Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 883 (GAU)

Nizam Ahmed @ Babu v. State of Assam

2012-07-26

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 19.1.2004, passed, in GR Case No. 557/2001, by the learned Chief Judicial Magistrate, Jorhat, the accused-petitioner, Nizam Ahmed @ Bubu, and his brother, Kazim Uddin Ahmed @ Kaju, were convicted under Section 498A read with Section 34 IPC and each of them was sentenced to suffer simple imprisonment for 3 (three) years and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer simple imprisonment for another period of 6(six) months. Aggrieved by their conviction and the sentence, passed against them, both the convicted persons preferred an appeal, which gave rise to Criminal Appeal No. 14/2003, which was disposed of by judgment and order, dated 12.04.2004, passed by the learned Additional Sessions Judge (ad hoc), Jorhat, whereby the learned Additional Sessions Judge, while upholding the conviction of the present accused-petitioner, Nizam Ahmed @ Bubu, set aside the conviction of the present accused-petitioner's brother, Kazim Uddin @ Kaju, and acquitted him of the charge, framed against him under Section 498A read with Section 34 IPC. While so maintaining the conviction of the present accused-petitioner, the sentence, passed against him, was, however, modified in the sense that his sentence of simple imprisonment for 3 (three) years with fine of Rs. 2,000/- was reduced to simple imprisonment for a period of 6 (six) months with fine of Rs. 500/- and, in default of payment fine, to undergo simple imprisonment for a further period of 2 (two) months. Still dissatisfied with the judgment and order, passed in the appeal aforementioned, the accused-petitioner has, with the help of this revision, put to challenge the finding of guilt, recorded under Section 498A IPC and the sentence passed against him. The case of the prosecution may, in brief, be described thus: The marriage between the present accused-petitioner and the informant (PW1) was solemnised, on 10.10.1999, according to the Muslim Personal Law and the accused-petitioner and his spouse started living together at the house of the accused-petitioner as husband and wife. However, after about a week of the marriage, the accused-petitioner started ill-treating his wife (PW1). Usually, the accused-petitioner came home in drunken state, he used to abuse his wife and, at times, assault her not merely by using his hands, but also by means of lathi. In course of time, the accused-petitioner demanded that a sum of Rs. However, after about a week of the marriage, the accused-petitioner started ill-treating his wife (PW1). Usually, the accused-petitioner came home in drunken state, he used to abuse his wife and, at times, assault her not merely by using his hands, but also by means of lathi. In course of time, the accused-petitioner demanded that a sum of Rs. 15,000/- be brought by PW1 from her parents. Though she did not, initially, inform her parents about the demand of money, which had been so raised by the accused-petitioner, she, later on, conveyed the demand of the accused-petitioner to her parents and her father opened, in her name, a monthly recurring deposit account of Rs. 500/- at a bank. Though PW1 reported to her mother-in-law and brother-in-law as regards the treatment, which she was being subjected to by her husband, they appeared to have approved the conduct of their son (i.e., the accused-petitioner). On 20.12.2000, the accused-petitioner came home at night and assaulted PW1 and demanded that she shall bring Rs. 20,000/- from her parents or else, she (PW1) shall leave her matrimonial house. By raising his demand for money, as mentioned hereinbefore, the accused-petitioner drove PW1 out of her bedroom and, as a consequence thereof, PW1 had to sleep, on the sofa, in the drawing room of her matrimonial house. Though PW1 was, at that point of time, sick, her husband did not provide any medical treatment to her. Eventually, on 31.12.2000, she informed her father about the incident, her father came, in the morning, on the following day and took her away and got her treated by the doctor. Thereafter, neither the accused-petitioner nor his mother or brother took any initiative to bring back PW1 to her matrimonial house. Left with no alternative, PW1 continued to leave with her parents and lodged, on 14.07.2001, at Jorhat Police Station, a written Ejahar. Treating the said Ejahar as First Information Report, a case, under Section 498A read with Section 34 IPC, was registered against the accused-petitioner and his said brother and, on completion of investigation, a charge-sheet was accordingly laid, under Section 498A/ 34 IPC, against the present petitioner and his brother, Nizam Ahmed @ Bubu. 2. At the trial, when a charge, under Section 498A read with Section 34 IPC, was framed against both the accused persons aforementioned, both of them pleaded not guilty thereto. 3. 2. At the trial, when a charge, under Section 498A read with Section 34 IPC, was framed against both the accused persons aforementioned, both of them pleaded not guilty thereto. 3. In support of their case, prosecution examined as many seven witnesses including the Investigating Officer. The accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found both the accused aforementioned guilty of the charge framed against them, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, passed against them, the convicted persons preferred, as pointed out above, an appeal and since the appeal, as indicated above, has not yielded the desired result in favour of the accused-petitioner, the accused-petitioner is, now, before this Court with the present revision. 5. I have heard Mr. Z. Alam, learned counsel for the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 6. While considering the present revision, it needs to be noted that it is PW1 around whose evidence revolves the entire case of the prosecution inasmuch as there is no witness to the acts of cruelty, which had allegedly been meted out by the present accused-petitioner, for, there is no witness, other than PW1, with regard to the abuses and assaults, which she was allegedly made to bear and/or the demands for money, which were allegedly raised by the accused-petitioner. If, therefore, the evidence, given by PW1 is not found to be wholly trustworthy and reliable, her evidence could not have been made the foundation for convicting the accused-petitioner. 7. It is, therefore, necessary to closely examine the evidence of PW1 to determine if she was a wholly reliable witness. In this light, when the evidence of PW1 is closely examined, it transpires that, according to her evidence, her husband started ill-treating her and misbehaving with her after about a week of her marriage with her husband and, in this regard, she claims that her husband used to come home drunk at night and abuse her and, at times, even assault her by hands and also by lathi. It is in the evidence of PW1 that, on 26.08.2000, her husband asked her to bring from her parents Rs. 15,000/- and, though she did not, initially, convey the demand to her parents, she, at the end, reported the matter to her father, who, in turn, opened a monthly recurring account of Rs. 500/-, in a bank, in her name. It is also in the evidence of PW1 that, on 20.12.2000, her husband came home drunk and demanded Rs. 20,000/- from her and he also assaulted her, drove her out of her bedroom forcing her thereby to sleep, on the sofa, in their drawing room, though, at that point of time, she was ill. It is the further evidence of PW1 that no medical treatment was provided to her by her husband and, eventually, on 31.12.2000, she informed her father, over telephone, about the incident, her father came to her matrimonial house on the following day, took her away with him and got her treated by doctors. 8. While cross-examining PW1, the defence denied that she had stated before the police that she had been required to sleep on sofa in their drawing room, that her husband had demanded Rs. 15,000/- and that a monthly recurring deposit of Rs. 500/- had been opened by her father and that her husband came home drunk and assaulted her. Thus, all the material accusations, which had surfaced in the evidence of PW1, as against the present petitioner, were omitted by PW1, when her statement was recorded by the police inasmuch as the Investigating Officer has deposed, in his cross-examination, that PW1 had not stated before him that her husband had demanded Rs. 15,000/- from her, nor had she stated about any medical treatment, which she claimed to have undergone as a result of her husband's physical torture. This apart, the monthly recurring deposit account, which PW1 claims to have been opened by her father, was, according to her own evidence, in the name of PW1 herself and, hence, the opening of this recurring deposit account cannot be attributed to the cruelty, which PW1 was allegedly subjected to. 9. Coupled with the above, though PW1 claims that, when she, on 31.12.2000, informed her father that she was ill, her father not only took her away from her matrimonial house, but also got her medically treated. 9. Coupled with the above, though PW1 claims that, when she, on 31.12.2000, informed her father that she was ill, her father not only took her away from her matrimonial house, but also got her medically treated. Not a scrape of paper/document was, however, produced, at the trial, showing that PW1 had undergone any medical treatment following her departure from her matrimonial house under compelling circumstances, which she has described. 10. Situated thus, it becomes clear that PW1 cannot be regarded as a wholly reliable witness. Even if, therefore, her evidence is not rejected outright as the evidence of a wholly unreliable witness, her evidence fells, at least, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable witnesses, and a witness of this category requires credible corroboration from other evidence on record, direct or circumstantial. However, when the evidence on record, given by other witnesses, are taken into account, there is, as already observed above, no person, who had witnessed PW1 being subjected to any form of cruelty. There is no credible and convincing corroborating evidence on record that any injury was found on the person of PW1 and that she was required to undergo medical treatment for such injury. In the absence of any medical evidence on record or any material indicating PW1 having been treated by doctor(s), no credence can be given to the claim of her parents that PW1 was subjected to cruelty, she became ill and had to be medically treated. 11. Because of what have been discussed and pointed out above, this Court is of the firm view that it could not have been held by the learned trial Court that the charge, framed against the accused-petitioner, under Section 498A IPC, stood proved beyond reasonable doubt. The learned trial Court, therefore, committed serious error, both in law and fact, in convicting the accused-petitioner and the learned appellate Court appears to have not taken note of the above aspects, which made the evidence of PW1 and also the evidence of other witnesses not sufficiently credible to warrant conviction of the accused-petitioner. 12. In the result and for the reasons discussed above, this revision succeeds. The impugned judgments and orders are hereby set aside. The accused-petitioner is held not guilty of the offence charged with under Section 498A IPC and he is hereby acquitted of the same. Send back the LCR.