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Madhya Pradesh High Court · body

2003 DIGILAW 131 (MP)

Hafij Khan v. State of M. P.

2003-01-21

S.K.KULSHRESTHA

body2003
JUDGMENT This revision is directed against the judgment dated 8.11.1995 of the learned Third Additional Sessions Judge Chhindwara (Shri S.D. Mishra), passed in Criminal Appeal No. 76/94, by which the learned Judge has affirmed the judgment dated 23.11.1994 of the learned Additional Chief Judicial Magistrate Saonsar, passed in Criminal Case No. 1505/91, by which each of the applicants has been convicted under section 498A of the Indian Penal Code and sentenced to rigorous imprisonment for one year. The applicant No.1 Hafij Khan is the husband of complainant Noorbi (PW 1) while applicant No.2 Intubi alias Imtyazbi is her mother-in-law and applicant No.3 Habib Khan, her father-in-law. The marriage of the complainant had taken place with the applicant No. 1 about three years prior to the date of incident according to Muslim rites and customs and a son was born through this wedlock. The case of the prosecution, in short, was that after marriage the accused persons started harassing the complainant Noorbi (PW 1) to coerce her to bring dowry and six months prior to the date of her making report, they also took away her son and drove her out of their house. Thereafter, they had also sent a notice requiring her to come back to their house and threatened that on failure, the husband would contract another marriage. On these allegations, the applicants were tried and convicted by the trial Court. Their conviction and sentence was maintained by the lower Appellate Court. Learned counsel for the applicants has submitted that admittedly First Information Report (Ex. P-2) refers to the incident relating to the period six months to three years anterior thereto and that too when the complainant side had taken recourse to legal action against the applicants and the whole story of the complainant was concocted. The complainant Noorbi was examined by the prosecution as PW -1. Noorbi stated before the Court that she was married to Hafij Khan three years prior to the date of her lodging the First Information Report. That after marriage, the accused started asking for money and they used to tell her to bring money from her parents. She also stated that her son was also taken away by them. She has been confronted with various omissions in her First Information Report and her statement under section 161 of CrPC. That after marriage, the accused started asking for money and they used to tell her to bring money from her parents. She also stated that her son was also taken away by them. She has been confronted with various omissions in her First Information Report and her statement under section 161 of CrPC. In the First Information Report lodged by her, she had made a statement only to the effect that she had been asked to bring money and that her son aged six months had been taken away by them and she was living in her parents house. She has not been able to explain the omission of material facts in the First Information Report and her statement to the police. The prosecution has also examined Shekhmatin, her father as PW 2, PW 3 Kunju, her relative, and PW 4 Mohd. Ismail her brother. But, except for a general statement, nothing has been stated to suggest any conduct to the accused that would induce the prosecutrix to cause harm to herself or any harassment of the prosecutrix to coerce her to meet any unlawful demand for any property. Other witness namely PW 5 Sheikh Ramjan and PW 6 Doma have not supported the prosecution. From the evidence of the prosecutrix and her relatives, it is clear that only on account of the family dispute after a long time, the prosecutrix came out with a story of having been" subjected to harassment and cruelty and had it been that the prosecutrix had been driven out, harassed or subjected to cruelty as stated by her, there was no reason that she would not have immediately proceeded to report the matter to the police and taken recourse to legal action against the applicants. The evidence of PW 1 Noorbi and the witnesses PW 2 Sheikh Matin, PW 3 Kunju and PW 4 Mohd. Ismail cannot, therefore, be believed in the absence of corroboration from some independent source. In any case, it would be hazardous to base conviction on their evidence without corroboration thereof from an independent source. The applicants, therefore, deserve the benefit of doubt. In the result, this revision succeeds. The conviction of the applicants is set-aside. The applicants are acquitted of the cases under section 498A of the Indian Penal Code.