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2018 DIGILAW 1525 (GAU)

Abhijit Borah v. Arpana Rajkumari

2018-10-10

MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. 1. This revision is directed against the judgment and order dated 27.06.2008 passed by learned Sessions Judge, Morigaon in Criminal Appeal No. 30/2007. By the said judgment, learned Sessions Judge dismissing the appeal, upheld the judgment and order passed by the learned Judicial Magistrate, Morigaon in C.R. Case No. 718/2005, whereby, the petitioner was convicted u/s. 498 (A) IPC and sentenced to imprisonment for two years and fine of Rs. 1,000/- with default stipulation. 2. As per prosecution case, the complainant Arpana Rajkumari was married to the petitioner in the month of April 2001. Since after the marriage, the petitioner tortured his wife (the informant), on the pretext, that the articles of dowry given at the time of marriage were of inferior quality. She remained in the matrimonial home tolerating the torture meted out to her and gave birth to a girl child. On 13.01.2005, the petitioner physically assaulted the informant, for which she left the matrimonial home on 14.01.2005 and lodged the complaint. On the basis of the said complaint, learned Magistrate took cognizance and issued process. Eventually, the petitioner stood trial and was convicted u/s. 498 (A) IPC. 3. Learned counsel, Mr. A.J. Saikia for the petitioner and learned Addl. Public Prosecutor, Mr. J.C. Barman for the respondent were heard. 4. Learned counsel for the petitioner submits that the offence of cruelty u/s. 498 (A) IPC was not proved, inasmuch as, the prosecution failed to adduce any legal evidence in order to substantiate such charge. 5. It transpires from the impugned judgment as well as the judgment of the learned trial court, that the prosecution case essentially hinges on the oral testimony of the two witnesses, being the complainant herself (PW 1) and her father (PW 2), inasmuch as, the testimony of the third witness examined by prosecution, was expunged for not offering himself to cross-examination. On appreciation of evidence, learned Judicial Magistrate convicted the petitioner u/s. 498-A IPC and awarded sentence as indicated above. Appeal filed by the petitioner against the judgment of conviction and sentence also stood dismissed. 6. Section 498-A provides that "whoever being a husband or relative of the husband of a woman, subject such woman to cruelty shall be punished. On appreciation of evidence, learned Judicial Magistrate convicted the petitioner u/s. 498-A IPC and awarded sentence as indicated above. Appeal filed by the petitioner against the judgment of conviction and sentence also stood dismissed. 6. Section 498-A provides that "whoever being a husband or relative of the husband of a woman, subject such woman to cruelty shall be punished. The term "cruelty" has been defined in the explanation (a) & (b) appended to Section 498-A IPC as under:- "(a) any wilful 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." 7. As per clause (a) of the explanation, any wilful conduct shall constitute the offence of cruelty if the wilful act done, is of such nature, that (i) it is likely to drive the woman to commit suicide or (ii) to cause grave injury or danger to life or limb. As per clause (b) harassment to woman or her relatives with a view to coerce her to meet the unlawful demand shall constitute the offence of cruelty. 8. It would be apposite at this juncture to have a look at the evidence in order to see whether the evidence brought on record is sufficient to bring home a charge u/s. 498-A IPC. The complainant examining herself as PW 1 stated that on the day of "Aath Mongla", i.e., 8th day after marriage, her husband demanded Rs. 20,000/- to Rs. 30,000/-. Initially the father of the complainant paid Rs. 20,000/-. Again the husband of the complainant demanded Rs. 20,000/- and her father paid Rs. 20,000/-. In spite of such payment, the petitioner was not satisfied and again demanded Rs. 50,000/-. In the month of January, 2003, the father of the complainant paid Rs. 21,000/-. However, the petitioner threatened the informant (PW 1) to set her ablaze by pouring kerosene for not paying the entire amount. 9. 20,000/- and her father paid Rs. 20,000/-. In spite of such payment, the petitioner was not satisfied and again demanded Rs. 50,000/-. In the month of January, 2003, the father of the complainant paid Rs. 21,000/-. However, the petitioner threatened the informant (PW 1) to set her ablaze by pouring kerosene for not paying the entire amount. 9. PW 2, father of the complainant stated that after one year of the marriage in the year 2002, the petitioner demanded Rs. 70,000/- through the complainant and he paid Rs. 60,000/- in three instalments. The above evidence clearly demonstrated that the oral testimony of the PW 1 and PW 2 with regard to demand of money and payment thereof were contradictory and mutually destructive. Though the complainant stated that immediately after 8th day of marriage, the petitioner demanded Rs. 20,000/- to 30,000/- and her father paid initially Rs. 20,000/- and thereafter, the petitioner again demanded an amount of Rs. 20,000/- and the second demand was made in the year 2003 for an amount of Rs. 50,000/-, according to PW 2, demand for money was made after one year of marriage. In view of the above contradictory and mutually destructive oral testimony of PW 1 & PW 2, such evidence with regard to demand of money was hardly worthy of inspiring confidence. 10. Moreover, in the complaint lodged by the wife (alleged victim) there was not even a whisper with regard to any demand of money by the petitioner. In view of the contradictory and mutually destructive evidence of PW 1 & PW 2 before the court and absence of any averment in the complaint with regard to demand of money, the prosecution, can by no stretch of imagination be held to have made out a case of 'cruelty' as defined in clause (b) of the explanation to Section 498-A IPC. 11. Evidently after filing of the suit for divorce by the petitioner, the wife lodge the complaint basically for recovery of her stridhana and initially learned trial court also took cognizance u/s. 403 IPC. In fact, the story of torture or demand of dowry was sought to be introduced while adducing evidence. Except a single incident of alleged physical assault, which was also not substantiated by any medical or other independent evidence, complainant did not adduce any cogent and reliable evidence to prove that she was continuously tortured physically or mentally. In fact, the story of torture or demand of dowry was sought to be introduced while adducing evidence. Except a single incident of alleged physical assault, which was also not substantiated by any medical or other independent evidence, complainant did not adduce any cogent and reliable evidence to prove that she was continuously tortured physically or mentally. Therefore, evidence brought on record apparently fell short of proving any wilful conduct of such grave nature as was likely to drive the complainant to commit suicide or to cause injury or harm to life, limb or health. 12. The offence of "cruelty" having been defined by Section 498-A IPC itself, attributing a specific statutory meaning thereto, it needs to be borne in mind that in order to bring home the offence within the sweep of Section 498-A IPC, prosecution has to establish the act of cruelty as defined in the explanation to the Section 498-A IPC. In absence of evidence to establish the act of cruelty within the meaning of Section 498-A IPC, one or two isolated incident of assault or quarrel or family feud is not sufficient to attract the provision of Section 498-A IPC. What is abundantly clear from the evidence discussed above is that prosecution miserably failed to prove the ingredients of offence u/s. 498-A IPC, and as such, the conviction and sentence of the petitioner is unsustainable. Accordingly, the conviction and sentence of the petitioner is set aside and the criminal revision is allowed. 13. Send back the LCR.