : Mr. Anisur Rahman
Mr. Akram Naiyar
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.AV. JUDGMENT
Date : -09-2019
1. This revision application has been preferred aainst the
judgment dated 06.08.2015 passed in Criminal Appeal No.
59/82 of 2014/2015 by learned 12th Additional Sessions Judge,
Motihari, whereby and whereunder, the judgment and order of
sentence dated 27.05.2014 passed in Tr. No. 4678/14 arising out
of Complaint Case No. 1797/08 by the learned Judicial
Magistrate -1st Class , by which, the petitioner were convicted
for the offence under Section 498A of the Indian Penal Code
and were sentenced to undergo rigorous imprisonment of 3
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years alongwith fine of Rs. 2,000/- and in in default of payment
of fine to undergo simple imprisonment of one month has been
upheld with some modification in order of sentence with respect
to appellant nos. 2 and 3.
2. Facts giving rise to the present revision application in
short is that the marriage of complainant Shabnam Praween was
solemnized with the petitioner no. 1 on 04.05.2006 according to
Muslim rights and customs and after her marriage, she went to
her in-laws house at Shekhi Chakia. On 13.05.2006, father of
complainant gave the jewellery as demanded by her in laws.
Thereafter, accused persons along with complainant went to
Kolkata, where the accused persons started beating and torturing
her and demanded Rs. Five Lakhs from her father. On
19.09.2007, the complainant was beaten black and blue by the
accused persons and she was confined in a room and her
neighbour informed her father about the incident, thereafter, her
father along with other relatives reached there and with the help
of local police, she was rescued and was admitted to the
hospital, where she got medically treated. Thereafter, on
10.08.2008, complainant came with her father at her father’s
house. It is also the case of complainant that on 05.08.2008,
accused persons came to her father’s house for “Rukshadi” and
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the complainant was allowed to go along with petitioner no. 1
but she was left at Muzaffarpur Railway Station, thereafter, the
complainant returned to her father’s house along with her son.
3. After enquiry under Section 202 of the Code of Criminal
Procedure, processes were issued against the petitioners and on
their appearance, trial commenced.
4. During trial, four witnesses were examined on behalf of
the complainant. They are: PW1 – Maqbool Ahmad, father of
complainant, PW2 – Abdul Mannan Saifi, PW3 – Sk. Tuzar
Rahman and PW4- Shabnam Praween the complainant herself.
Apart from that signature of complainant on complaint was
proved as Ext. 1.
5. On behalf of the defene also, three witnesses were
examined. They are; DW1 – Tanvir Alam, DW2 – Ram
Shrestha Thakur and DW3 – Md. Taiyab. Apart from that
following documents have also been brought on record by the
defence side i.e. (i) Ext. ‘A’ – Certified copy of statement of Md.
Firdous in Misc. Case No. 12/12 (ii) Ext. ‘B’ – Certified copy of
deposition of witness Abdul Mannan Saifi in M-244/08 and (iii)
Ext. ‘C’ – Photocopy of certified copy of Title Suit No. 23/08
(with objection).
6. Defence of the accused persons/ petitioners is of
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innocence and false implication.
7. Learned Magistrate, after conclusion of trial, convicted
the petitioners under Section 498A of the Indian Penal Code and
sentenced them in the manner aforesaid.
8. Being aggrieved, the petitioners preferred Criminal
Appeal No. 59/82 of 2014/2015 before the Sessions Judge,
Motihari, which ultimately travelled to the file of 12th Additional
Sessions Judge, East Champaran, Motihari, who after hearing
the parties, passed the judgment on 06.08.2018, affirming the
judgment of conviction under Section 498A of the Indian Penal
Code against the petitioners and also affirmed the sentence of
rigorous imprisonment of 03 years and fine of Rs. 2,000/-, so far
petitioner no. 1, is concerned. However, he has directed for
release of petitioner nos. 2 and 3 on probation on execution of
bonds under Section 4 of Probation of Offenders Act, 1958 for a
period of two years to keep peace and be of good behaviour and
dismissed the Criminal Appeal filed by the petitioners.
9. Aggrieved, the petitioners have preferred the present
revision application. The grounds for assailing the judgment of
Trial Court as well as appellate court is that both the courts
below have failed to appreciate that the prosecution has failed to
prove the prosecution case in the manner brought in complaint
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petition as the station diary entry at Kolkata or the medical
report were not brought on record rather another story was
brought on record that she was asked to work in porn film and
collect money so that the accused persons might purchase a new
flat at Kolkata but there is no such story in the complaint
petition and as such, the above story is an afterthought and the
same cannot be accepted as for the first time it has come during
during trial and that too there is no corroboration to eabove
evidence. Further, the learned Trial Court has also come to a
finding that the defence evidence as well as the documents
produced by the defence has created a reasonable doubt about
the commission of offence, which will appear from para 12 of
the judgment, however, in spite of that learned Trial Court has
convicted the petitioners. Learned counsel for the petitioners
have also cited decision of Division Bench of this Court passed
in the case of SectionJagdev Yadav Ors. vs. the State of Bihar,
reported in 2007(2) PLJR 666 and the decisions of Hon’ble
Apex Court reported in 2017 (1) PLJR SC 129 and in the case
of Umakant and Anr. 2014(3) PLJR (SC) 483, in order to show
that in a criminal case, the burden to prove the offence is always
upon the prosecution party.
10. Further submission is that the appellate court has only
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considered and appreciated the evidence adduced on behalf of
complainant and, thereafter, has come to a conclusion that the
judgment of conviction passed by learned Judicial Magistrate is
correct and passed on the basis of materials available on record.
There is no consideration of evidence adduced on behalf of
defence and on that score also, the judgment of Appellate Court
is bad and not sustainable in the eye of law.
11. On the other hand, learned counsel appearing on behalf of
opposite party no. 2 has supported the judgment passed by the
learned Trial Court as well as by the Appellate Court and
submitted that the materials available on record, clearly
disclosed that a demand of Rs. 5 lacs was made by the
petitioners and on non fulfilment of the said demand, the
complainant was subjected to cruelty and torture and when he
returned to her father’s house, the petitioners came for Roksadi
but again left her at Muzaffarpur Railway Station and fled away.
as such, the conviction of the petitioners under Section 498(A)
of the Indian Penal Code, is just and proper. It has also been
contended that there is concurrent finding of fact by the learned
Trial Court as well as by the learned Appellate Court and this
Court cannot go for reappreciation of evidence. In support of his
contention, learned counsel for opposite party no. 2 has referred
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a decision of Hon’ble Apex Court reported in AIR 1975 (SC)
1960 in the case of SectionDuli Chand vs Delhi Administration as
well as on the decision reported in 1993(1) Cr. Law Journal.
1029 (SectionSC) State of Karnataka vs. Balu Ingale and Others.
12. Having heard both sides, from perusal of the records, as
discussed above, it appears that the complainant has come with
a case that she was tortured and assaulted by the petitioners at
Kolkata and was confined in a room, which was informed to her
father PW1, who came there along with relatives and rescued
her with the help of local police and also lodged a Sanha as well
as got her treated there and thereafter, she came with her father
to her father’s house. PW4 (complainant) has also stated so in
her evidence. However, evidence PW1, (father of complainant)
does not disclose the above prosecution story. It further appears
that neither any document showing local station diary entry
made in the local police at Kolkata as it is the prosecution story
that local police was informed nor the medical prescription of
complainant (PW4) has been brought on record in support of her
contention of treatment nor any witness of Kolkata was
examined. So far other witnesses i.e. PW2 and PW3 are
concerned, they appear to be hearsay witness. The defence has
also adduced some oral as well as documentary evidence on
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record. Learned Trial Court while appreciating the evidence has
come to a finding that ” from perusal of the deposition of the
defence witnesses and exhibits of defence, it creates reasonable
doubt about commission of offence but try to explain the same,
stating that doubt would be called reasonable if they are free
from a zest for abstract speculation and must be actual and
substantial doubt. Learned Trial Court held that on perusal of
the case record, it is evident that the complainant has come out
successful in proving its case in the manners as alleged by it and
involvement of the accused person in the alleged occurrence to
hold him guilty beyond all shadows of reasonable doubts under
Section 498A of the Indian Penal Code”.
13. However, it appears that the learned Trial Court has not
considered that no local witness of Kolkata have been examined
nor any station diary entry has been brought on record and even
no prescription of dotor has been brought on record, though it is
the case of prosecution that she has received treatment at the
local hospital at Kolkata. So far her evidence that she was
forced to work in a porn film is concerned, the same is beyond
her case in the complaint petition but there appears no
discussion by the trial court on those points. It is settled law that
burden of proof is on prosecution to prove its case in the manenr
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of occurrence as per prosecution case.
14. So far the Appellate Court judgment is concerned, it is
well settled law that Appellate Court being the first Appellate
Court not only has to confirm or set aside the judgment on the
basis of finding arrived at by the Trial Court but also has to re-
appreciate the evidence available on record in order to come to
the conclusion as to whether finding arrived at by the Trial
Court is correct or not. Provision of appeal has been provided by
the law maker so that a person may get a chance to prove his
innocence. However, what transpired from the judgment of
Appellate Court that it has simply narrated the evidence of
witnesses of prosecution and defence and after discussing the
argument of the appellants as well as State come to a finding in
para -16, which reads as follows:-
“16 From perusal of the evidence examined
on behalf of the prosecution and also on
behalf of the defence as discussed above, it
is, however, proved by the witnesses that the
complainant’s marriage was solemnized
with Sk. Ayaz on 04.05.2006 in accordance
with Muslim law. After marriage accused
persons started beating and torturing the
complainant and they started demanding Rs.
5 lacs from her fahter and also started
harassing the complainant with a view to
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coercing her father for giving 5 lacs. The
complainant was beaten black and blue by
the accused persons. The neighbour has
informed about the same to her father and on
information her father and relative reached at
Kolkata and with the help of local police
complainant was freed and admitted to the
hospital. On 10.08.2008 complainant came
with her father at her father’s home and on
25.08.2008 accused persons came for
Rukhsadi at her father’s home but hey left
her at Muzaffarpur Railway Station and
complainant returned back to her father’s
home. The learned Judicial Magistrate after
discussing the evidence of complainant has
found the appellants/accused guilty for the
offence u/s 498A SectionI.P.C. I am of the opinion
that the judgment of conviction passed by
the learned Judicial Magistrate is correct and
passed on the evidence and material
available on record. Therefore, the judgment
of conviction of learned Judicial Magistrate
is confirmed”.
15. From perusal of the finding arrived at by the learned
Appellate Court, it clearly appears that there is no discussion on
the evidence adduced on behalf of defence especially the
documents produced by the defence and the learned Appellate
Court has also not considered that no document has been
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brought on record to show that Kolkata police was informed,
even no medical report showing injuries on the person of the
complainant was produced in support of manner of occurrence
that the complainant was beaten at Kolkata and with the help of
local police, she was rescued by her father and then was
admitted to hospital for her treatment and as noticed above,
defence evidence has not been discussed and even no witness of
Kolkata has been examined, which clearly implies that the
Appellate Court has not applied his independent mind and has
recorded such finding in a very casual manner, confirming the
judgment of conviction passed by the learned Trial Court
without properly appreciating the evidence adduced on behalf of
both the parties available on record as well as the above
discrepancies in the complaint petition. No doubt, there are
other evidence available on record in support of the
complainant’s case and they ought to have been discussed in
order to confirm the conviction of petitioners or set aside the
same. However, at the same time, this court refrain itself from
making any comment as to whether the discrepancies discussed
above are sufficient enough to belie the prosecution story or the
evidence available on record are sufficient to convict the
petitioners. Rather it is the duty of the the learned Appellate
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Court to consider the evidence of both the parties, scrutinize the
same, consider the discrepancies / inconsistencies as pointed out
by the petitioner in his judgment. This court also, at the same
time, is aware of the settled law that Revisional Court ought not
enter into re-appreciation of fact, where there is concurrent
finding of fact, unless it is perverse and against the materials
available on the record.
16. In view of the discussions made above, the judgment of
the Appellate Court cannot sustain, as such, the same is set
aside. The matter is remitted back to the learned Appellate
Court to dispose of the appeal after providing opportunity to
both the parties and also after analyzing the evidence available
on record, dispose of the appeal by fresh judgment.
17. Accordingly, with the above observation and direction,
this revision application is allowed to the above extent.
18. Let L.C.R. of both Trial Court and Appellate Court be
sent back to the Appellate Court at once.
(Vinod Kumar Sinha, J)
sunilkumar/-
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