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IN THE COURT OF 6th ADDITIONAL SESSIONS JUDGE, PURNEA

DIST. - PURNEA, BIHAR
CRIMINAL APPEAL No. 16 of 2018
CIS No. 16/2008

IN THE MATTER OF :-

Md. Jahangir----------------------------------------------------------------------Appellant.

Vs.

1. State of Bihar,
2. Bibi Sabanam Bano,
--------------------------------------------------------Respondents.

Appeal against the Judgment of conviction and order of sentence dated 26.03.2018 passed
by the learned Judicial Magistrate 1st Class, Purnea, Sri Rohit Kumar, in C.A. No.
1251/2003, C.I.S. No. 4737/2013.

DISTRICT - Purnea.

Ld. COUNSEL FOR APPELLANT - Sri Nitin Kumar Singh, Advocate.

Ld. COUNSEL FOR RESPONDENT NO. 1 - Sri Rahul Raja, Additional Public
Prosecutor.
Ld. COUNSEL FOR RESPONDENT NO. 2 - Sri Md Yunus and Sri Md. Andlip
Monu, Advocates.

DATE OF JUDGMENT : 21.05. 2019.

PRESENT : Akhilesh Kumar Singh,

6th Additional Sessions Judge, Purnea.

J U D G E M E N T

1. This Criminal Appeal has been preferred against the Judgment of conviction
and order of sentence dated 26.03.2018 passed by the learned Judicial Magistrate 1st
Class, Purnea, Sri Rohit Kumar, in C.A. No. 1251/2003 whereby and whereunder the
learned Judicial Magistrate 1st Class, Purnea, Sri Rohit Kumar has convicted the
appellant for the offence under section 498-A of the Indian Penal Code (for short “the
I.P.C.”) and sentenced him to undergo three years simple imprisonment and also
imposed fine of Rs.5,000/- and in default of payment of the fine the appellant was
ordered to suffer simple imprisonment for two months.
2. The case of the prosecution, in brief, as disclosed in complaint petition filed by the
complainant Bibi Sabanam Bano (Respondent No. 2) is that she was married with the
appellant on 16.09.1995 according to Muslim rites and ceremony. After marriage, she
went to her Sasural where she found that the appellant was living in a dilapidated
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thatched house, having no proper arrangement of Parda, bathroom etc. The

complainant requested the appellant to make some arrangement for Parda so that she
could maintain Parda at her Sasural. The appellant took ill of the request of the
complainant and reported it to his uncles and mother upon which they started to pass
sarcastic remarks that she having come from a town is so prestigious that in the
village she wants to have accommodation like that of her father’s place at Purnea. In
course of time the accused persons started to put pressure upon her to bring money
from her father’s place to make necessary construction of bathroom etc. and
subsequently they became violent and aggressive in their demand for construction of
bathroom etc. by her father and started to cause mental and physical torture to her by
stopping supply of food to her and by passing sarcastic remark. In the meantime the
appellant went back at the place of his service at Arab after leaving the complainant at
her father’s place. In order to maintain her matrimonial relation with the appellant’s
family she went her Sasural on direction of the appellant and his mother and she
served her mother-in-law. Whenever, her husband come at his native village Barhara
from the place of his working at Arab, she found that his attitude, affection and love
towards her was quite different and when she inquired in this regard from him, he
replied that he was trying to collect fund by marrying second wife on receiving
handsome Dahej and in reality he had married again after receiving handsome Dahej.
On her protest all the accused persons removed the complainant from her matrimonial
home on 2nd day of July, 2001 at 10:00 A.M. and since then she was living at her
father’s house. After inquiry a prima-facie case U/S 498-A of the I.P.C. was found
against the appellant and his mother and they were summoned to face the trail.
3. During trial altogether 4 witnesses, namely, P.W-1 Shabnam Bamo
(complainant), P.W-2 Md. Sanu, P.W.-3 Md. Sabir and P.W.-4 Jawed Anjum were
examined on behalf of prosecution under section 244 of the Cr.P.C. on the basis of
which the charge U/S 498-A of the I.P.C was framed against the appellant and his
mother Bibi Hazara which was read over and explained to them in Hindi to which
they pleaded not guilty and claimed to be tried. The aforesaid prosecution witnesses
were cross-examined after charge. The prosecution has also filed and proved the
certified copy of final order dated 18.11.2014 passed by the Principal Judge, Family
Court, Purnea in Maintenance Case No. 31 of 2009, which has been marked as Ext.-1.
4. The appellant and his mother were examined U/S 313 of the Cr.P.C. in which
they pleaded their innocence. One witness, namely, D.W.-1 Md. Shaukat Ali was
examined on behalf of defence.
5. On the basis of evidences brought on record the learned lower court passed the
impugned Judgment of conviction and passed the impugned order of sentence against
the appellant whereas acquitted his mother Bibi Hazara.
6. The only question to be determined by this court is whether the impugned
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Judgment of conviction and order of sentence passed by the learned court below is
justified or not?

FINDINGS

7. As stated above, complainant has examined altogether 4 witnesses during trial

and the learned court below has discussed the evidences of all the four witnesses in
his Judgment.
8. The learned counsel for the appellant has submitted that the impugned Judgment
and order of conviction passed by the learned court below is bad in law and the
learned court below has passed the judgment and order of sentence in mechanical
way without considering the evidence and material on record. The learned court
below simply on the basis of the evidence of the complainant, who claimed herself
legally weded wife of the appellant, passed the judgment by giving much stress on
Ext.-1, which is order passed U/S 125 Cr.P.C. in favour of the complainant, without
considering her complaint. It is surprising enough that the learned court below on the
same evidence found the appellant’s mother not guilty for the offence U/S 498-A of
the I.P.C. but convicted the appellant. The learned court below failed to take into
consideration that during the year 1997 in a remote place, i.e., village, there was no
scope to construct a latrine and bathroom in a poor family of the society like the
appellant. The learned court below did not consider this fact that the complainant
dissolved her marriage by filing petition for Khula in Amir-e-Sariya Phoolwarisarif.
The learned court below failed to take into consideration that in this case only
strangers have been examined and the father, full brother and sister of the
complainant, who would be best witnesses, have not been examined. The learned
court below gave much stress on the maintenance order but on the basis of this order
it can not be presumed that the divorce was not made where there is documentary
proof of divorce. The prosecution has failed to prove the charge against the appellant,
so the Judgment and order of conviction is fit to be set aside.
9. The learned A.P.P. as well as the learned counsel for the respondent no. 2
(complainant) have submitted that the impugned Judgment of conviction and order of
sentence passed by the learned court below is just and proper and the learned court
below after perusing and discussing the entire evidences available of record has
rightly held guilty to the appellant for the offence U/S 498A of the I.P.C. and
convicted the appellant for the same. They also submitted that almost all the
witnesses including the complainant herself have fully supported this fact that on
failure of the complainant to bring money from her father’s place to make necessary
construction of bathroom etc., she was tortured mentally and physically by the
appellant and the appellant has solemnized second marriage. There is no reason to
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disbelieve their evidence. Hence, this appeal is fit to be dismissed.

10. Perused the impugned Judgment and order of conviction passed by the learned
court below as well as evidences available on the lower court record. In this case,
marriage of the complainant with the appellant is admitted. From perusal of evidence
of P.W.1, who is the complainant and the victim herself, it appears that in her
examination-in-chief she has fully supported this fact that the appellant tortured her
mentally for fulfillment of demand for construction of house by her father and when
he returned from Arab he did not come to her father’s house for bringing her and
subsequently he solemnized second marriage. P.W.2, who is neighbour of the
complainant, P.W.3, who is Sadhu of complainant’s father, and P.W.4, who is cousin
brother of the complainant, have fully corroborated the evidence of P.W.1 regarding
torturing of the complainant mentally by the appellant for fulfillment of demand for
construction of house. P.W.2 and P.W.3 have also corroborated this fact that the
appellant solemnized second marriage.  Evidence   of   prosecution   witnesses   on   the
point of mental torture of the complainant by the appellant for fulfillment of demand
for construction of house and on the point of solemnization of second marriage by the
appellant is consistent with the prosecution story and there is no any material
contradiction in their evidence. It also appears that except some minor contradiction
between the evidences of prosecution witnesses, there is nothing on record to
disbelieve the testimony of the prosecution witnesses. It is a settled principle of law
that not only physical, but mental cruelty is suffice for conviction under Section 498-
A of the I.P.C. It is apparent from the evidence on record that the complainant was
subjected to mental cruelty by the appellant, she was compelled by the appellant to
reside at her father’s house, she was deprived from enjoying her matrimonial relation
with the appellant and the appellant, by neglecting her, solemnized second marriage.
These facts are sufficient for conviction under Section 498-A of the Indian Penal
Code. It also appears that the appellant has taken this plea in his defence that the
complainant herself had taken Khulla (divorce) from him but he failed to prove the
same. D.W.1, who is a Imam, has only interpreted the concept of Khulla in Shariat
Law. From perusal of Ext.-1 it transpires that the aforesaid plea of Khulla was also
taken by the appellant before the Court of Principal Judge, Purnea in the maintenance
case filed by the complainant against the appellant U/S 125 of the Code of Criminal
Procedure, but the appellant failed to prove the aforesaid plea of Khulla. Thus, Ext.-1
also corroborates this fact that the existence of the marriage between the complainant
and the appellant is still subsisting. The witnesses examined on behalf of the
prosecution have proved the time, place and manner of occurrence as well as motive
behind the occurrence and their evidence is sufficient for holding the appellant guilty
for the offence U/S 498-A of the I.P.C.
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11. Thus, considering the aforesaid facts as discussed above, this court come to the
conclusion that the learned court below has rightly passed the impugned Judgment
and rightly held the appellant guilty for the offence under sections U/S 498A of the
I.P.C. Therefore, the impugned Judgment of conviction passed by the learned court
below is justified which does not require any interference.
12. On the other hand, the learned court below has imposed the sentence of three
years simple imprisonment and fine of Rs. 5,000/- to the appellant. The imprisonment
for three years is maximum punishment for the offence U/S 498A of the I.P.C. From
perusal of record it transpires that the appellant has faced trial for a very long period.
It is also apparent from the evidence on record that appellant has solemnized second
marriage and there are some children of the appellant from his second wife. Thus, the
second wife and children from her are also behind the appellant. Presently, the
appellant is aged about 47 years. Considering the aforesaid facts and circumstances as
well as the entire facts and circumstances of the case this court is of opinion that the
simple imprisonment for one year six months and fine of Rs. 5,000/- would be
sufficient to meet the ends of justice. Hence, the sentence of imprisonment passed by
the learned court below is modified from three years to one year six months.
13. Accordingly, this appeal is dismissed with the aforesaid modification in
the order of sentence.
(Dictated & Corrected by me)
(Akhilesh Kumar Singh)

(Akhilesh Kumar Singh) 6th Addl. Sessions Judge,Purnea

th
6 Addl. Sessions Judge,Purnea 21.05.2019.
21.05.2019.