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2002 DIGILAW 165 (RAJ)

Raydhan v. State of Rajasthan

2002-01-18

O.P.BISHNOI

body2002
JUDGMENT 1. - The appellants Raydhan, Alam, Fatoo, Miyajar and Ali Mohammed have been found guilty u/ss. 366, 342 & 143 IPC by the learned Sessions Judge, Jalore vide judgment dated 28.1.1991. 2. The prosecution story, in brief, is that PW-4 Mithu r/o Village 'Galifa', Police Station Chitalwana, District Jalore on 11.6.1988 lodged a written first information report Ex.P/2 at Police Station Chitalwana. 3. According to the FIR the complainant Mithu was married, some five years ago, to PW-3 Smt. Ijjat in village 'Ahsantala' Dist. Barmer. Further, it was stated that the five appellants were bent upon snatching away his wife Smt. Ijjat from him and fearing them he and his wife Smt. Ijjat left the village 'Ahasantala' and returned to village 'Galifa'. After about 10 days, on 9.8.1988, in the absence of the complainant, the five appellants, allegedly, came to village 'Galifa' and represented that the mother of Smt. Ijjat was not well and believing them, Smt. Ijjat was allowed to go with them by the mother of the complainant. In the evening, Mithu returned from another village to his house and learnt from his mother about the taking away his wife by the appellants. He immediately rushed to village 'Ashantala' and made a search but could not locate the appellants. Nor Smt. Ijjat could be located. Consequently, he returned and lodged the FIR Ex.P/2. It was stated in the FIR that the whereabouts of Smt. Ijjat or of all the appellants are not known and the complainant was fearing that his wife would be taken to Pakistan. The SHO made further enquiries from the complainant wherein he told that his wife Smt. Ijjat was aged about 23 years. The SHO registered a case u/ss. 363, 366 & 342/34 IPC and started the investigation. On 13.6.1988, Smt. Ijjat was recovered from the house of her father in village Ashantala and she stated that she was kept in wrongful confinement in her father's house by the appellants. 4. From the investigation, it came out that actually Smt. Ijjat was never married to Mithu and she wanted to marry him against the wishes of her parents. According to the investigation, the father of Smt. Ijjat was of the mind to marry her his own nephew Alam (accused-appellant) and not liking this, a false story of abduction and confinement was cooked up and the FIR was lodged. According to the investigation, the father of Smt. Ijjat was of the mind to marry her his own nephew Alam (accused-appellant) and not liking this, a false story of abduction and confinement was cooked up and the FIR was lodged. Consequently, the police filed a Final Report in the case. The Final Report (FR) was not accepted by the learned Magistrate concerned and on 19.11.1989, cognizance against the appellants u/ss. 147, 342 & 366, IPC was taken and ultimately, they were committed to the Court of Sessions to stand trial for the said offences. They were charged u/ss. 147, 366 & 342, IPC and all the five pleaded not guilty. 5. Six witnesses were examined by the prosecution and DW-1 Alfoo (father of Smt. Ijjat) and DW-2 Gafoor were examined in defence. DW-1 Alfoo stated that Smt. Ijjat was betrothed to the appellant Alam and it was Mithu with whom Smt. Ijjat eloped and in this respect, Alfoo had lodged the first information report Ex.D/2 to the Deputy Superintendent of Police, Bhinmal. According to the witness, Smt. Ijjat was living in her house all along and was recovered from there by the police at the instance of Mithu. The learned trial Court then heard the arguments and found the appellants guilty in the afore-mentioned fashion. For the offence u/s. 366, IPC, two years' R.I. and a fine of Rs. 1,000/- was imposed. For non-payment of fine, it was ordered that the appellants shall undergo S.I. for two months each. For the offence u/s. 342, IPC., a fine of Rs. 500/- and for the offence u/s. 143, IPC, a fine of Rs. 250/- was imposed and for non-payment of fine, S.I. for one month and 15 days respectively was awarded. Against this judgment, the appeal has been filed. 6. I have heard the learned counsel for the appellants and the learned Public Prosecutor for the State and have perused the evidence on record. 7. The story put by the prosecution is to the effect that some five years prior to the alleged incident, the marriage of Smt. Ijjat was solemnized with Mithu whereas the defence version is to the effect that no such marriage between Mithu and Ijjat ever took place. 7. The story put by the prosecution is to the effect that some five years prior to the alleged incident, the marriage of Smt. Ijjat was solemnized with Mithu whereas the defence version is to the effect that no such marriage between Mithu and Ijjat ever took place. According to the defence story, Smt. Ijjat developed some sort of intimacy with Mithu and consequently, she was not prepared to marry the accused Alam with whom she was engaged by her parents. According to the defence story, in order to overcome the difficulty, a complete false FIR Ex.P/2 was lodged by PW-4 Mithu and during the investigation, Mithu was able to get the possession of Smt. Ijjat after she was recovered by the police from her parental house. 8. I find that the prosecution evidence is highly unsatisfactory and the defence version is more acceptable. The testimony of PW-4 Mithu is contrary to the allegation made in the FIR and it stands established that neither Mithu nor Smt. Ijjat are truthful witnesses. 9. PW-4 Mithu has deposed in the Court, that after his marriage with Smt. Ijjat, he lived in village 'Ahsantala, in the house of DW-1 Alfoo as his "Ghar Jawai". There is not a single witness of village 'Ahsantala' to corroborate this allegation. Further PW-4 Mithu has deposed in the Court that after the alleged abduction, he followed the accused-persons to village 'Ahsantala' and found his wife Smt. Ijjat lodged in a hut in the house of his father-in-law DW-1 Alfoo. According to the witness, the five appellants were manning the gate of the hut and were not permitting Smt. Ijjat to leave the hut and when he went there, the appellants Fatoo and All Mohammed attacked him and he had to run away from there, for his life. From this allegation, it is evident that to the knowledge of PW-4 Mithu, Smt. Ijjat was found confined at her maternal house and Mithu was attacked by the said two appellants. This is totally contrary to the allegations made in the FIR Ex.P/2. There is no allegation in the FIR to the effect that Smt. Ijjat was found confined in her father's house. Neither there is a mention to the effect that the appellants were there nor it is alleged that Mithu saw any of the appellants. This is totally contrary to the allegations made in the FIR Ex.P/2. There is no allegation in the FIR to the effect that Smt. Ijjat was found confined in her father's house. Neither there is a mention to the effect that the appellants were there nor it is alleged that Mithu saw any of the appellants. The FIR Ex.P/2 makes a mention that inspite of going to village Ahsantala, the whereabouts of Smt. Ijjat could not be known and she has been put in wrongful confinement at some unknown destination and it was possible that she had been taken to Pakistan. In the light of these allegations made in the FIR, the testimony of the witness in the Court stands completely falsified. No witness has been examined who might have been seen the appellants with Smt. Ijjat going from village 'Galifa' to village 'Ahsantala'. No person from the village 'Ahsantala' has corroborated the story that Smt. Ijjat was ever married to PW-4 Mithu. Nor any witness has stated that she was kept in confinement in her own house. 10. No month, date or year of marriage has been disclosed. No certificate of marriage has been produced, although Mithu and Smt. Iii at has deposed to the effect that the marriage certificate was prepared by the 'Kazi'. According to the FIR the marriage took place five years prior to the incident dated 9.6.1988. However, According to PW-3 Smt. Ijjat, five years' of the marriage were completed some time in February, 1990 because on 22.2.1990, she has stated that her marriage with Mithu was five years' old. In view of the discussion made above and in view of the testimony of PW-4 Mithu and PW-3 Smt. Ijjat, it becomes more than evident that no marriage between the two took place prior to the lodging of the FIR. Father of Smt. Ijjat PW-1 Alfoo has deposed that the FIR was false and Smt. Ijjat was never.married to Mithu. DW-2 Gafoor has stated that he is a cousin of the complainant Mithu and there is no truth in the story of marriage between Mithu and Smt. Ijjat. He has clearly stated that the police recovered Smt. Ijjat from her maternal house and handed-over her to the complainant Mithu. The recovery memo Exh. P/4 dated 13.6.1988 does not say that she was found under wrongful confinement at her father's house. 11. He has clearly stated that the police recovered Smt. Ijjat from her maternal house and handed-over her to the complainant Mithu. The recovery memo Exh. P/4 dated 13.6.1988 does not say that she was found under wrongful confinement at her father's house. 11. The story that the five appellants went to village 'Galfa' and Smt. Ijjat accompanied them on their misrepresentation that her mother was ill, is wholly unnatural and unacceptable. There is an allegation made in the FIR Ex.P/2 to the effect that 4-5 years after the alleged marriage, Smt. Ijjat and Mithu lived in village 'Ahsantala' but they were forced to leave the village because the appellants had an evil eye towards Smt. Ijjat and wanted to snatch her away from her husband Mithu. Had there been any truth in this allegation, it becomes unacceptable and against the normal human conduct that Smt. Ijjat would leave the house of her-in-laws and accompany the appellants believing the story. The result, therefore, is that the finding arrived at by the learned trial Court is unsustainable. 12. Consequently, the appeal is allowed. The appellants are acquitted of the charges. The amount of fine, if deposited by them, shall be refunded to them.Appeal allowed. *******