HAJRABAI MAMAD v. HASAM UMAR S

CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 15/04/2008 ORAL JUDGMENT :

#1. The petitioner original complainant has preferred this criminal revision application under Section 397 read with Section 401 of the CR.RA/373/2001 JUDGMENT Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr. P.C.') and challenged the judgment and order of acquittal passed by the learned J.M.F.C., Mandvi on 28-6-2001 in Criminal Case No. 1207 of 1997 whereby the respondents No.1 to 3 were acquitted for the offences punishable u/s 498(A) and 114 of the I.P. Code.

#2. The petitioner was married to the respondent No. 1 on 27-7-1993 according to the Muslims rights. The respondent No. 2 is her mother-in-law and respondent No.3 is her sister-in-law (Jethani i.e. wife of elder-brother of husband). According to the prosecution case, the petitioner was kept well for about 5 ½ months after the marriage. But thereafter the respondents No. 2 and 3 started passing taunting remarks that she was not doing house-hold work properly and were instigating respondent No.1 who used to inflict physical cruelty. Lastly on 29-1-1994 the petitioner was driven out of the house after inflicting physical cruelty and thereafter she came to her parental house and the respondent No.1 went abroad. The petitioner made application for settlement in Permanent Lokadat but the dispute could not be resolved and therefore the complaint was filed against the respondents No.1 to 3.

#3. On the basis of the complaint filed by the CR.RA/373/2001 JUDGMENT petitioner before Mandvi Police Station, offence was registered as I – CR No. 111 of 1997 and investigation was started. On completion of investigation charge sheet was laid before the learned J.M.F.C., Mandvi. The case was registered as Criminal Case No.1207 of 1997. Learned Magistrate framed charge at Exh. 10 against the accused respondents No. 1 to 3 for the aforesaid offences who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence to prove the charge. On completion of recording of evidence, further statements of the accused – respondents No.1 to 3 were recorded u/s 313 of the Cr. P.C. After hearing learned A.P.P. and learned advocates for the accused-respondents No.1 to 3, the learned Magistrate came to the conclusion that the prosecution has failed to prove the charge and therefore acquitted the accused – respondents No. 1 to 3. Being aggrieved by the said decision, the petitioner has preferred this criminal revision application.

#4. I have heard learned advocate Mr. C.H. Vora for the petitioner, learned advocate Mr. N.V. Anjaria for the respondents No. 1 to 3 and learned A.P.P. Mr. K.C. Shah for the respondent No.4 – State at length and in great detail.

#5. It is submitted by learned advocate Mr. Vora that the learned Magistrate committed error in CR.RA/373/2001 JUDGMENT not accepting the evidence of the two witnesses only because they were relatives of the complainant. He also submitted that in matrimonial offence generally family members are the only witnesses who could depose about matrimonial cruelty. Therefore, the learned Magistrate committed serious error in not believing the evidence of two witnesses which is resulted into grave injustice to the petitioner. Therefore, the impugned judgment and order of acquittal is required to be quashed and set aside. In support of his arguments, he has relied upon the decision of Salim Sahab V. State of M.P., reported in (2007) 1 SCC 699.

#6. Learned advocate Mr. Anjaria submitted that except the evidence of the interested witnesses, there is no evidence to connect the respondents with the offence. Therefore, the learned Magistrate was justified in not accepting the evidence and no interference is warranted in the findings recorded by the trial Court.

#7. Learned A.P.P. Mr. Shah for the respondent No.4 – State supported the judgment and order of acquittal and submitted that the learned Magistrate has rightly not believed the evidence of the prosecution witnesses and therefore no interference is warranted in the impugned CR.RA/373/2001 JUDGMENT judgment.

#8. The prosecution examined the complainant P.W. 1 Hajarabai Mamad at Exh. 31, her mother P.W. 3 Rukiyabai Mamad at Exh. 33 and independent witness Adam Sidddik Them at Exh. 35 and Mamad Umar Sap at Exh. 37.

#9. The prosecution produced complaint at Exh. 32. It appears from the complaint Exh. 32 that there are allegations of passing taunting remarks with regard to house hold work. The complaint was filed on 15-9-1997 for the alleged incident that took place within 5 ½ months after the marriage. According to the complainant, the complainant was driven out after inflicting physical cruelty on 29-1-1994. There is no evidence to indicate that physical cruelty was inflicted upon the complainant. Even the accusations with regard to passing taunting remarks are also vague and general. It is true that in matrimonial offence the evidence of family members would be the best evidence but it is also settled principle that in fixing criminal liability the Court has to be cautious while analysing the evidence of the family members. In the instant case, alleged matrimonial cruelty was inflicted upon the complainant within 5 ½ months of the marriage. CR.RA/373/2001 JUDGMENT The complaint indicates that the marriage was performed on 27-7-1993. The complaint is filed after about 4 years of the incident. There is no evidence to indicate that the petitioner made any complaint to any one with regard to alleged physical cruelty. There is no explanation with regard to delay caused in filing of the complaint. The depositions of the witnesses with regard to physical cruelty are also vague and general and no specific instances are given by them. Therefore, it would not be safe to rely upon evidence of the prosecution witnesses to implicate the respondents No.1 to 3 in the offence. Therefore, the learned Magistrate was justified in not accepting the testimony of the family members of the complainant.

#10. It also appears from the complaint that the petitioner tried to resolve the dispute through 'Jamat'. The prosecution examined the President of Jamat but he has turned hostile and not supported the prosecution case. Therefore, except the depositions of two witnesses, there is no independent evidence to connect the respondents No.1 to 3 with the aforesaid offence. Therefore, the learned Magistrate was justified in not relying upon their evidence.

#11. Learned advocate Mr. Vora for the petitioner CR.RA/373/2001 JUDGMENT has relied on the decision of Salim Sahab V. State of M.P., reported in (2007) 1 SCC 699. In the said decision, the evidence of the witnesses was relied upon though they were close relatives of the victim. In the facts of this case, this decision cannot be made applicable.

#12. In view of above, the learned advocate for the petitioner has failed to point out that the learned Magistrate has committed jurisdictional error in passing the impugned judgment. Therefore, no interference is warranted in the impugned judgment.

#13. In the result, this criminal revision application fails and stands dismissed. Rule stands discharged. (Bankim N. Mehta, J.) /JVSatwara/