IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.837 of 2010
AFGAN KHAN S/O SUBEJAN KHAN R/O VILL- RUPIN, P.S.
FATEHPUR, DISTT. GAYA.
--- PETITIONER
Versus
THE STATE OF BIHAR
--- OPP. PARTY.
For the Petitioner : Mr. N.K.Agrawal, Sr. Advocate.
For the Opp.Party : Mr. Niraj Kumar, Advocate.
For the State : Mr. Jharkhandi Upadhyaya, APP
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04. 01.07.2010 Heard learned counsel for the petitioner, informant and
State.
Rule confined to question of sentence only.
Learned A.P.P. waives notice on behalf of the State of
Bihar.
With the consent of the parties, the present revision
application is being disposed of at this stage itself.
Petitioner herein is the husband. He has been charged
for having committed an offence punishable under Section 498A
and 379 of the Penal Code. Let it be recorded that the father,
mother and two sisters of the petitioner were also charged under
the same Sections.
According to the prosecution case lodged by the
victim Nazmun Praveen, she was married with the petitioner 10
years ago as per Muslim rites and rituals. Several gifts were given
to her at the time of marriage. At the „Sasural‟ she was tortured for
non-fulfillment of certain demands. An attempt was subsequently
made to do away with her life. Father of the
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complainant/informant ultimately retrieved her from „Sasural‟.
Her jewellery and other belongings were illegally retained by the
accused persons. At the trial prosecution seems to have examined
as many as 07 witnesses. On appraisal of their testimony, the
learned trial Court found and held that the charge(s) under Section
379 of the Penal Code have not been proved against the petitioner
and other accused persons standing the trial. They were, however,
found guilty under Section 498A of the Penal Code, and
accordingly sentenced to undergo R.I. for 03 years. This is what
the learned trial Court has held:-
“…thus in final prosecution successfully
passed the charge of 498A IPC against Afgan Khan,
Subejaan Khan, Khairoon Nisha, Genis Khatton and
Sairun Nishan beyond all reasonable doubts.
Accordingly they are held guilty for the charge of
498A IPC and so convicted thereunder…”
Aggrieved by the aforesaid judgment and order of conviction
recorded by the learned trial Court, the petitioner herein and other
co-convicts filed appeal being Criminal Appeal no. 63 of 2002,
which was considered and disposed of by the learned Additional
District and Sessions Judge-I, Nawadah by order dated
25.11.2009. On a reappraisal of the evidence adduced on behalf of
the prosecution it was found that so far as the other members of the
husband (in-law‟s of the complainant) are concerned, the material
on record were general and vague not inspiring confidence. So far
as the petitioner is concerned, it was found that physical cruelty
and harassment to the complainant/informant at the hands of the
petitioner for non-fulfillment of certain demands has been proved
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to the hilt. Accordingly, while acquitting other convicts, the
conviction and sentence recorded against the petitioner was
maintained.
Learned counsel for the petitioner submits that the occurrence
in the present case had taken place sometimes in the year 1997.
The trial of the petitioner consumed more than five years.
Admittedly the allegation pertains to demand of certain amounts
for running business. It is next contended that trial Court as well as
the learned lower appellate Court has not considered the provision
contained under Section 360 and 361 of the Code of Criminal
Procedure (for short „The Code‟).
Learned counsel appearing on behalf of the informant and
State, however, supported the impugned judgments. It is submitted
that there is concurrent finding(s) of guilt recorded against the
petitioner. The appellate Court, on a reappraisal of the evidence on
record, found that the evidence of the prosecution witnesses were
trustworthy. Accordingly conviction of the petitioner has been
maintained. In view of the concurrent finding recorded by the two
courts below, this Court should refrain from interfering with the
findings so recorded by them. It is next contended that cruelty and
torture, at the hands of the husband, has become rampant. In that
view of the matter, petitioner is not entitled to consideration under
Sections 360 and 361 of the Code of Criminal Procedure.
Having considered the submissions made at the Bar and after
going through the entire material reflected from the two impugned
judgments, this Court is of the view that in the particular facts of
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the case a lenient view, in so far as the imposition of sentence is
concerned, shall sub serve the cause of justice. Admittedly
petitioner laboured under the threat of being punished for over five
years. This is a relevant consideration to be kept in mind while
imposing sentence for the guilt proved against the petitioner.
In the circumstances, this Court is satisfied that a sentence of
02 years R.I. under Section 498A of the Penal Code shall sub serve
the cause of justice. Accordingly, the sentence awarded under
Section 498A of the Penal Code is reduced to 02 years R.I.
With this modification in sentence(s), the application
is dismissed.
Sym ( Kishore K. Mandal, J.)