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Sk. Ayaz And Ors vs State Of Bihar And Anr on 23 September, 2019

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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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
Patna High Court CR. REV. No.761 of 2016
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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/-

AFR/NAFR
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