Juber vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellant has filed this appeal u/s 374 of the Criminal Procedure Code against judgment dated 18.02.1998 passed in Sessions Trial No. 73/1995 by the learned Additional Sessions Judge, Manawar, District Dhar (MP), convicting appellant for offence punishable u/s 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years with fine of Rs.500/-. Appellant has also been convicted for offence punishable u/s 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one and half year and fine of Rs.500/-has also been imposed upon him, with default stipulation. Brief facts of the case are that complainant Tabasum Bano was married to appellant. After four months of her marriage, she was living with her husband. It is alleged that appellant and his family members used to harass complainant Tabasum Bano by beating her and making comments regarding dowry, stating that if she did not bring ornaments and money, therefore, they will not keep her and perform second marriage of appellant. On 03.08.1994, appellant abused her and on instigation of his family members for killing complainant Tabasum Bano, appellant poured kerosene over her and put her on fire. It is alleged that all the family members of the appellant have beaten her. On report of complainant, after investigation, Police has filed a challan against appellant and after trial of appellant and six other accused, who were family member of appellant for the offence punishable under Sections 307/34 and 498A IPC, learned trial Court convicted appellant as mentioned in paragraph No. 1 of this judgment, whereas other accused persons have been acquitted.

Being aggrieved by the impugned judgment, appellant has filed this appeal on the ground that learned trial Court is not justified in believing the evidence lead by the prosecution against him, while other accused have been acquitted considering the same set of evidence.

Main question for consideration in this appeal is whether learned trial Court is justified in convicting appellant by the impugned judgment. So far as attempt to murder of complainant is concerned, no grievous injury has been found on her body. Only superficial injury has been found on left arm from elbow to shoulder, which was neither dangerous to life nor grievous in nature.

Learned counsel for the appellant has drawn attention towards the fact that appellant has been falsely implicated as he has divorced his wife, which has been admitted by Akbar Khan (PW-6), father of the complainant, who in his cross-examination admitted that he felt insulted by divorce of his daughter by the appellant. If the appellant did not divorce his daughter, he would not have reported the matter to the Police. He further admitted that he has given advice to his daughter about what to report. Talaknama (divorce) Ex.D/1 has been admitted by complainant Tabasum (PW-8) in her cross-examination and it is further admitted that Ex.D-1 was prepared in the presence of her mother and father. Ex.D/1 has been prepared on 04.08.1994 while date of incident, according to first information report Ex.P/6, is 03.08.1994. If the complainant has sustained burn injury, she has neither reported the matter on the same day to the Police nor her parents and there is no evidence that she has been divorced after she has been beaten and put to fire by the appellant. Report has been lodged one day after the divorce. Therefore, considering the admission of father of the complainant that report has been lodged on his advice, as he was annoyed with the appellant on account of divorce of his daughter, false implication of the appellant cannot be denied.

It is surprising that on the same set of evidence only appellant has been convicted and other accused have been acquitted by disbelieving evidence against them. If the evidence of the prosecution has been disbelieved for some of the accused, regarding omnibus allegation of demand of dowry, learned trial Court erred in convicting the appellant on the basis of unreliable evidence of complainant and her father. Therefore, learned trial Court is not justified in convicting appellant by the impugned judgment. Therefore, appeal is allowed, setting aside the impugned judgment. Appellant is acquitted of the charge for the offence punishable u/s 498A and 307 IPC. Fine amount, if deposited in the trial Court, be returned to him. Bail bonds of the appellant are discharged.