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Rajasthan High Court · body

2008 DIGILAW 988 (RAJ)

State of Rajasthan v. Maqbool Ahemad

2008-04-08

MAHESH CHANDRA SHARMA

body2008
Honble SHARMA, J.–Both the matters (criminal appeal filed by the State as well as criminal revision filed by the complainant) arise out of the same FIR and same incident, hence, they are decided by this common Judgment. (2). The State of Rajasthan has preferred this appeal against the judgment of acquittal dated 27.11.1991 passed by learned Munsif & Judicial Magistrate-Ist Class, Tonk (Rajasthan), in criminal case No. 460/1987 whereby he acquitted the accused respondents for the offence u/S. 406/34 IPC. (3). The complainant preferred the instant criminal revision petition under Section 397 read with Section 401 Cr.P.C. for convicting the accused respondents as also for remanding the case for passing fresh orders. (4). (3). The complainant preferred the instant criminal revision petition under Section 397 read with Section 401 Cr.P.C. for convicting the accused respondents as also for remanding the case for passing fresh orders. (4). Brief facts of the case are as under:- ^^ifjoknh us fnukad 11-8-1987 dks] ifjokni=] fo:) vfHk;qDrx.k vUrxZr /kkjk 406/120 ch] 420] 467] 468] 34@109 Hkk-n-la-] bu rF;ksa ds lkFk is-k fd;k gS fd mlus vius NksVs HkkbZ vehu eksgEen ds lEcU/k ds flyflys esa vius llqjky lkbZM ds fudV fj-rsnkj jetkuh eqyfte ua- 1 dks 12-8-82 dks viuh iRuh ds lkFk ,d i= Hkstdj ;g dgyok;k fd vehu eksgEen dk lEcU/k rqEgkjh lkyh fulkj ckuksa ls djk nksA jetkuh mldh iRuh o HkkbZ vehu dks eqyfte ua- 1 ds ikl vyksan ys x;k] tgka eqyfte uEcj 2 us viuh yM+dh fulkj ckuksa ls lxkbZ iDdh dj nh o nLrwj dj fn;kA -kknh dh rkjh[k r; djus dss fy, ekpZ 84 esa eqyfte Vksad ifjoknh ds ?kj vk;s vkSj -kknh ds fy;s nks -krZ j[kh] ,d rks ;g fd 4000@& :i;s vekurk eqLrxhl mUgsa nsosa ftlls os IykV [kjhnsa vkSj nwljh ;g fd eqLrxhl dk ifjoknh yM+dh ds fy, -kknh ds oDr Ms< rksyk lksus dh tathj o vk/kk rksyk ds ,sju vkSj vk/kk fdyks pkanh ds tsoj p<kosxk bu -krksZ dks eqLrxhl us eatwj dj fy;k vkSj 4000@& :i;s udn ^eqyfte jetkuh dks eqyfte edcwy dh ekStwn esa vekurk fn;sA ml oDr vkte vyh] vykfn;k] jkeiky ukbZ] dkyw igyoku ekStwn FksA eqtfyeku us dgk fd jde ls IykV [kjhnsaxs vkSj ugha rks okil ns nsaxs eqyftek us mlds HkkbZ ls nks lkns dkxtksa ij uxj ikfydk esa nj[kkLr nsus dk cgkuk dj] gLrk{kj djk fy;sA ;g dgdj eqyfteku x;s fd rkjh[k Hkst nsaxsA fnukad 7-4-84 dks mlds HkkbZ vehu dk fudkg fulkj ckuksa ds lkFk gks x;k vkSj krZ vuqlkj tsojkr eqLrxhl us cjoDr fudkg ns fn;sA 8-4-84 dks cjkr ds lkFk fulkj ckuksa Vksad vk xbZ] blds ckn jetkuh nqYgku dks ysus 9-4-84 dks Vksad vk;k] vkSj 10-4-84 dks nqYgu dks e; tsojkr ds ysdj pyk x;kA mlds ckn ifjoknh o mlds ifjokj okys dbZ ckj fulkj ckuksa dks ysus x;s ysfdu eqtfye edcwy us mldks ugha HkstkA IykV [kjhnus ds ckjs esa ifjoknh us dbZ ckj dgk] ysfdu ugha [kjhnkA iRuh fo;ksx esa mlds HkkbZ dh rfc;r [kjkc gks x;h mlds ckn i= jftLVMZ IykV [kjhnus ds fy, mlus Hkstk] ftl ij eqyfteku us IykV ugha [kjhnk] mudh uh;r IykV [kjhnus dh o vekurk ykSVkus dh ugha gSA eqyfteku us "kM;a= jpdj eqLrxhl o mlds ifjokj okyksa ls :i;s ,saBus dh xjt ls lkftk jph vkSj /kks[kk fn;kA eqyfteku us mUgsa uqdlku igqapkus rFkk vius Dyse dh rkbZn djus dh xtZ ls mlds HkkbZ ds nLr[krh dkxtksa esa ,d dkxt ij ÖkwaBk o QthZ nLrkost ckcr kjh;r fudkg rS;kj dj fy;k gS vkSj ,d QthZ rykdukek Hkh rS;kj djok fy;k gS] tks nksuksa QthZ gSA vr% eqyfteku dks muds d`R; dh l[r ltk nh tkosaA** (5). On the basis of this complaint sent under Section 156(3) Cr.P.C., police registered case No. 201/87 for the offence u/Ss. 406, 120B, 420, 467, 468, 34, 109 IPC and investigation commenced. (6). After investigation the police submitted challan against the accused respondents for the offence u/S. 406/34 IPC. (7). The charges were framed against the accused respondents for the aforesaid offence, who pleaded not guilty and claimed trial. (8). During trial the prosecution in support of its case produced as many as 10 witnesses and certain documents were got exhibited. In defence the accused respondents produced one witness. (9). Thereafter the statement of the accused-respondents under Section 313 Cr.P.C. was recorded. (10). After conclusion of the trial, the learned trial Court vide its judgment dated 27.11.1991 acquitted the accused-respondents by holding that in Muslim Law the marriage is treated as contract and in violation of the aforesaid conditions, in stead of criminal prosecution, issue of civil nature is created. (11). Aggrieved with the judgment dated 27.11.1991 of acquittal passed by learned trial Court, the State Rajasthan has preferred the instant appeal. (12). In this appeal it has been submitted by the learned Public Prosecutor that the learned trial Court has not considered the statements of the prosecution witnesses properly. He has further contended that the learned trial Court has wrongly acquitted the accused respondents from the aforesaid offences. Thus, the impugned judgment of acquittal dated 27.11.1991 is erroneous one and should be quashed and set aside. (13). On the other hand, the learned counsel for the accused- respondents have submitted that the impugned judgment passed by the learned trial Court is based on the correct appreciation of evidence and after giving cogent reasons, the learned trial Court has acquitted the accused respondent. The learned trial Court has acquitted the accused respondents by holding that in Muslim Law the marriage is treated as contract and in violation of the aforesaid conditions, in stead of criminal prosecution, issue of civil nature is created. The complaint has not been submitted by the complainant within the limitation. The complainant stated to be given Rs. 4,000/- and jewellery in the Month of March 1984 to the accused appellant and the complaint has been submitted on 11.8.87 and time has been fixed for taking cognizance for the offence u/S. 468 Cr.P.C. The complainant in consequent to accused respondents have not produced any evidence. The complainant stated to be given Rs. 4,000/- and jewellery in the Month of March 1984 to the accused appellant and the complaint has been submitted on 11.8.87 and time has been fixed for taking cognizance for the offence u/S. 468 Cr.P.C. The complainant in consequent to accused respondents have not produced any evidence. The jeweleries which were given to the daughter of the accused respondents, were without any dispute and it is her `stri-dhan and she is having absolute right on it. On the above basis, no offence is made out against the accused respondents. The complainant has failed to produce his evidence namely Mohd. Amin. Thus, the impugned judgment passed by the learned trial Court need no interference of this Court. (14). I have heard learned Public Prosecutor as well as the learned counsel for the accused-respondent and also gone through the record of the case. (15). Having gone through the impugned judgment 27.11.1991 passed by the learned trial Court, I find that the learned trial Court has given cogent reasons for not finding the case of the prosecution proved against accused respondents. (16). The court attention was drawn on the following judgment of the Honble Supreme Court:- Umrao vs. State of Harayana & Ors. SC 2006 Vol. 10 Page 136 in which the Lordships of the Supreme Court has observed in para 26 that "it is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below." (17). Looking to the evidence just discussed above, it can easily be said that the prosecution has not been able to prove its case against the accused respondents for the offence for which they have been convicted and the learned trial Court was right in acquitting the accused respondents. I have no reason to dissent from the finding of acquittal recorded by the learned trial Court as the same appears to be reasonable and plausible in the facts and circumstances of the case. (18). I have no reason to dissent from the finding of acquittal recorded by the learned trial Court as the same appears to be reasonable and plausible in the facts and circumstances of the case. (18). It may be stated that in appeal against acquittal though powers of the High Court to reassess the evidence and to reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weightage and consideration to the views of the trial judge as to the credibility of the witnesses; the presumption of innocence in favour of the accused, right of the accused to the benefit of any doubt and thus, High Court should not ordinarily disturb the order of acquittal. Therefore, this court does not want to interfere with the impugned judgment passed by the learned trial Court and this appeal is liable to be dismissed. (19). Accordingly, the appeal filed by the State of Rajasthan and the criminal revision filed by the complainant fail and the same are hereby dismissed, after confirming the judgment of acquittal dated 27.11.1991 passed by learned Munsif & Judicial Magistrate, Ist Class, Tonk in criminal case No. 460/1987.