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2015 DIGILAW 1472 (GAU)

Abida Begum v. State of Assam and others

2015-11-27

RUMI KUMARI PHUKAN

body2015
Rumi Kumari Phukan, J.:-- Heard Mr. J. Ahmed, learned counsel for the appellant. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam appearing for the respondent No. 1 and Ms. S.E. Ahmed, learned counsel appearing for the respondent Nos. 2 to 6. 2. The present appeal has been preferred against the Judgment and Order dated 06.09.2014 passed by the learned Additional Chief Judicial Magistrate, Barpeta in C.R. No. 1961/2008 whereby acquitting the respondents from the charges under Section 498(A)/34 of the Indian Penal Code. 3. I have gone through the matters on record as well as the LCR and the impugned Judgment and Order dated 06.09.2014. 4. It is the plea of the appellant that there is a specific allegation of the appellant regarding torture and cruelty on the demand of dowry on the part of the private respondents which was proved by her supporting evidence but the learned Court below has not accepted the case of the appellant on the two basic ground that there is delay in filing the complaint, and that, there is no evidence of independent witness so examined by the complainant so as to prove her case and ultimately acquitted the accused persons under charge of holding that prosecution has failed to prove the case beyond the reasonable doubt. Accordingly to the appellant, the Judgment and Order is not maintainable in view of the fact that there is sufficient evidence on record which has not been appreciated by the learned Court below and also the Court went on wrong motion while appreciating the evidence of the complainant side on the point of delay and of having of no independent witness. It is also contended that the Court lost sight of the corroborating evidence of the complainant side and the other vital aspect that there can be hardly any independent witness in such matrimonial affairs. 5. On the other hand, learned counsel for the private respondents has support the Judgment and order of Trial Court on the ground that the case of the complainant is not proved by any sort of independent witness and the complainant herself went to her parental house for delivery of the child and she has not returned at her own volition. It has also be alleged that there is no ground for appeal. 6. It has also be alleged that there is no ground for appeal. 6. I have considered the rival submissions of both the parties and also gone through the evidence on record. It is to be noted that complainant was filed basically on the ground that the accused persons by demanding dowry inflicted mental and physical torture upon the complainant and to save the marriage, the family members of the complainant used to pay some money against such demand. The evidence on record reveals that the complainant was asked to pay Rs. 1,00,000/- on demand and as against the said demand, an amount of Rs. 20,000/- was given in two instalments by the father of the complainant, i.e., the PW - 2 and has been corroborated by the other witnesses. 7. It is a matter of common practice that such demand of dowry and also payment remains within the family itself without disclosing others. In the Indian Society, Indian women generally tried to adjust with the adverse situation in her in-laws family only for the interest to save the marital tie and the children having no other alternative, before the helpless women. Here the witness of the witness has amply put that there was a mental torture upon the complainant on the demand of such dowry and same amount has also paid to the respondents against such dowry demand. 8. It also appears that the complainant was compelled to reside in her parental house while she was 8 months pregnancy and thereafter also the respondent side neither take her back nor provide any maintenance to the complainant for that she has filed the maintenance petition praying for maintenance of the child as well as the complainant. All these aspects indicating mental and physical tortures. There is no explanation on the part of the defence as to why they did not adhere to take back the complainant and the child from her parental house, if there was no torture on their part at all. 9. After going through the evidence on record, it also found that defence take no specific plea against the case of the complainant. Except some denial they could not made out any stand as to why the complainant was compelled to live apart from the matrimonial house. Defence also adduced no evidence rebuttal. 10. 9. After going through the evidence on record, it also found that defence take no specific plea against the case of the complainant. Except some denial they could not made out any stand as to why the complainant was compelled to live apart from the matrimonial house. Defence also adduced no evidence rebuttal. 10. In view of all above, can be held that there is scope of appreciation of evidence in the proper perspective of law and facts within Section 498(A) I.P.C. As regards the point of delay, and having no independent witness, it can be seen that there is a delay of 6 months in filing the complaint by the complainant but the case under Sections 498(A)/341 I.P.C. is unlike any other criminal case so as to consider delay in filing such case, not immediately after such discord of matrimonial dispute. The Indian women generally wait for settlement of the family dispute so as to restore the family tie and it so happened in many occasions that the matter also settled either party itself or by the society at large. In this context, in my view, delay in filing the case is not at all doubtful. 11. Further, the matrimonial offence generally happened within the four corners of matrimonial house and there can be hardly any independent witness to the internal affairs between the parties and nobody went to disclose such marital affairs to the society in the fear of humiliation social context, like a criminal offence. Mental torture and dowry demand cannot be expected to be quote by the independent witnesses in all the cases. In the given case, the learned Trial Court has appreciated the matter like purely a criminal offence not a matrimonial one and has arrived at a conclusion that the offence is not proved beyond the reasonable doubt, which whoever, is not maintainable in the eye of law as well as the facts. Accordingly, the Judgment and Order is interfered into. Order so passed in C.R. Case No. 1961/2008 dated 06.09.2014 passed by the learned Additional Chief Judicial Magistrate, Barpeta is hereby set aside and quashed. 12. The case is remanded back to the learned Court below to decide the case afresh having regard to all the legal provisions and facts and circumstances, of course without being bias by the observations made by this Court within a period of two months. 12. The case is remanded back to the learned Court below to decide the case afresh having regard to all the legal provisions and facts and circumstances, of course without being bias by the observations made by this Court within a period of two months. Parties are directed to appear before the concerned Court below on or before 16.12.2015. 13. Return the L.C.R. with a copy of the Judgment. Appeal Disposed of. -