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2015 DIGILAW 373 (GAU)

Imran Khan v. State of Assam

2015-03-25

RUMI KUMARI PHUKAN

body2015
Rumi Kumari Phukan, J. 1. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 08.10.2012 passed by the learned Sessions Judge, Bongaigaon, in connection with Sessions Case No. 54(A)/2005, convicting the accused appellant Sri Imran Khan, u/s. 498(A) IPC and sentencing him to undergo rigorous imprisonment for 3 years, and a fine of Rs. 3,000/-, and in default of payment of fine, further rigorous imprisonment for 6 months. The brief facts of the prosecution can be stated in a nut-shell that the daughter of the informant Abu Sama was given marriage to the accused Imran Khan about 3 years back and out of their wed-lock, a girl child was born. Suddenly, on 10.06.2003, at about 8PM, they got an information that their daughter has committed suicide and thereafter, the father of the deceased woman lodged an FIR before the Officer-in-charge, Abhayapuri, to the effect that the accused and his family used to torture her demanding Rs. 15,000/- as dowry. So, it might be a case of murder on the part of the accused persons and thereafter, hanged her body on a tree. A case was registered vide Abhayapuri P.S. Case No. 73/2003 u/ss. 498A/306 IPC. On completion of investigation, charge-sheet was submitted against the accused person Imran Khan and his mother. On being committed, the accused faced the trial before the learned Sessions Court and the accused denied the charges levelled against him. In course of trial, prosecution examined 12 witnesses in support of the case and defence also examined 4 witnesses on plea of their denial. At the conclusion, the learned Sessions Judge found the accused Imran Khan guilty u/s.498(A) IPC and convicted and sentenced him, as aforesaid. 2. Being aggrieved with the aforesaid judgment and order, the appellant has preferred the appeal on the grounds that the learned Court below has failed to appreciate the evidence and has arrived at an erroneous finding about guilt of the accused while there is no conclusive evidence as regards the cruelty on the part of the accused persons in terms of section 498(A) IPC. Further contention of the appellant is that the demand of dowry as mentioned in the FIR is only an afterthought which can be inferred from the delay in the FIR and no explanation has been given for delay in filing the FIR. Further contention of the appellant is that the demand of dowry as mentioned in the FIR is only an afterthought which can be inferred from the delay in the FIR and no explanation has been given for delay in filing the FIR. On the next, the FIR itself is given on mere assumption and prior to that also, there was no any case has been filed alleging torture by the appellant. Thus, it has been assailed that in absence of clear, consistent and inspiring evidence from the side of the prosecution, and in view of defence evidence so adduced by the accused appellant, it can be held that the prosecution has miserably failed to prove the charges against the accused beyond all reasonable doubt. 3. Initiating the argument, the learned addl. P.P. has argued that in view of testimony of the parents as well as the testimony of the relative of the deceased, a case of cruelty is made-out on the demand of dowry. The fact that the deceased reported the demand of Rs. 15,000/- by the accused, and the assault made by the accused husband, to her parents when she came to her parental house, is enough to hold about the cruelty on the part of the accused appellant. The fact that the victim died in a doubtful circumstance is another aspect which aim at the cruelty meted upon the victim. 4. Per contra, the argument of the learned counsel for the appellant is that the evidence of PW-1, informant, and PW-2 who were parents of the victim, cannot be accepted in view of the fact that they never informed such matter to any other person in their locality nor any neighbour and also the factum of delay, without any explanation raised the scope of manipulation. That apart, save and except, about the demand of Rs. 15,000/-, no any series of conducts of cruelty is alleged or proved. Only one instance has been mentioned which is again doubtful. The fact that the appellant was not present at the time of occurrence was not appreciated by the learned Court below. For the above reasons, it cannot be held that the prosecution has proved the charges beyond all reasonable doubts. 5. Learned defence counsel has also relied upon the decision rendered in the case of Jitendra Shome Vs. The fact that the appellant was not present at the time of occurrence was not appreciated by the learned Court below. For the above reasons, it cannot be held that the prosecution has proved the charges beyond all reasonable doubts. 5. Learned defence counsel has also relied upon the decision rendered in the case of Jitendra Shome Vs. State of Tripura reported in 2012 (3) GLT 879, wherein this Court has held that: "the omnibus statement of the witnesses can in no way be said to be convicting evidence to hold that the deceased was subjected to harassment with a view to coerce her to fulfil her unlawful demand of Rs. 20,000/-. A mere statement that the deceased was subjected to cruelty on demand of money does not constitute an offence under Section 498-A of IPC. If such a demand was actually made, it is further necessary to prove that the degree or intensity of such cruelty on the part of the accused is such as is likely to cause grave injury or danger to her life, or limb or to her mental and physical health. If the deceased was subjected to cruelty by the accused or any member of her matrimonial home during five years of her matrimonial life, she would naturally express her plight to her neighbours, relatives, and other people in the society. In the case, at hand, except the mother, brother, uncle and cousin brother of the deceased, there is no other item of evidence to support the allegation of cruelty. Under such circumstances, the prosecution case that the deceased was subjected to cruelty by the accused in the matrimonial home on demand of Rs. 20,000/- seems to be extremely doubtful and based on such fractured evidence, it was not be proper to hold the accused guilty of the offence charged against him." 6. I have considered the rival contentions of the parties. Acceding to the learned defence counsel, no case under Section 498(A) IPC has been made out against the accused appellant, in absence of any specific evidence regarding harassment and torture as regard time, manner, etc.. The cruelty postulates in the offence is of matter of degree and gravity, which is absent in this case. 7. Acceding to the learned defence counsel, no case under Section 498(A) IPC has been made out against the accused appellant, in absence of any specific evidence regarding harassment and torture as regard time, manner, etc.. The cruelty postulates in the offence is of matter of degree and gravity, which is absent in this case. 7. In pursuance of the submission, if we scrutinize the evidence on record, it will be found that PWs-1 and 2, parents of the victim, have given a vague statement that the accused tortured the victim by demanding money of Rs. 15,000/- and she came to their house for their torture but the accused again took her away. The other witnesses PWs-3 and 4 are relatives of the other two witnesses PWs-1 and 2 and they were also told by PW-1 about such demand of money. However, they have no personal knowledge of the occurrence nor they have seen any cruelty meted upon the deceased by the accused family. Similarly, PWs-5, 6 and 7, being neighbours of the accused appellant, has led evidence only about the factum of recovery of the dead body of the deceased which was found hanging on a tree. None of them has stated against the accused appellant that there was strain relationship between the deceased and the accused and the accused ever tortured the deceased in any manner. So we are left with the evidence of parents only. But their evidence is totally silent as to the manner, date and time, etc., about such demand of dowry or torture on the part of the accused appellant. The offence under section 498(A) IPC postulates the cruelty of such nature which is likely to force the woman to commit suicide or to grave injury or danger to life, limb or health of the woman. 8. The Hon'ble Apex Court in the case of Girdhar Shankar Tawade Vs. State of Maharashtra, (2002) 5 SCC 177 ; held that: "absence of evidence regarding "grave injury or danger to life, limb or health" of the woman as contemplated under Cl.(a) of the expln. - that being so, expln.(a) not attracted to the facts of the case - further, in absence of evidence regarding demand for dowry, harassment by itself would not constitute cruelty within the meaning of expln. - that being so, expln.(a) not attracted to the facts of the case - further, in absence of evidence regarding demand for dowry, harassment by itself would not constitute cruelty within the meaning of expln. (b) - thus, "cruelty" on facts, not made out - there must be some cogent evidence to bring home the charge under Section 498-A - on facts, held in absence of such evidence, accused cannot be convicted under section 498-A." In the case of Sakharam & Anr. Vs. State of Maharashtra, (2003) 12 SCC 368; the Hon'ble Apex Court held that mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498(A) IPC, the prosecution is required to prove the overt acts attributed by the accused appellant beyond all reasonable doubts. 9. As the facts from which cruelty is to be inferred are to be alleged and proved. It is not sufficient to merely say that deceased was subjected to torture or cruelty. No any medical report, etc., has been furnished to reflect the injury of the victim. Even the verbal testimonies of the parents of the victim is not at all clear what was the injury inflicted upon the victim. The specific acts of omission or commission by the alleged offender has to be specifically proved. In absence of proof of such acts of omission or commission, the Court is not in a position to decide whether the conduct of accused amount to cruelty within the meaning of Section 498(A) IPC. So the vague and exaggerated version of the family members of the victim cannot be accepted as a true version of the occurrence unless it is proved by other reliable facts and circumstances. 10. In the matter, in hand, there is absolutely no proper evidence to prove the fact that prior to her death, the victim was subjected to mental or physical torture. As has been discussed above, the scanty and uncorroborated version of the informant coupled with the fact of delay in filing the FIR, only on assumption, cannot be a good ground to hold the guilt of the accused and the evidence is not inspiring to the mind of the Court. As has been discussed above, the scanty and uncorroborated version of the informant coupled with the fact of delay in filing the FIR, only on assumption, cannot be a good ground to hold the guilt of the accused and the evidence is not inspiring to the mind of the Court. Though the defence evidence is not accepted by the Court below, but the fact remains that the prosecution is to prove its case, beyond all reasonable doubts and it cannot succeed in the lacuna of the defence story. It is a settled position of law that burden to prove the case is always with the prosecution which never shift to the defence exception exceptional circumstances and wherefrom two possibilities are available or open, which if one goes in favour of the prosecution and other benefits to the accused, that the accused is undoubtedly entitled to get the benefit of doubt. 11. Therefore, in the facts and circumstances involved in this case and in view of the medical opinion, that the injury was ante-mortem, it cannot be ruled-out that the victim committed suicide for the reason known to her. The learned trial Court very much impressed upon the fact of the death of the victim and has accepted the testimonies of the parents without proper perspective of law as well as facts. While deciding a criminal charge, the strict proof is required and the prosecution is obliged to prove the ingredient of the offence and the proof of guilt is always to be based upon legal, credible and un-impeachment evidence without inspiring by the emotion of an aggrieved person. 12. Regarding filing of two FIRs, it is to be noted that evidence of the I.O. has clarified the matter as he has stated that on the basis of the FIR informing about the commission of suicide by the deceased, he registered the U.D. case and filed the report accordingly. But, on the subsequent FIR so filed by the informant, the present case has been registered. So, there is nothing to deliberate upon the subject. 13. In view of the above position, it can be safely and fairly held that the prosecution has not been able to prove the charge against the accused, beyond all reasonable doubts and thus, the conviction of the accused, above mentioned, u/s. 498(A) IPC, is liable to be interfered with. 14. So, there is nothing to deliberate upon the subject. 13. In view of the above position, it can be safely and fairly held that the prosecution has not been able to prove the charge against the accused, beyond all reasonable doubts and thus, the conviction of the accused, above mentioned, u/s. 498(A) IPC, is liable to be interfered with. 14. In the result, it is held that the charge levelled against the present accused must fail and in that view of the matter, the accused is set at liberty forthwith in connection with the above noted case. Return the LCRs along with a copy of this judgement & order.