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2018 DIGILAW 230 (GAU)

Sabitri Das v. State of Assam

2018-02-07

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. Heard learned counsel, Mr. A.K. Bhuyan for the appellants and learned Addl. Public Prosecutor, Ms. S. Jahan for the State. 2. This appeal is directed against the judgment and order dated 13.3.2009 passed by learned Addl. Sessions Judge (FTC) No. 3, Kamrup in Sessions Case No. 17 (K) /2006, whereby the accused/appellant was convicted u/s 498 (A) IPC. Learned Addl. Sessions Judge awarded sentence of simple imprisonment for six months and fine of Rs. 1,000/- with default stipulation to the appellant Sabitri Das and rigorous imprisonment for three years and fine of Rs. 5,000/- with default stipulation to the appellant Ashwani Das. 3. As per prosecution case, the victim was married to the appellant Ashwani Das about 6/7 months prior to the occurrence. The victim was subjected to physical torture by accused/appellant Ashwani Das, his brother Rinku Das, Jatin Das and Bhanti Das. On 18/12/99, all the above named persons set the victim ablaze after fastening her by hands and legs and consequently, she sustained severe burn injury. An FIR was lodged by the mother of the victim on the basis of which, the police registered a case, being Sualkuchi PS Case No. 71/99 u/s 498 (A) IPC. After three days of the occurrence, the victim succumbed to the burn injuries, and as such, section 302 IPC was added. After completion of investigation, charge-sheet was filed against the accused/appellants u/s 302/34 IPC and eventually the accused/appellants stood trial for offence u/s 302 read with section 34 IPC. 4. In course of trial, charge was framed u/s 302/34 IP C against both the appellants, to which they pleaded not guilty. Seven witnesses were examined by the prosecution to establish the charge against the accused/appellants. The accused persons also examined two witnesses in their defence. Learned trial court acquitted the accused appellants of the charge u/s 302 IPC. However, the learned trial court convicted them u/s 498 A IPC. 5. Aggrieved by the judgment of conviction and sentence the appellants preferred the instant appeal. 6. I have considered the submission made by the learned counsel for the parties and also the evidence and materials brought on record. 7. Out of the seven witnesses examined by the prosecution, PW 5 was the doctor, who conducted the post mortem examination on the body of the victim and PW 6 & PW 7 were the investigating officers. 6. I have considered the submission made by the learned counsel for the parties and also the evidence and materials brought on record. 7. Out of the seven witnesses examined by the prosecution, PW 5 was the doctor, who conducted the post mortem examination on the body of the victim and PW 6 & PW 7 were the investigating officers. According to the doctor (PW 5), death of the victim was due to shock resulting from ante mortem burn injury. Death of the victim due to burn injury has not been disputed. 8. PW 2 one Rita Das stated that she had no knowledge as to how the victim died. According to her, she came to know about the death of the victim from the villagers. PW 3 stated that hearing hue and cry in the house of appellant Ashwani Das, he came out and on enquiry could know that the victim Sewali sustained burn injury. Immediately he went to the house of the accused and found that the victim was taken to hospital. This two witnesses were declared hostile. 9. PW 4 stated, that having come to know from his wife that there was hue and cry in the house of the accused appellants, he went there and found the victim lying with burn injury. He also stated that there was no social marriage between the appellant Ashwani and the victim. According to him, except trivial quarrel between them, they were pulling on normally. He stated that the victim eloped with the accused Ashwani against the will of the members of her family. Although she went back to her aunts house, they mis-behaved her and driven her out from their house. He also stated that he had no knowledge if the victim had committed suicide. 10. Although it is the settled law that the testimony of the hostile witness does not get washed off, merely because of being declared hostile and the testimony of such witnesses can very well be used along with other evidence, if found to be reliable. Perusal of the testimony of PW 2 & PW 3 shows that nothing material could be elicited during cross-examination in support of the prosecution case, and as such, the evidence of PW 2, PW 3 and PW 4 is of no help to the prosecution as they had not stated anything attributing culpability of the victim. 11. Perusal of the testimony of PW 2 & PW 3 shows that nothing material could be elicited during cross-examination in support of the prosecution case, and as such, the evidence of PW 2, PW 3 and PW 4 is of no help to the prosecution as they had not stated anything attributing culpability of the victim. 11. After having considered the testimony of PW 2, PW 3 and PW 4, this court is left with the lone testimony of PW 1, being the mother of the victim. PW 1 had stated in her evidence, that accused/appellants as well as Rinku Das, Jatin Das and Bhanti Das fastened the victim by her hands and legs, pour kerosene on her body and set her ablaze. From her cross-examination and the testimony of the investigating officer, it appears that she did not make such statement before the Investigating Officer. It was elicited from her statement that from the day of marriage till her death, the victim was in the house of the accused for about six months and during this period, PW 1 never visited the victim. She also stated that though father of the victim was alive, he did not participate in the marriage of the victim. What is evident from the testimony of this witness is that she had deposed as if she had witnessed the accused and other family members setting fire to the victim, but from her cross-examination, it is abundantly clear that she was not an eye witness. Interestingly she did not make such statement before the police u/s 161 Cr.P.C. This being the position, PW 1 does not appear to be trustworthy and reliable witness and therefore, no credibility can be attached to the testimony of this witness (PW 1). Once the testimony of the PW 1 is discarded, the prosecution is left with absolutely no legal evidence to support a charge u/s 498 A IPC. 12. Thus, the evidence adduced by the prosecution, as discussed hereinabove, speaks loud and clear that there was no incriminating material to justify conviction of the accused/appellants u/s 498 A IPC. It is also to be noted that the charge was framed against the accused/appellant u/s 302 which remained unsubstantiated and the learned trial court convicted the appellants u/s 498A, although there was no charge u/s 498-A IPC. It is also to be noted that the charge was framed against the accused/appellant u/s 302 which remained unsubstantiated and the learned trial court convicted the appellants u/s 498A, although there was no charge u/s 498-A IPC. In absence of charge u/s 498-A in the present case, the appellant could not have been convicted u/s 498-A IPC even by aid of section 222 Cr.P.C. 13. Be that as it may, when prosecution has not been able to adduce any evidence to prove the charge against the accused/appellants u/s 498 A IPC, the conviction and sentence of the accused/appellants cannot be sustained. Accordingly, the appeal is allowed and the conviction and sentence of the accused/appellants is set aside. 14. Bail bond if any stands discharged. 15. Send back the LCR.