MD.ARIF Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS Criminal Revision Application is directed against the order impugned dated 2.5.2009 passed by the Additional Sessions Judge, F.T.C. -VI, Jamshedpur in S.T. No. 89 of 2009 by which the petition filed under Section 227 of the Code of Criminal Procedure on behalf of the petitioners was rejected.

(2.) THE prosecution story in short was that the informant -opposite party NO.2 Musarat Parveen presented a written report before the Mango Police Station stating inter alia that she was married to the petitioner No.1 Md. Arif on 28.4.2002 according to Muslim customs and after marriage, she went to her matrimonial home where she stayed for a few months. She further stated that on the eve of marriage her parents and brothers had spent a huge amount in cash and kind but it was alleged that she was badly treated by her husband, father -in -law Md. Nizamuddin, mother -in -law Sajada Khatoon and two unmarried sisters -in -law who used to abuse and assault her alleging that she had brought insufficient articles. She admitted having gone to Saudi Arabia with her husband for a few months but when she returned the accused persons again started extending torture in various ways to her. Pursuant to an order passed by the Principal Judge, Family Court, Jamshedpur on 29.7.2008 she was staying at her matrimonial home but on 28.8.2008, at about 8 p.m. all the accused persons including her husband brutally assaulted her by fists and slaps and also dragged her by holding her hair by putting demand of an Indica Car to be brought from her parental home, otherwise she was threatened to be killed. She any how escaped and informed her brothers on telephone who came there and rescued her. She presented a written report at the police station alleging what has been reproduced hereinbefore for taking legal action against the accused.

(3.) ADVANCING his arguments Mr. Rajesh Kumar, learned counsel appearing for the petitioners submitted that it was the admitted fact that the informant -O.P. NO.2 was staying at her matrimonial home from 29.7.2008 to 20.8.2008 as per direction made by the Principal Judge, Family Court, Jamshedpur, total for a period of 23 days, whereas the medical report indicated that the foetus found in the uterus of the informant was seven weeks and five days therefore, the fact that she suffered abortion by sustaining injuries could be falsified. Even in the F.I.R. she was silent that she was bearing pregnancy at the relevant time of assault. The learned counsel further pointed out that the prosecutrix narrated that she was admitted, at the M.G.M. Hospital on 21.8.2008 where she was diagnosed under C.T. Scan and the child in her womb was found healthy. Therefore, her pregnancy was found stable till 22.8.2008. The learned counsel pointed out that thereafter she admitted herself at the Lifeline Nursing Home on 23.8.2008 where according to her version she was advised for dilation and eviction with her own consent, whereas her husband was under arrest at the relevant time and his consent was not obtained for such voluntary abortion. Therefore, no offence under Section 313 of the Indian Penal Code would be attracted against any of the petitioners as it was not a case of miscarriage rather a case of voluntary abortion without any cause and consent of the husband. The injury report issued by the MGM Hospital and produced on the record before the CJM did not indicate any grievous injury on her as defined under Section 320 of the Indian Penal Code but even then Section 325 of IPC was added without there being fulfillment of requirement for constituting such offence. The learned counsel asserted found healthy on physical examination at the MGM Hospital then what occasioned, the informant for voluntary abortion of the child in a different private hospital, without permission of her husband, is a mystery which could not be unfurled. Finally Mr. Rajesh Kumar, learned counsel submitted that on the same and similar allegation that an Indica Car was demanded from the informant to be brought from her parental home, a separate case was instituted against the accused persons giving rise to Mango P.S. Case No. 242 of 2004 for the alleged charge under Sections 498/307/34 of the Indian Penal Code and also under Sections 3 and 4 of the Dowry Prohibition Act pending trial in the Court of 5th Additional Sessions Judge, Jamshedpur in which all the accused persons were convicted in S.T. No. 329 of 2005 and subsequently again for the same cause of action with the similar allegation in respect of demand of an Indica Car made, the common accused persons cannot be subjected to further prosecution causing thereby double jeopardize, thus it was a fit case for their discharge.