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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.17/2006
1. Jahirkhan alias Sanju s/o Sujatkhan
Pathan, aged 40 yers, Occ. Lecturer.
2. Smt. Munifa w/o Sujatkhan Pathan,
aged 63 years, Occ. Nil,
Both r/o Chandrapur, Tq. Dist.
Chandrapur. .....APPLICANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, P.S. Ramnagar,
Chandrapur. ...NON APPLICANT
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Mr. A.V.Guta, Senior Advocate with Mr. K.Patel, Advocate for
applicant no.1.
Mr. M. J. Khan, A.P.P. for non applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 07.08.2017
J U D G M E N T
1. The present applicants were convicted by the learned Chief Judicial Magistrate, Chandrapur on 11.01.2002 in Regular Criminal Case No.124/1999 for an offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. For the said offence, applicant-Jahirkhan was directed to suffer simple imprisonment for six months and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for one month.
Though applicant no.2-Munifa was convicted, she being an old lady, instead of sentencing at once, the learned Chief ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 ::: 2 revn17.06.odt Judicial Magistrate released her on bond of good behaviour of Rs.5,000/- for a period of six months under the provisions of Section 4 of the Probation of Offenders Act.
The applicant no.1 was also convicted for the offence punishable under Section 494 of the IPC and for the said offence, he was directed to suffer simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default to suffer rigorous imprisonment for one month.
Against the said conviction, an appeal was carried before the learned Sessions Judge, Chandrapur. The appeal was registered as Criminal Appeal No.4/2002. The learned 4 th Ad hoc Additional Sessions Judge, Chandrapur vide judgment dated 09.01.2006 partly allowed the said appeal and thereby maintained the conviction and order of sentence for the offence punishable under Section 498-A read with Section 34 of the IPC. However, the applicant was acquitted of the offence punishable under Section 494 of the IPC. Hence, this revision.
2. I have heard Mr. Avinash Gupta, learned Senior Advocate with Mr. Kartik Patel, Advocate for applicant and Mr. M.J. Khan, A.P.P. for the non applicant-State. ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 :::
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3. Though formal order of abatement is not passed in this revision, the applicant no.2-Munifa has expired on 21.08.2008. The death certificate is filed on record.
4. Kaisar Anjum (PW1) is the wife of applicant no.1 and she is the first informant. She lodged her report Exh.-18 with Police Station Officer, Gondia. As per the report, the marriage between her and applicant no.1 was solemnized on 22.05.1997 at Gondia as per Muslim rites. According to the FIR, prior to her marriage, applicant no.1 was already married and since the demand for dowry was not fulfilled, he gave divorce to his first wife and she is not aware about what happened to his first wife. The FIR further states that applicant no.1 and his mother used to demand gold chain, motorcycle and plot and also that the articles which she has received from her parents are of inferior quality. It is also stated in the FIR that since they noticed that their demand for dowry is not going to be fulfilled, they forcefully sent her to her parental house in November-1997. It is also stated in the FIR that thereafter the applicant no.1 performed another marriage on 07.06.1998.
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5. To prove its case, the prosecution has examined in all five witnesses. Complainant-Kaisar Anjum is PW1, her brothers Nisar Ahmed Khan is PW2 and Iqbal Ahmed Khan is PW3. Baburao Zade, the investigating officer is PW4 and Sharda Ramteke, the landlord in whose house during the relevant time the complainant used to reside is PW5.
6. Normally, the revisional Court should not appreciate the evidence. However, if it is pointed out to the revisional court that appreciation at the hands of the courts below is such that it has resulted into the perverse finding then in my view the Court should not abdicate its duty even to look into the evidence brought on record.
As per the evidence of Kaisar Anjum (PW1), after solemnization of the marriage at the time of leaving the Barat, both the applicants insisted that they will not take the presents and articles which were given in the marriage. In fact, as per the evidence of Kaisar Anjum (PW1), they were insisting her parents to give gold chain, motorcycle and plot. Thus at the time of leaving the marriage hall, as per the evidence of Kaisar Anjum, a demand was made by the complainant to her parents. To ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 ::: 5 revn17.06.odt corroborate this version, it was expected from the prosecution to examine her parents in respect of the said demand. However, for the reason best known to the prosecution, the parents to whom the demand was made are not examined.
7. The evidence of complainant-Kaisar Anjum shows that after the marriage they went to Amravati and in fact the family members of the applicant arranged the reception at Amravati. As per the prosecution, she was to be taken at Chandrapur instead the Barat was taken to Amravati. This, in my view, is hardly relevant to prove the charge under Section 498-A of the IPC especially when even according to the complainant, her brothers, the family members of applicant arranged reception at Amravati.
8. According to the further evidence, during their stay at Amravati, the applicants were saying that enough articles are not given to them by the parents of complainant. Also, articles which are given are of inferior quality, is the evidence of Kaisar (PW1).
From the aforesaid evidence, it is clear that there was no demand to her by the applicants that she should obtain more articles. Further on this Kaisar Anjum, the complainant did not ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 ::: 6 revn17.06.odt find corroboration from her brother Nisar Ahmed (PW2) whereas the evidence of Iqubal Ahmed (PW3) the other brother shows that the demand was from the applicant no.2 and not from the applicant no.1.
It is further version of Kaisar Anjum (PW1) that when the applicant had been to Gondia for taking her to her matrimonial house that time, applicant no.1 insisted her parents that the plot should be purchased for him. As observed above, the parents were not examined. Further, her brothers Nisar Ahmed Khan (PW2) and Iqbal Ahmed Khan (PW3) are not supporting at all to this version of the complainant.
9. It is further version of the complainant from the witness box that the elder brother of the accused brought all marriage articles at Chandrapur. It is further version of the complainant that both the applicants were not talking with her. They were not providing the foods and were causing trouble to her. However, it is found to be an improvement which is duly proved by the investigating officer Baburao Zade (PW4).
The further evidence of the complainant shows that one month thereafter applicant no.1, his brother and his wife came to ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 ::: 7 revn17.06.odt Gondia and that time they persisted demanding the articles with the complainant. However, Nisar Ahmed Khan (PW2) and Iqbal Ahmed Khan (PW3) are stating that the applicant no.1 did not come but applicant no.2 his mother came at Gondia along with applicant no.1's elder brother and his wife. Thus, on the presence of the applicant no.1 itself there is variance in between the prosecution witnesses.
The other evidence of the complainant in respect of "Aise kahi jalte hai aur kahi marte hai" is found to be an improvement duly proved by the investigating officer.
In examination-in-chief itself the complainant deposed that in fact her brother took her to Gondia. It is contrary to the assertions which she had made in Exh.-50 FIR that she is driven out of the house.
Sharda Ramteke (PW5) in whose house the applicant was a tenant and he used to reside along with the complainant states that during the stay, she found that they were living properly.
10. With such type of evidence available on record, in my view, the Court below has committed serious mistake at law in ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 ::: 8 revn17.06.odt convicting the applicant for the offence punishable under Section 498-A of the IPC. Hence, following order is passed.
ORDER
(i) Criminal Revision No. 17/2006 is allowed.
(ii) Judgment and order dated 09.01.2006 in Criminal Appeal No.4/2002 passed by 4th Ad hoc Additional Sessions Judge, Chandrapur thereby convicting the applicant-Jahirkhan @ Sanju s/o Sujatkhan Pathan for the offence punishable under Section 498-A read with Section 34 of the IPC is quashed and set aside.
(iii) The applicant is acquitted of the offence punishable under Section 498-A of the IPC.
(iv) Bail bonds of the applicant stands cancelled.
JUDGE kahale ::: Uploaded on - 09/08/2017 ::: Downloaded on - 10/08/2017 02:21:45 :::