BASHIR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision by the accused Bashir is directed against his conviction under Section 497 IPC and sentence of six months' simple imprisonment and a fine of Rs. 200/ - and in default of payment of fine to further undergo simple imprisonment for two months.

(2.) PROSECUTION story in brief is that Mst. Hamida was a legally married wife of Mohammed PW 1 resident of village Milwada, Tehsil Jhalra -patan. The parties were married some where in the year 1970 in village Dhanoda. When Mohammed went to bring his wife Hamida then the accused Bashir told that Hamida was no more his (Mohammed's) wife and also told that Hamida was now his (Bashir's) wife. A complaint was thus lodged against Bashir and Hamida for offences under Sections 497 and 494, IPC. The learned Judicial Magistrate, Jhalawar by his jugdment dated July 7, 1981, convicted Hamida under Section 494 IPC and sentenced to 9 months' simple imprisonment and a fine of Rs. 200/ - while accused Bashir was convicted under Section 497, IPC and the learned Sessions Judge. Jhalawar, allowed the appeal of Hamida but and sentenced to 6 months' S.I. and a fine of Rs. 200/ -. Both the accused persons filed an appeal maintained the conviction and sentence of Bashir. In these circumstances. Bashir has now filed the present revision before this Court.

(3.) SO far as the charge levelled against Hamida that she was married to Bashir, learned Sessions Judge himself has disbelieved the prosecution evidence. While acquitting Hamida learned Sessions Judge has observed that burden lay on the prosecution to prove a lawful marriage of Hamida with Bashir. Mohammed complainant in this regard stated that he had heard that Bashir had taken Nikah with Hamida. In the cross -examination Mohammed admitted that Nikah had not taken place in his presence and he had only heard. He was unable to tell as to who was Kazi, who had performed the ceremony of Nikah. He was unable to tell as to when the Nikah had taken place between Bashir and Hamida. So far as the other prosecution witnesses are concerned, they only stated that when truy had gone with Mohammed to bring Hamida then Hamida had told that she had taken Nikah with Bashir. Thus, the learned Sessions Judge from the above evidence held that the prosecution had not produced a single witness in whose presence Nikah has taken place between Bashir and Hamida nor any fixed tims or place of such Nikah was told by the prosecution witnesses.