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2010 DIGILAW 492 (GAU)

Kripa Bayan v. State of Assam

2010-07-22

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A. Choudhury, learned Counsel for the Appellants and also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam. 2. The Appellants were convicted under Sections 498A/306 IPC and sentenced to undergo rigorous imprisonment for 2(two) years and fine of Rs. 1000/- in default to pay the fine simple imprisonment for 1 (one) month under Section 498A IPC and to undergo rigorous imprisonment for 3 years and fine of Rs. 2000/- in default to pay the fine further simple imprisonment for 3(three) months under Section 306 IPC vide judgment and order dated 28.11.2002 rendered by the learned Addl. Sessions Judge (Adhoc), Barpeta in Sessions Case No. 39/2001. The said judgment and order is under challenge by the Appellants in this appeal. 3. Briefly stated the prosecution case is that deceased Smt. Labanya Kakati had love affair with accused Kripa Bayan and as a result, the deceased got pregnant. The informant with the help of villagers took her (Labanya) to the house of accused Kripa Bayan before about one year of the occurrence and left her in his house. The accused Kripa and Labanya were living happily as husband and wife but the accused persons started giving harassment and torture to the deceased and out of such cruelty, she committed suicide in the house of the accused persons by hanging on 01.05.1994. The informant Shri Ramen Kakati, brother of the deceased lodged a written FIR with the O.C. Barpeta, which was received and registered as Barpeta P.S. Case No. 214/94 under Sections 306/498A IPC. The I.O. visited the place of occurrence and recorded the statements of witnesses under Section 161 Code of Criminal Procedure and held inquest on the dead body. During investigation, the I.O. seized one 'letter' (suicide note) written by the deceased which was kept inside the bra of a deceased and one jute rope from the place of occurrence, which was used by the deceased for hanging. The I.O. sent the dead body to Barpeta Civil Hospital for post mortem examination. After completing the investigation, he submitted the charge sheet against all the accused-persons under Section 498A IPC. The case being committed by the learned Chief Judicial Magistrate, Barpeta to the Court of Sessions, Barpeta, charges under Sections 498A/306 IPC were framed against all the accused-persons. The I.O. sent the dead body to Barpeta Civil Hospital for post mortem examination. After completing the investigation, he submitted the charge sheet against all the accused-persons under Section 498A IPC. The case being committed by the learned Chief Judicial Magistrate, Barpeta to the Court of Sessions, Barpeta, charges under Sections 498A/306 IPC were framed against all the accused-persons. The charges being read over and explained, the accused-Appellants pleaded not guilty and claimed to be tried. The prosecution examined as many as 8 witnesses but the accused-persons declined to adduce any evidence in support of their defence. On the basis of the evidence recorded and the materials made available on record and after hearing the parties, the learned trial Court convicted and sentenced the accused-Appellants as indicated above. 4. The prosecution projected a case of physical and mental torture/harassment on the victim against the accused-Appellants, who demanded household materials as dowry from her, which led her to commit suicide. Except the evidence of PW-3, no other witness has deposed to the effect that they had any personal knowledge or information about the dowry demand, torture or harassment on the deceased. Even PW-3, informant brother of the deceased, did not depose to the effect that he had ever seen his deceased sister being tortured mentally or physically by the accused-Appellants. What he said was that some time he was told by her deceased sister before her death that she was tortured by the Appellants but his evidence was not corroborated by any witness. Such evidence of the informant, without being corroborated by the evidence of any other witness, would not be acceptable as a piece of legal evidence. In order to record conviction against the accused-persons, the prosecution must establish by cogent and reliable evidence that the husband or relatives of the husband of a woman had subjected her to cruelty/harassment making unlawful demand for any property or valuable security or is on account of failure by her or any persons related to her to meet such demands. The prosecution miserably failed to bring home the charge under Section 498A IPC as it could adduce no evidence to that effect. 5. As regard the 'letter' (suicide note), which was proved and exhibited and marked as M. Ext. The prosecution miserably failed to bring home the charge under Section 498A IPC as it could adduce no evidence to that effect. 5. As regard the 'letter' (suicide note), which was proved and exhibited and marked as M. Ext. 'Ka', it is found that although it was stated to have been recovered from the body of the deceased, which was kept inside her bra and seized by the I.O. in presence of some witnesses, it was not sent for examination by handwriting expert to verify whether the said suicide note was written by the deceased herself. The said suicide note does not bear any signature and as such, it was necessary to get the handwriting in the suicide note verified/tested by a handwriting expert. No explanation has been offered by the I.O. why the said suicide note was not sent for testing by handwriting expert for verification and opinion. Without such expert opinion, it would not be proper on the part of the Court to come to a conclusion that the suicide note was written by the deceased herself. The prosecution while examining the independent witnesses namely, PW-1, PW-2, PW-4 and PW-5, who were present at the time of conducting the inquest and preparing the seizure list, did not even make it a point to prove through them mat they were shown the suicide note and they were acquainted or familiar with the handwriting of the deceased. Independent witness, PW-4 even stated that he did not know from which place the police seized the 'letter' (suicide note). The handwriting in the suicide note having not been tested/verified by any handwriting expert and proved by the prosecution by producing/examining any persons acquainted/familiar with handwriting of the deceased, it would not be safe to come to a conclusion that the suicide note containing incriminating contents against the Appellants was written by her and thus resultant conviction and sentence would be improper and unsustainable in law. 6. Having considered the entire facts and circumstances of the case and the evidence and materials on record, I could not persuade myself to agree with the findings and conclusion arrived at by the learned trial Court in convicting and sentencing the accused-Appellants. The criminal jurisprudence requires that the charge against the accused-person should be proved beyond all shades of reasonable doubt and no conviction is maintainable unless it is so done by the prosecution. The criminal jurisprudence requires that the charge against the accused-person should be proved beyond all shades of reasonable doubt and no conviction is maintainable unless it is so done by the prosecution. In my considered view, in the present case, the prosecution miserably failed to prove the case in the manner and to the standard of proof required under the criminal jurisprudence. 7. In view of the above, the impugned judgment and order dated 28.11.2002 convicting and sentencing the accused-Appellants is liable to be set aside. It is accordingly set aside and ordered. The accused-Appellants stand acquitted. The bail bonds would stand discharged. 8. The appeal stands allowed. 9. Send down the LCR to the Court below forthwith. Appeal allowed