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Gauhati High Court · body

2015 DIGILAW 1513 (GAU)

Arup Haloi v. State of Assam

2015-12-10

RUMI KUMARI PHUKAN

body2015
ORDER : 1. This criminal revision under Section 401 read with Section 482 of the Cr. P.C. preferred by the petitioner challenging the legality and validity of the impugned judgment and order dated 20.05.2006 in Criminal Appeal No. 69/2004 passed by the learned Additional Sessions Judge, Kamrup, in upholding the judgment and order dated 16.10.2004 passed in C.R. No. 2335C/2003 by the learned S.D.J.M. (S) No. 1, Kamrup in convicting the petitioner and sentencing him to undergo rigorous imprisonment for a period of 4 (four) months and to pay fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for 1 (one) month. 2. The facts of the case of the petitioner is that the respondent as complainant has filed a complaint case against the petitioner before the learned Chief Judicial Magistrate, Kamrup alleging that on 07.03.2000 she was married to the petitioner as per Hindu rites, and thereafter, they were started living as husband and wife in the house of the husband at Bhetapara, Guwahati. It is alleged that after the marriage, the petitioner and his family members started torture her both mentally and physically for demand of dowry. She was physically assaulted even for getting not satisfactory state of articles. Further she complained that her husband and her father-in-law demanded Rs. 50,000/- as dowry and warned her that she will be tortured more if she fails to fulfill the demand, and ultimately, on 27.06.2003 she was driven out from the house of the petitioner. 3. Learned Courts below took cognizance of the complaint under Section 498A of the Indian Penal Code and notice was served upon the petitioner to answer the charge. Accordingly, the petitioner entered into appearance before the learned Trial Court and denied the charge under Section 498A of the Indian Penal Code, which was leveled against him. The learned Trial Court after examining three witnesses of the complainant concluded the trial and finally held the accused guilty under Section 498A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for four months and also to pay fine of Rs. 1,000/-, in default, rigorous imprisonment for one month as aforesaid. 4. The appeal was preferred before the Additional Sessions Judge, Kamrup also failed and the learned Appellate Court upheld the judgment so passed by the learned Trial Court. 1,000/-, in default, rigorous imprisonment for one month as aforesaid. 4. The appeal was preferred before the Additional Sessions Judge, Kamrup also failed and the learned Appellate Court upheld the judgment so passed by the learned Trial Court. Being aggrieved with the aforesaid findings of the learned Appellate Court, present revision has been preferred by the petitioner on the grounds that the learned Trial Court as well as the learned Appellate Court has failed to exercise jurisdiction vested in terms of law and failed to appreciate the evidence in proper perspective. 5. It has been challenged that there is no proper evidence to constitute the offence of cruelty under the provisions of Section 498A of the Indian Penal Code and even the witnesses of the complainant failed to support the case of the complainant on material aspects. 6. I have heard Mr. A.M. Mazumdar, learned counsel for the petitioner. Also heard Mr. H. Sarma, learned Additional Public Prosecutor, Assam appearing for the State respondent. 7. Basing upon the ground set forth in the revision, the learned counsel for the petitioner strenuously argued that there was absolutely no evidence on the side of the respondent/complainant to support the allegations and the learned Court below is erred in concluding that the offence of cruelty is made out on the part of the petitioner towards his wife. Pointing towards the cross-examination of the PW – 2 and PW – 3, the learned counsel for the petitioner has urged that those witnesses totally failed to support the case of the complainant as they have no personal knowledge of the occurrence so the complainant/respondent has failed to support her allegation as averred in the complaint petition. 8. It is the case of the petitioner that the respondent herself has left their house at her own will and she is not willing to continue the marital life with the petitioner and the allegations of torture is a false pretext. 10. I have considered the rival contentions of both the parties and also gone through the evidence on record. According to the respondent/complainant, her husband/petitioner and his family members being not satisfied with the dowry brought by her, was used to complain and maltreated her on the score itself. 10. I have considered the rival contentions of both the parties and also gone through the evidence on record. According to the respondent/complainant, her husband/petitioner and his family members being not satisfied with the dowry brought by her, was used to complain and maltreated her on the score itself. Her evidence that the accused used to return home at late night and her in-laws did not utter any single words while she was complaining for that and the accused used to kept her room locked from outside. Further, it is also stated that the accused raised the demand of Rs. 50,000/- to be brought from her parents and treated her with cruelty as she could not bring demanded money and ultimately, being unable to tolerate the torture, on 02.06.2003, she return to her parental house without the knowledge of the family members of her in-laws. 11. After four days, she came to know from a letter sent to them that her husband has linked with some organization and her parents are decided not to her back to the matrimonial house. PW – 2 and PW – 3 have also stated that they came to know from the complainant about the facts that the accused has demanded dowry and on account of non-fulfillment of demand, the accused assaulted and tortured her but they have no personal knowledge of the matter. 12. Both the PW – 2 and PW – 3 are no way related to the complainant and they have fairly submitted that they never seen such torture upon the respondent alleged to be made by the petitioner. In their cross-examination, both the witnesses has clearly stated that they had not seen any of the incident that has been alleged by the complainant that she was confined in the house, that she was ousted from the house and it is also admitted that from 02.06.2003, the complainant herself went to her house in her own way and there was no matter of assault. 13. On appreciation of the evidence, it is found that in the complaint petition, the respondent/complainant has alleged that she was ousted by the petitioner by making assault on the fateful day and since then she is residing in her paternal house. 13. On appreciation of the evidence, it is found that in the complaint petition, the respondent/complainant has alleged that she was ousted by the petitioner by making assault on the fateful day and since then she is residing in her paternal house. On the course of hearing, she and her witnesses has clearly stated that she returned to her parental house at her own will without informing petitioner and hihs family so in view of such sharp contradiction in the statement of the witnesses including the complainant, no credibility can be given to such false statement of the complaint. Authenticity of allegation is to be gauged properly, and mere mechanical statement cannot be accepted unless substantiated. 14. On the next, it is also stated that both the PW – 2 and PW – 3 without having any personal knowledge of the matter has given evidence which is also not tenable in the eye of law and facts. The complainant and her witnesses nowhere mentioned as to the manner, time and place, etc. as to how she was tortured, in absence of which, a mere vague statement about torture will not be sufficient to prove the allegation of cruelty within the purview of Section 498A of the Indian Penal Code. Section 498A is reproduced herein below: “498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extended to three years and shall also be liable to fine. Explanation – For the purposes of this section, “cruelty” means – (a) Any willful conduct which is of such a nature as is likely to rive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 15. (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 15. It will be clear from the language of Section 498A, Indian Penal Code, that if a husband subjects his wife to cruelty, he shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The Explanation under Section 498A defines “cruelty” for the purpose of Section 498A to mean any of the acts mentioned in Clause (a) or Clause (b). In this case, Clause (b) is not attracted as there was no harassment by the husband with a view to coercing her to meet any unlawful demand for any property or valuable security or on account of failure by her to meet such demand. The first limb of Clause (a) of the Explanation of Section 498A, Indian Penal Code, states that “cruelty” means any willful conduct which is of such nature as is likely to drive the woman to commit suicide. 16. In any case, to hold an accused guilty of the offence under Section 498A of the Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the respondent was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW – 2 and PW – 3, I find that they have made general allegations of harassment by the petitioner towards the respondent 1 and have not brought it evidence any specific acts of cruelty or harassment by the petitioner on the respondent. 17. In the present case, although the learned Trial Court has found the petitioner of guilty conduct and the Appellate Court has also upheld the same, but the cruelty as has been indicated under Section 498A of the Indian Penal Code is not at all proved, as has been discussed above, and in view of which, the findings of both the learned Courts below is perverse and not sustainable in law and liable to be interfered with. 18. 18. Accordingly, the impugned judgment and order dated 20.05.2006 in Criminal Appeal No. 69/2004 passed by the learned Additional Sessions Judge, Kamrup, in upholding the judgment and order dated 16.10.2004 passed in C.R. No. 2335C/2003 by the learned S.D.J.M. (S) No. 1, Kamrup is hereby set aside and the petitioner is hereby set at liberty forthwith. 19. Criminal revision is disposed of. Send back the case records.