Ali Hasan vs State Of Uttarakhand

Ravindra Maithani, J

The present revision is preferred against the followings:-

(i) Judgment and order dated 25.01.2011, passed in Criminal Case No.755 of 2010, State Vs. Ashraf and Others, by the court of Judicial Magistrate, Haridwar (“the case”). By it, the revisionist has been convicted under Sections 498-A, 323 and 506 IPC and sentenced as hereunder:-

(a) Under Section 498-A IPC, simple imprisonment for a period of one year with a fine of Rs. 1,000/-. In default of payment of fine, it has been directed that the revisionist shall undergo imprisonment for a further period of one month.

(b) Under Section 323 IPC, simple imprisonment for a period of one year. And;

(c) Under Section 506 IPC, simple imprisonment for a period of one year.

In fact, two other co-accused, namely, Ashraf and Smt. Amtul, were also convicted and sentenced.

(ii) Judgment and order dated 02.09.2011, passed in Criminal Appeal No.32 of 2011, Ashraf and Others Vs. State of Uttarakhand, by the court of Additional Sessins Judge/III FTC, Haridwar. By it, the judgment and order dated 25.01.2011, passed in the case, has been modified. The co-accused Ashraf and Smt. Amtul were acquitted of the charge under Sections 498-A, 323 and 506 IPC, but the conviction and sentence of the revisionist, Ali Hasan, has been upheld.

In this revision, the revisionist has not been appearing. In fact, on the last two dates, none appeared for the revisionist. Today, none is present on behalf of the State also.

Today, when none was present for the State, the Court requested Mr G.S. Sandhu, the Government Advocate, as to whether, any Government Advocate has been appointed to assist the Court? According to him, he has allotted the cases to the Additional Government Advocates, but, despite it, none is present on behalf of the State.

It is an admitted revision. The law on the revision is well settled that once admitted, it has to be decided on merits irrespective of the presence or absence of the revisionist. A case may not be kept pending at the mercy of the parties to the litigation. The instant revision has to be decided.

The Trial Court Record is available.

Perused the records.

Facts necessary to appreciate the controversy, briefly stated, are as follows: PW2, Smt. Praveen, the victim, and Iqbal were married on 28.02.1985. After marriage, PW2, Smt. Praveen was harassed and tortured by the revisionist and his other family members for additional demand of dowry. PW2, Smt. Praveen, had started staying with her parents. On 19.01.2001, the revisionist along with his other family members visited the house of the father of the PW2, Smt. Praveen, and enquired about her. The revisionist and his other family members were told that PW2, Smt. Praveen, is in her maternal uncle’s house. Thereafter, the revisionist and his other family members visited the house of maternal uncle of PW2, Smt. Praveen. There, they offered to take PW2, Smt. Praveen, with them with the assurance that they would keep her well. PW2, Smt. Praveen, joined them, but, on the way, the revisionist and his other family members, got PW2, Smt. Praveen, down from the vehicle, assaulted, beaten up and left her. PW2, Smt. Praveen, was medically examined on 20.01.2001, by PW4, Dr. Suresh Aggarwal at Primary Health Centre, Jwalapur, District Haridwar. On the next date, FIR was lodged against the revisionist and others for the offences punishable under Sections 498-A, 323 IPC and Section ¾ of the Dowry Prohibition Act, 1961.

The matter was investigated. After investigation, chargesheet under Sections 498-A, 323, 506 IPC was submitted against the revisionist and others. On 18.02.2002, charges under Section 498-A, 323 and 506 IPC were framed against the revisionist and others, to which they denied and claimed trial. During pendency of the trial, co-accused Iqbal, who was the husband of PW2, Smt. Praveen, died. The case abated against him. The trial proceeded against the revisionist and two other co-accused.

In order to prove its case, prosecution examined 6 witnesses, namely, PW1, Mohd. Afzal, the informant, PW2, Smt. Praveen, PW3 Zafir, PW4, Dr. Suresh Aggarwal, PW5, Constable Police Rajpal Singh, PW6 Ram Bahadur Singh, the Investigating Officer.

After prosecution evidence, the revisionist and other co-accused were examined under Section 313 of the Code of Criminal Procedure, 1973. According to the revisionist, he has been falsely implicated.

After hearing the parties, by the impugned judgment and order dated 25.01.2011, the revisionist has been convicted and sentenced as stated hereinbefore. The appeal against it has also been dismissed qua the revisionist. As stated, the appeal, preferred by co-accused, Ashraf and Smt. Amtul, has been allowed and they have been acquitted of the charge. Hence the revision.

The Court is not assisted either by the revisionist or by the State. None is appearing for the State also. The grounds taken in the revision, inter alia, are as follows:-

(i) The impugned judgment and order is illegal, unwarranted and bad in the eyes of law.

(ii) The conviction is based against the weight of evidence on record.

(iii) There is no specific role against the revisionist.

(iv) There have been material contradictions in the statements of the witnesses.

(v) There have been no complaint of any atrocity or harassment done to PW2, Smt. Praveen.

(vi) The date of incident is doubtful.

(vii) The eye witness of the alleged incident has not been examined.

(viii) The prosecution story is not believable.

(ix) The vehicle, on which allegedly PW2, Praveen, was taken from her maternal uncle’s house, has never been traced.

(x) The appellate court found prosecution evidence not trustworthy.

It is a revision. The scope is quite restricted to the extent of examining correctness, legality or propriety of the impugned judgment and order. Appreciation of evidence is generally not done in a revision unless the finding is perverse or admissible evidence is ignored or inadmissible evidence is taken into consideration.

This case have some peculiar features, which may be summarized as follows:-

(i) PW2, Smt. Praveen, was married to Iqbal, who was the son of the revisionist. Iqbal had died. FIR was lodged against Iqbal, Ashraf, Smt. Amtul and the revisionist. Ashraf is elder brother of Iqbal, Smt. Amtul is sister-in-law of Iqbal and Ali Hasan, the revisionist, is the father-in-law of PW2, Praveen.

(ii) Chargesheet was submitted against all the named accused.

(iii) During trial, Iqbal, the husband of PW2, Smt. Praveen, expired. The trial proceeded against the revisionist and the co-accused Ashraf and Smt. Amtul.

(iv) The trial court convicted and sentenced all three, namely, the revisionist, the co-accused Ali Hasan and Ashraf and Smt. Amtul.

(v) In appeal, Ashraf and Smt. Amtul, have been acquitted. The court in appeal made an observation that it is highly improbable that brother-in-law and sister-in-law of PW2, Smt. Praveen, could visit her parents house and, thereafter, would visit her maternal uncle’s house so as to beat her midway.

The acquittal of Ashraf and Smt. Amtul has attained finality. It has not been brought to the notice of the Court that acquittal recorded in favour of Ashraf and Smt. Amtul has been put to challenge.

This Court can not examine legality of the judgment and order dated 02.09.2011, passed in the appeal, by which, the co-accused, Ashraf and Smt. Amtul, have been acquitted now. Based on the evidence, adduced in the case, co-accused, Ashraf and Smt. Amtul, have been acquitted. This Court is called upon to examine as to whether based on the same evidence, the conviction and sentence, recorded against the revisionist, may be upheld, particularly, keeping in view the fact that co-accused, Ashraf and Smt. Amtul, have been acquitted on the basis of same evidence? For this purpose, evidence is required to be perused and examined.

In First Information Report specific role has not been assigned to the revisionist. The allegations are common against the revisionist, the husband of PW2, Smt. Praveen and other persons, who have already been acquitted.

PW1, Mohd. Afzal, is the brother of PW2, Smt. Praveen. According to him, after her marriage, PW2, Smt. Praveen, was harassed for additional demand of dowry. She was beaten up. This witness has stated that they had given Rs. 30,000/- also, but despite that, PW2, Smt. Praveen, was expelled from her matrimonial house and one day, the revisionist along with co-accused took PW2, Smt. Praveen, with them, but, midway, they assaulted and beaten up her, due to which she got injuries. She was medically examined on 20.01.2001, and, thereafter, FIR was lodged. One thing is to be noted in the statement of PW1 Mohd, Afzal, is that he has also not assigned any specific role to the revisionist. The allegations, which he levelled, were joint, common and general against the revisionist and his other family members.

PW2, Smt. Praveen, is the victim. She has also stated that after her marriage with Iqbal, on 28.02.1985, she was tortured, harassed for additional demand of dowry. She tells that how one day the revisionist and others took her along with them and midway got her down from the vehicle and assaulted her. It has to be noted that PW2, Smt. Praveen has also levelled common and general allegations. There is no specific allegation against the revisionist.

PW3, Zafir, has stated about the incident of attack on PW2, Smt. Praveen. According to him, on that date, the revisionist along with Iqbal, Ashraf and Smt. Amtul, was assaulting PW2, Smt. Praveen. PW3, Zafir, has also not assigned any specific role to the revisionist.

PW4, Dr. Suresh Aggarwal, medically examined PW2, Smt. Praveen on 20.01.2001, and found six contusions on her person, which he disclosed in the medical examination report, Ex. A-2.

PW5, Constable Police Raj Pal Singh, has proved the chik FIR and extract of general diary.

PW6, Ram Bahadur Singh, is the Investigation Officer. He has proved the site plan and chargesheet.

It is one of the settled principles of law that if two views are possible, the view, which supports an accused has to be favoured.

A legal proposition would require deliberation at this stage. Based on one and the same FIR and common allegations, two persons, namely, Ashraf and Smt. Amtul, have been acquitted by the court in appeal. The question is as to whether the conviction of the revisionist should still be maintained, based on the same evidence? If it is so done, it would be against law. There is no specific evidence against the revisionist, which is not against the acquitted accused, Ashraf and Smt. Amtul. The evidence has been common, the allegations are common, joint and general. There has been no specific role assigned to the revisionist. There has been no specific role assigned to the acquitted accused, Ashraf and Smt. Amtul, as well. Ashraf and Smt. Amtul have been acquitted in appeal and their acquittal has attained finality. In view, thereof, this Court is of the view that based on the same evidence on which co-accused Ashraf and Smt. Amtul have been acquitted, the revisionist cannot be convicted. The conviction of the revisionist, as upheld in appeal, is not in accordance with law. Therefore, this Court is of the view that the revisionist also deserves to be acquitted of the charge. Accordingly, the revision deserves to be allowed.

The revision is allowed. The revisionist is acquitted of the charge under Sections 498-A, 323 and 506 IPC.

The revisionist is on bail. His bonds are cancelled and sureties are discharged of their liability.

Let the lower court record, along with a copy of this judgment be sent back to the court concerned.