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Judgment
Heard learned counsel for the appellant and learned counsel for the State.
This appeal is directed against the judgment of conviction and order of sentence dated 02.06.2006 passed by Sri Binay Kumar Sahay, Addl.
Sessions Judge-I, Rajmahal in Sessions Case No. 106 of 96 and Sessions Trial No. 156 of 2002 whereby and whereunder the appellant has been
convicted for the offence under Sections 323 and 498A of the Indian Penal Code and has been sentenced to undergo R.I. for one year for the offence
under Section 498A of the Indian Penal Code and further has been sentenced to undergo R.I. for six months for the offence under Section 323 of the
Indian Penal Code. Both the sentences shall run concurrently.
A complaint case being has been filed by the victim lady namely Bibi Firoja (P.W.-5),wife of the appellant, on 16.11.1993 under Sections 406, 498A,
307 and 323 of the Indian Penal Code, which has been sent for registration of FIR and finally FIR has been registered under Sections 498A, 307 and
323 of the Indian Penal Code.
Prosecution story as disclosed in the complaint petition is that the complainant namely Bibi Firoja was married to the appellant in the year 1977 as per
Muslim rites and rituals. Their matrimonial relationship was good and after two years they have been blessed with a son, but he could not survive.
Subsequently in the years 1982, they have been again blessed with a son namely Ayub Ansari. Gift has been given during the marriage by the father
of the complainant. Thereafter a maintenance case has been filed, which was compromised. Thereafter, the appellant got job in Madarsa where he
kept a lady. Subsequently he married with Bibi Golesur, daughter of Haji Sultan in the year 1985. Out of this wedlock, a daughter was born.
Subsequently, the appellant married to another lady namely Salma Bibi of Nalhatti (West Bengal). Out of this wedlock, one son and two daughters
were born. Due to multiple marriages, relation amongst his wives were not cordial and as such, the complainant was residing in the house of her
father. Getting the situation worst, she has filed a complaint petition as the accused was also residing in his in-law’s house. There was a demand
of dowry and torture. It is also alleged that on 12.11.1993 at 6.30 P.M., the complainant and her son aged about 11 years have been manhandled and
kerosene oil has been poured upon her. On raising alarm, neighbours and her family members have assembled and saved her. Thereafter the appellant
fled away.
On completion of investigation, charge sheet was submitted against the accused person and cognizance was taken, the case was committed to the
Court of Sessions. Charge was framed under Sections 498A, 307 and 323 of the Indian Penal Code against the appellant, to which he pleaded not
guilty and claimed to be tried.
On conclusion of the prosecution case, statement of the accused person under Section 313 of the Cr. P. C. was recorded, in which his defense was
denial.
Being aggrieved, the present appeal has been filed.
To substantiate the charges, altogether nine witnesses have been examined by the prosecution. P.W. -1, Md. Riyajudin Ansari (Brother of
complainant); P.W. -2, Md. Ayub Ansari (Son of the complainant);P. W. -3, Smt. Saleha Bewa (mother of the complainant); P.W.-4, Md. Shahjehan
Ansari (Uncle of the complainant); P.W. -5, Bibi Firoja (Complainant); P.W. -6, Haji Abdul Rahim (Neighbour); P.W. -7, Haji Abdul Jabbar
(Neighbour); P.W.-8, Kismat Ansari (Neighbour/Uncle); P.W.-9,Md. Ekramul Ansari (Neighbour). Investigating Officer of the case has not been
examined. No injury has been alleged or proved. The marriage has taken place in the year 1977 and complaint has been made in the year 1993. It has
been disclosed in the complaint petition that earlier a maintenance case has been filed by the complainant, but subsequently a compromise has been
taken place between the parties. The reason behind filing the complaint petition is subsequent two marriages by the accused and relation amongst the
wives was not cordial and due to this reason, complainant has to shift to her parental house. The appellant has been discharged from the Section 307
of the Indian Penal Code by the Trial Court. However, he has been convicted under Sections 323 and 498A of the Indian Penal Code on the strength
of testimony of the witnesses, who are neighbours and family members of the complainant.
The matrimonial dispute is common in the villages particularly in the society to which the complainant and the accused belongs. From perusal of the
record, it appears that the appellant has remained in custody from 22.02.1994 to 11.03.1994 i.e. for 20 days. Now both the accused and complainant
have attained the age of more than 60 years.
Learned APP has submitted that there is no time frame requires for filing an application under Section 498 A of the Indian Penal Code. Any illegal
demand resulting in torture attracts the ingredients of Section 498A of the Indian Penal Code. In the present case, the victim lady has been tortured
and this has been witnessed by the neighbours, who have deposed in the Court below as P. Ws. 6, 7, 8 and 9. They are independent witnesses and as
such, the allegation under Section 323 of the Indian Penal Code has been substantially evidenced. There is demand of motorcycle, which has been
evidenced by P.Ws. 1, 2, 3 and 4. Thus, the ingredients of Section 498A and 323 of the Indian Penal Code are made out and has been evidenced.
Therefore conviction of the appellant under Section 498A and 323 of the Indian Penal is wholly justified and requires no interference.
Heard learned counsel for the parties. It appears that marriage has taken place in the year 1977. Subsequently after getting the job in Madarsa in
1982, the appellant has solemnized two marriages and has kept one woman. Due to multiple marriage and dispute amongst the wives, the complainant
has to be shifted her parental house. The complaint has been made after 22 years of marriage. Flow of narrative suggests that it is a matrimonial
dispute, which is prevalent in the society to which the appellant and the complainant are the members. Section 95 read with Section 6 of the Indian
Penal Code is to save the citizen from the criminality, if some harm occurs due to accepted social behaviour. Every dispute between husband and wife
will not come under Section 498A of the Indian Penal Code otherwise society will suffer.
Considering the entire material as discussed hereinabove, this Court finds that prosecution has failed to substantiate the charge under Sections 323
and 498A of the Indian Penal Code. Accordingly the judgment of conviction and order of sentence dated 02.06.2006 passed by Sri Binay Kumar
Sahay, Addl. Sessions Judge-I, Rajmahal in Sessions Case No. 106 of 96 and Sessions Trial No. 156 of 2002 is, hereby, set aside and the appeal
stands allowed.
Since the appellant is already on bail, he is discharged from the liability of his bail bond.