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2017 DIGILAW 873 (GAU)

SAYADA HASINA BEGUM v. SAYAD FAIRUL ALI

2017-07-10

RUMI KUMARI PHUKAN

body2017
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. This revision is directed against the order of the learned JMFC, Rangia dated 30.4.2005 in GR case 553/1999 under section 498A/34 of the IPC acquitting the respondents. 2. Heard Mr ND Sarma, learned counsel for petitioner as also Ms S Jahan, learned Additional Public Prosecutor. 3. Petitioner is the wife of respondent 1. Their marriage was solemnised socially on 16.5.1999. Marriage was registered on 1.10.1998 with the Sadar Kazi. 4. After 4 months of the marital life with respondent 1, petitioner lodged an ejahar with the Kamalpur police station on 27.9.1999 to the effect that after a few days of marriage respondent 1 started to torture her in presence of respondent 2 and 3 and finally drove her out of the matrimonial house by assaulting her and she took shelter in her parental house and later filed the FIR. 5. Based on the said ejahar, Kamalpur PS case 151/1999 under section 498A of the IPC is registered. 6. Respondents faced trial. They denied the charge levelled against them under section 498(A) of the IPC. On conclusion of trial, the learned trial court finding the prosecution failed to prove the charge against the respondents acquitted them by order dated 30.4.2005 in GR case 553/1999. Aggrieved by the said order this revision is filed challenging its legality and validity, among others. 7. Learned counsel appearing for petitioner submits that the learned trial court has not considered the evidence of the victim given before the court, wherein she has implicated all the respondents for perpetrating cruelty and demanding dowry, and said that the finding given by the learned trial court is perverse and liable to be set aside. 8. Heard Ms S Jahan, learned Additional Public Prosecutor, and perused the LCR. 9. On careful examination of the evidence of the petitioner(PW1) and her mother Syeda Khadija Khatoon(PW2) it is found that they have given exactly the same evidence as in the ejahar "that after solemnisation of the marriage of the parties on 16.5.1999, the accused persons started to torture petitioner demanding more dowry and since she could not fulfill the demand she was ousted from their house on 16.9.1999 by respondent 1 demanding Rs 50,000 in cash, a scooter and a TV. 10. 10. It is noted that the petitioner in her cross-examination stated that she has not disclosed about such dowry demand to anybody else in their village and has said that the accused persons did not oust her from their house by assaulting her; rather, they kept her in their house as she was suffering from fever with an undertaking that they will take her to a medical. 11. Indeed, the said assertion of the informant herself "that the accused persons did not oust her from their house by assaulting her" has negated all her crucial allegations made in the FIR "that only because of her inability to pay the dowry she was ousted from their house by assaulting her". 12. Both, PW1 and 2 have nowhere stated the kind of torture, when, how and what type of torture was made on petitioner. So one line statement of both the witnesses relating to dowry demand "that because of inability of petitioner to pay the dowry she was ousted from their house" is not enough to hold "cruelty" within the purview of Section 498(A) of the IPC. 13. Section 498A of the IPC provides as follows. "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 extend 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 drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (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. 9. Extended meaning of cruelty. - (1) Clause (a). - Explanation (a) gives meaning of cruelty. 9. Extended meaning of cruelty. - (1) Clause (a). - Explanation (a) gives meaning of cruelty. The meaning of 'cruelty' for the purposes of this section has to be gathered from the language as found in section 498A and as per that section 'cruelty' means "any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, etc. or harassment to coerce her or any other 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. A new dimension has been given to the concept of cruelty. Explanation to section 498A provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to take grave injury or danger to life, limb or health whether mental or physical of the woman would also amount to cruelty. 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 would also constitute cruelty. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. 'Cruelty' for the purposes of constituting the offence under section 498A need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. (2) Clause (b). - Clause (b) of Explanation to Section 498A enacts that the 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 property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of section 498A. Clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment is not cruelty. Mere demand for property, etc. by itself is also not cruelty. Clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment is not cruelty. Mere demand for property, etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this is made punishable under the section". 14. In the instant case it is evident that petitioner herself has not narrated anything about the nature of injury she sustained; nor has medical evidence been adduced in support of such contention, therefore the matter of assault on the part of the respondents can hardly be said to be established as also about dowry demand. There is no independent witness examined in support of such serious contention. All the allegations are made in a vague manner without detailing the matter of torture or dowry demand. Another pertinent point to be noted is that the parties have consummated their marital life only for four months and during such period how much cruelty has been meted out on the petitioner is a question of fact which is to be substantiated by her. But unfortunately, the petitioner has failed to bring on record any such incident which can be regarded as "cruelty" as envisaged under Section 498A of the IPC. Petitioner also admitted that she has already obtained all streedhan articles that were given to her in the marriage after filing a case under Section 406 of the IPC and thereafter this petition is filed. 15. It is to be noted that though the learned trial court did not discuss in detail the above material on record, the fact remains that there was no other witness except PW1 and 2, and the learned trial court also took note of the fact that PW1 herself has contradicted her own statement during the cross-examination. The court also held that there is no positive evidence that the petitioner was subjected to cruelty by the accused persons in furtherance of achieving their common intention. 16. The court also held that there is no positive evidence that the petitioner was subjected to cruelty by the accused persons in furtherance of achieving their common intention. 16. From the evidence and the material on record the learned trial court held that such evidence on record is not enough to prove the offence under section 498A of the IPC coupled with the fact that there is no explanation for delay given in filing the ejahar. In sum and substance, the learned trial court has refused to act upon the evidence of PW1 and 2 only because of the above reasons. 17. Going through the above material on record I don't find any reason to interfere the order of acquittal passed by the learned trial court. Accordingly the petition is dismissed being devoid of merit. Return the LCR forthwith.