P L D 1963 Dacca 798 (PLP)

"It has also been shown that they detained her for several days with the intent that she might have illicit intercourse with them. So all the ingredients of the charge against them have been proved."

7. Since Mr. Meser Ali's contention is that there is no evidence to justify that finding, I allowed him to place the evidence in this case although in exercise of the revisional juris diction of this Court, this Court, is ordinarily reluctant to allow an examination of the evidence afresh.

8. Now, going through the evidence it is found that P. W. 1 Abdul Latif Khan, husband of Rabiya who is alleged to have been enticed away, deposed to the effect that he learnt from P. W. 2 Jinnat Ali Lalukdar that his wife Rabiya was going towards Barisal with the petitioners Malek and Rahman. There is nothing in this evidence to show the required intention nor is there anything to show that there was an inducement or co‑operation between the petitioners and Rabiya before leaving for Barisal. P. W. 2 Jinnat Ali deposed as follows: "We saw accused Malek and Rahman going with Rabiya, who had a suit‑case in her hand to go towards Barisal." '"his witness does not say anything more than this. P. W. 3 Abdul Wahab Bhuiya does not give any evidence as to the taking away of Rabiya by the petitioners. In his deposition there is a statement to the effect that Rabiya had told them that the petitioners had taken her to the house of one Sattar. Firstly, Rabiya not having been examined in this case this statement is clearly inadmissible and secondly, Rabiya is alleged to have been taken to the house of Sattar at a later stage and not when they set out from the house of the complainant. Therefore, so far as P. W. 3 is concerned, he does not prove any of the ingredients of section 498 of the Pakistan Penal Code. P. W. 4 Nur Muhammad Munshi is the person who solemnized the marriage and the marriage not being challenged his evidence is not material for any other purpose. P. W. 5‑A Razzaque Bhuiya was not produced for cross‑examination and as such his deposition had been rightly expunged. P. W. 6 Mokbul Ahmed merely deposes to the effect that Rabiya was seen in the house of Sattar. His evidence does not prove any of the ingredients essential to constitute an offence under section 498 of the Code. This witness also deposed to the effect that Rabiya had told him that Malek and Rahman brought her to the house of Sattar. Rabiya not having been examined this particular statement is again inadmissible.

9. So that being the state of evidence, it is difficult to say that the finding arrived at by the learned Judge with regard to the intention, is justified. Apart from that there is no finding as to the taking away of Rabiya by the petitioners and a finding on this point is essential to warrant a conviction under section 498 of the Pakistan Penal Code. Because unless there is a taking away the later part of the section is immaterial. Now, on a scrutiny of the evidence it also appears that there is absolutely no evidence to show that there was any taking away' of Rabiya by the petitioners. Rabiya was found going to Barisal in the company of the petitioners, as has been deposed to by P. W. 2 Jinnat Ali. But going together by itself does not establish the taking away within the meaning of section 498 of the Code. The words taking away have been considered in the case of Mahadeo Rama v. Emperor (A I R. 1943 Bom. 179), Beaumont, C. J., in delivering the judgment of the Division Bench observed as follows :‑ ..It is not very easy to say what `taking away' means, but I think there must be some influence, physical or moral, brought to bear by the accused to induce the wife to leave her husband in order that her leaving may amount to taking away by the accused, and there is no evidence in this case of any physical or moral persuasion on the part of the accused." The same view is expressed in the case of Hossaini Methor v. Emperor (38 Cr. I. J 986) in which a Division Bench of the Calcutta High Court also observed as follows: " . . . . . that to bring section 498 into operation there must be some influence operating on the woman or co‑operating with her inclination at the time the final step is taken which causes a severance of the woman from her husband, for the purpose of causing such step to be taken. After going through the entire recorded evidence in their case, it is clear to me that there is absolutely no evidence of persuasion before leaving the house of the complainant and that being so it cannot be said that there has been a `taking away in this case within the meaning of section 498 of the Code and that ingredient being wanting in this case, the conviction of the petitioners cannot be upheld. 9‑A. One other aspect has also got to be observed in this case. Rabiya whose examination was absolutely necessary for unfolding of the narrative on which the prosecution case is) founded, has not been examined and no explanation for non examination of this material witness having been given, an inference adverse to the prosecution can rightly be drawn in this) case.

10. I have discussed the evidence at length and .I have already shown that the evidence led in this case is not sufficient to warrant a conviction under section 498 of the Code and in view of the presumption that if Rabiya would have been examined in this case, she would not have supported the prosecution case, the prosecution case becomes all the more weaker.

11. In the facts and circumstances of the case, I am therefore, of opinion that the conviction and sentence of the petitioners cannot be maintained. In the result, the Rule is made absolute, the conviction and sentence of the petitioners are set aside and the fine, if realised, be refunded. S. B:/A. H. Conviction set aside.