IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.643 of 2017
Aamna Khatoon, W/o Late Md. Chhedi, resident of Village- Wajitpur, P.O.-
Kanbehri, P.S.- Aurangabad (M), District- Aurangabad (Bihar).
…. …. Petitioner/s
Versus
1. The State of Bihar.
2. Md. Khalil, S/o Late Zinnat Ali, resident of Hussain Karma, P.S.- Rafiganj
(Kasma), District- Aurangabad (Bihar).
…. …. Respondent/s
with
Criminal Revision No. 663 of 2017
Wasi Ahmad, Son of Late Md. Chhedi, Resident of Village- Wajitpur, P.O.-
Kanbehri, P.S.- Aurangabad (M), District- Aurangabad (Bihar).
…. …. Petitioner/s
Versus
1. The State of Bihar.
2. Md. Khalil , Son of late Zinnat Ali, Resident of Hussain Karma, P.S.- Rafiganj
(Kasmal), District- Aurangabad (Bihar).
…. …. Respondent/s
Appearance :
(In CR. REV. No.643 of 2017)
For the Petitioner/s : Mr. Krishna Prasad Singh, Sr. Adv.
Mrs. Meena Singh, Advocate.
For the State : Mr. Madan Kumar, A.P.P.
Mr. Nand Kishore Prasad, APP
(In CR. REV. No.663 of 2017)
For the Petitioner/s : Mr. Krishna Prasad Singh, Sr. Adv.
Mrs. Meena Singh, Advocate.
For the State : Mr. Madan Kumar, A.P.P.
Mr. Nand Kishore Prasad, APP
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
Date: 14-12-2017
Heard learned counsel for the petitioners and learned
counsel for the State.
2. Both the revision applications are disposed of by this
common judgment as both the petitioners have been convicted by the
same judgment by the trial court and upheld by the appellate court.
Patna High Court CR. REV. No.643 of 2017 dt.14-12-2017
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3. The petitioners have preferred revision application
being aggrieved by the judgment and order dated 13.04.2017 passed
by the Additional Sessions Judge-I, Aurangabad in Cr. Appeal No. 96
of 2006 whereby he has upheld the judgment of conviction as well as
order of sentence passed by Sub Divisional Judicial Magistrate,
Aurangabad in Trial No. 496 of 2006 against the petitioners
convicting them under Sections 498A of the Indian Penal Code as
well as Section 4 of the Dowry Prohibition Act and directed to
undergo rigorous imprisonment of two years each and a fine of Rs.
2000/- each and in default of making payment of fine, to further
undergo one month rigorous imprisonment. In addition, they were
further directed to undergo three months rigorous imprisonment for
committing offence under Section 4 of the Dowry Prohibition Act and
also to pay a fine of Rs. 1000/- each and in default of payment of fine,
further to undergo 15 days rigorous imprisonment, however, directed
that both sentences shall run concurrently.
4. The prosecution case, in brief, is that O.P. No. 2, Md.
Khalil, lodged Aurangabad Mufassil P.S.Case No. 73 of 1997 dated
13.02.1997 under Sections 498A and 304B of the Indian Penal Code
and Sections 3 and 4 of the Dowry Prohibition Act against his son-in-
law, Md. Washi Ahmad and his parents making allegation that
marriage of his daughter Jahida Khatoon was solemnized six years
back with Md. Washi Ahmad. All accused persons were making
Patna High Court CR. REV. No.643 of 2017 dt.14-12-2017
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further demand of motorcycle right since the marriage but he
expressed inability to fulfill the demand. It is also alleged that all
family members used to taunt her being a barren lady not bearing a
child, as a result of which she always used to come back to her
parent’s home. On 03.02.1997, Taukir Mian, a co-villager, informed
him that his daughter was missing from her matrimonial home since
02.02.1997. He went to her matrimonial home and enquired about his
daughter from Chhedi Mian, who informed that from yesterday she is
traceless. He raised suspicion that her daughter Jahida Khatoon might
have been killed by husband and his family members.
5. The police, after lodging the case, started making
investigation and on conclusion of investigation submitted charge
sheet under Sections 304B and 498A of I.P.C. and Sections 3 and 4 of
the Dowry Prohibition Act. During trial, altogether 08 witnesses were
examined by the prosecution, out of which PW-1 Md. Hakim, PW-2
Md. Usman, PW-3 Nazawat Hussain and PW-4 Gulam Navi have
turned hostile to the prosecution case and PW-6 Md. Sadik is also a
hearsay witness on the point of making demand of dowry and torture
and PW-8, a formal witness, proved the FIR. In this case, the
Investigating Officer has not been examined by the prosecution.
6. Learned counsel for the petitioner submits that both
the courts below committed error in appreciating the evidence on
record as the genesis of the case is apparently false one. F.I.R. was
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instituted under Sections 304B and 498A of I.P.C. raising suspicion
that her daughter was killed by the accused persons even the police
wrongly submitted charge sheet under the said sections though Jahida
Khtoon, examined as PW-7, herself in her testimony in para-14 of the
cross-examination admits that after ousting from the matrimonial
home, she came to her parents home thereafter her father lodged the
case leading to her disclosure about this occurrence; so even after
knowing the fact that her daughter is alive, the false allegation was
levelled that she was killed by accused persons and kept her secretly
in his house and police also submitted charge sheet under Section
304B of I.P.C. whereas evidence shows that she wanted to live with
her husband who was engaged in a private company at Delhi but the
husband was not ready to take her to Delhi because of his meager
earning and to take care for her old parents. She also admits that at the
time of living her matrimonial home, husband Washi Ahmad was not
present in the village rather he was in Delhi. The allegation of demand
of dowry is false as the his father-in-law- informant (PW-5) himself
admits in Para-11 of his cross-examination that demand of motorcycle
was made by Washi Ahmad after four years of marriage, there was
major contradiction in the case of the prosecution evidence as the case
is that just after marriage they started making demand of motorcycle
and in his testimony he said that after four years of marriage, demand
of motorcycle was made. Learned counsel submits that no other
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witnesses have supported the case of the prosecution, except
informant (PW-5), father of the girl and Jahida Khatoon (PW-7)
though their evidence too is not acceptable due to major contradiction
in their evidence on the point of making demand of dowry or torture.
In addition to that, PW-5 went to the extent of making false allegation
of killing PW-7 at the time of institution of case though the informant
was knowing the fact that her daughter is alive. The defence has also
been prejudiced due to non-examination of the investigating officer,
as the defence could not get an opportunity to cross-examine the
witness on the point of recovery of Jahida Khatoon (PW-7) and
attention of contradiction in the evidence of witnesses and how police
submitted charge sheet under Section 304B of I.P.C. when Jahida
Khatoon was alive. It is also the case of the prosecution that she was
examined by a doctor but the said doctor was not examined by the
prosecution. Learned counsel submits that one of petitioners, Amna
Khatoon, is mother-in-law and is a 68-year old lady.
7. Learned counsel for the State submits that there is
evidence of committing torture against the petitioners and in the
statement of the complainant also recorded under Section 164 Cr.P.C.
8. Having considered the rival submissions and on
perusal of record, the Court finds that, except informant (PW-5) and
his daughter (PW-7), PWs-1 to 4 have been declared hostile and PW-
6 has also not supported the case of the prosecution and PW-8 is a
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formal witness and the testimony of two witnesses, PW-5 Md. Khalil
and PW-7 Jahida Khatoon, is full of major contradictions going to the
root of the matter. PW-7, in her testimony, at para 12, admits that she
wanted to live with her husband in Delhi where her husband was
employed though he had promised to take her to Delhi but later on
refused and scolded her for the reason who would take care of his old
parents in the village. In para-13 of her cross-examination, she admits
that from that very day differences started in between them.
Prosecution case is that just after the marriage, approximately in the
year 1991-92, demand of dowry was being made by the husband but
in his deposition at para-11, informant made statement that demand of
motorcycle was made by the husband after four years of the marriage
whereas cause of the matrimonial discord in between Jahida Khatoon
and Washi Ahmad arose due to her husband’s refusal for taking her to
his work place situated in Delhi. In para-14 of cross-examination,
PW-7 admits that she was ousted from the matrimonial home and she
was treated in the hospital by Dr. Vinod thereafter she went to her
parents’ home and informed about the incidence then PW-5 instituted
the case but asked her to remain at home, so this goes to prove that
PW-5 Md. Khalil had intention to lodge false case of dowry death
even after knowing his daughter is alive. Prosecution has failed to
examine the doctor who is said to have treated PW-7, so injury is
proved by the prosecution.
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9. Thus, in the light of the aforesaid discussion, it is held
that demand of motorcycle in dowry after marriage is not proved by
cogent evidence rather the evidence on this point is contradictory as
discussed above, also the fact remains, as admitted by PW-7, that
matrimonial discord is due to refusal of his husband in taking her to
his work place in Delhi. The major contradictions, as discussed above,
go to the root of the matter making the case of the prosecution
doubtful. So the concurrent findings of both the courts below are due
to the misappropriation of the evidence on record. Hence, the
conviction and sentence passed by both the courts against the
petitioners is set aside as they are entitled for giving benefit of doubt.
Since both the petitioners are on bail, they are discharged from the
liabilities of their respective bail bonds. Accordingly, both the
applications stand allowed.
(Arun Kumar, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.12.2017
Transmission 22.12.2017
Date