Wasi Ahmad vs State Of Bihar & Anr on 14 December, 2017

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
Patna High Court CR. REV. No.643 of 2017 dt.14-12-2017

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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

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