Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 763 (GAU)

HIREN HALOI v. STATE OF ASSAM

2018-05-09

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. These two criminal revision petitions, being Criminal Revision Petition No. 316/2009 and Criminal Revision Petition No. 309/2009, are taken up together for disposal as both the revision petitions have arisen out of the same judgment, passed by the learned Judicial Magistrate 1st Class, Kamrup (M), Guwahati, in CR Case No. 2402c/2003, convicting and sentencing the accused-revision petitioners to rigorous imprisonment for 2 years each, and to pay a fine of Rs. 2,000/- each, with a default clause, which was upheld by the learned Additional Sessions Judge (FTC) No. 3, Kamrup (M), in Criminal Appeal No. 47/2007. 2. The fact leading to the Complaint Case No.2402c/2003 is that, the complainant/ respondent No. 2, got married with the accused-revision petitioner Hiren Haloi, on 27.4.2001, and since the very first day of their conjugal life, her accused-husband meted out inhuman torture on her person and even she was sexually harassed. Thereafter, the accused persons/present revision petitioners started demanding dowry from her and her widowed mother, and the complainant had to give an amount of Rs. 50,000/- and one gas cylinder with stove to her accused-husband on various dates. Even thereafter, there was a demand for Rs. 1,50,000/-, which she could not satisfy, and therefore torture on her person was increased day by day. Since 18.2.2003, the complainant/respondent No. 2 has been staying in her parental home and her accused-husband/revision petitioner kept demanding money from her over telephone during her stay in parental home. She was also subjected to threatening on various dates as indicated in the complaint petition itself. 3. On the basis of the aforesaid complaint, the learned trial court had taken cognizance against the accused-revision petitioner and another of offences under Sections 498 (A) /325/354/406/506/34 of the IPC. 4. After exhausting all the required legal formalities, learned trial court framed a formal charge against the accused-petitioner under Section 498 (A) /406 IPC. 5. During trial, the complainant/respondent No. 2, examined 4 (four) witnesses who were subjected to cross-examine by the defence. 6. After closure of the prosecution evidence, statements of the accused-revision petitioners were recorded under Section 313 of the Cr.PC and in their such statements, they are heard denying the allegations made against them. 7. The defence examined 2 (two) witnesses in its support. 8. 6. After closure of the prosecution evidence, statements of the accused-revision petitioners were recorded under Section 313 of the Cr.PC and in their such statements, they are heard denying the allegations made against them. 7. The defence examined 2 (two) witnesses in its support. 8. The learned trial court, after hearing both sides and on perusal of the materials on record including the evidence, convicted and sentenced the accused-revision petitioners as indicated above. 9. I have heard Mr. B.M. Choudhury and Mr. A.K. Bhuyan, learned counsel for the accused-revision petitioners. I have also heard Mr. B. Sarma, learned Additional Public Prosecutor for the state respondent. 10. I have also scanned the records of the learned trial court including the evidence available therein. 11. The evidence of the prosecution witnesses, in respect of the accused-revision petitioners, Dipu Haloi and Smti Padma Haloi, is that they assaulted the victim/PW1, but there was no allegation of any demand of dowry or demand of any money against them raised in the evidence by the prosecution witnesses. Therefore, to bring home the offence alleged under Section 498 (A) of the IPC "cruelty" has to be proved as defined in the Section 498 (A) of the IPC itself. But, the evidence led by the prosecution witnesses is such that none of the ingredients, as defined in the term "cruelty" in the said provision of law has been there. That being so, there is no materials against the accused-revision petitioners, Dipu Haloi and Smti Padma Haloi. 12. The accused-revision petitioner, Gajen Haloi, expired during the pendency of the revision petition on 20.2.2017 and to that effect, a certificate has been produced by the learned counsel for the revision petitioners during the course of hearing of this matter. 13. That being so, this court has decided not to proceed, on merit, in respect of accused-revision petitioner, Gajen Haloi (since expired). 14. So far the accused-revision petitioner, Hiren Haloi is concerned, there are some statement in the evidence of the PW1 to the fact that she was subjected to torture since the day of her marriage with him and even on several occasions, money was demanded from her and she also paid Rs. 65,000/- at different times obtaining the said amount from her mother. 15. 65,000/- at different times obtaining the said amount from her mother. 15. Before entering into the merit of such evidence as well as corroboration of such evidence by the other witnesses to find out whether he had committed the offences alleged or not, this court likes to take up another issue which has been raised by the learned counsel for the revision petitioners to the effect that, immediately on the next day of the date of occurrence, i.e. on 26.1.2003, an FIR was lodged by the present respondent No. 1/victim with the Noonmati Police Station, which was entered in the General Diary, being GD Entry No. 1096, dated 26.1.2003. The occurrence in the instant case took place on 25.1.2003. After disposal of the case by the learned trial court, convicting the accused-revision petitioners, an appeal was preferred before the learned Sessions Judge, vide Criminal Appeal No. 47/2007, wherein, an application was made by the accused-revision petitioners requesting for calling of the records in respect of the aforesaid GD Entry to impress upon the court that two parallel proceedings cannot go together on the same alleged offence. The said petition was rejected by the learned trial court which has now been raised by the learned counsel for the revision petitioners before this court. In Criminal Revision Petition 3016/2009, in page-60, the copy of the aforesaid GD Entry has been furnished by the revision petitioners which clearly shows that an FIR was lodged with the Noonmati Police Station at 11:00 am on 26.1.2003, which was entered in the General Diary vide the aforesaid entry. It appears from the GD Entry that both the parties settled the matter with the help of the local people saying that there would not be quarrel between them in future. 16. On perusal of the copy of the complaint petition, filed by the victim/PW1 in the court, on the basis of which the Complaint Case No. 2404c/2003 was proceeded with, makes it appear that the date of the occurrence, as indicated in the complaint, and as reflected in the GD Entry, referred to above, is one and the same. Therefore, it clearly appears that out of the same occurrence there was an FIR as well as the instant complaint. Therefore, it clearly appears that out of the same occurrence there was an FIR as well as the instant complaint. The learned trial court, by rejecting the prayer to permit to lead additional evidence on this aspect, appears to have missed the legal position that on the same facts there cannot be two cases simultaneously. 17. That being so, in the considered view of this court, even without dealing with the merit of the case, on the basis of the evidence on record, on this count alone, the judgments and orders passed by the learned courts below, need to be set aside as the valuable legal right to adduce additional evidence, that too, in a fact existed since before the complaint, but came to the notice of the revision-petitioners after disposal of the complaint and during the pendency of the appeal before the learned Additional Sessions Judge. It is a settled law that an interlocutory order affecting the merit of the case can be agitated in the revision or appeal. 18. Accordingly, the judgments and orders of the learned trial court as well as the appellate court, aforesaid, are set aside. 19. Both the revision petitions stand disposed of accordingly. 20. Send down the LCR along with the copy of this judgment.