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2018 DIGILAW 800 (GAU)

Md. Amjat Ali v. State of Assam`

2018-05-15

AJIT BORTHAKUR

body2018
JUDGMENT : Ajit Borthakur, J. 1. This Criminal Revision petition under Sections 397/401 Cr.P.C. is preferred against the judgment and order, dated 29.11.2008, passed by the learned Sessions Judge, Darrang at Mangaldai, Assam in Criminal Appeal No. 3 (D- 1) of 2008, whereby the judgment and order, dated 29.12.2007, passed by the learned Judicial Magistrate, 1st Class at Udalguri in G.R. Case No. 422/2006, convicted the accused petitioners under Section 498A/34 IPC and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 1000/- each, in default of fine to undergo simple imprisonment for one month, has been upheld. 2. The petitioners' case, in a nutshell, is that one Banecha Khatoon, the wife of the petitioner No. 2 lodged an FIR, on 28.08.2006, with the in-charge of Kharupetia Police Out Post alleging, inter-alia, that she was subjected to cruelty by the petitioners, on demand for dowry. Based on the said FIR, Kharupetia G.D. Entry No. 771, dated 29.08.2006, was made and on being forwarded registered as Dalgaon P.S. Case No. 296/2006. The case was investigated and finally charge-sheet was submitted, on 30.10.2006, vide Dalgaon P.S. Charge-Sheet No. 181/2006 under Section 498A/34 IPC, whereupon G.R. Case No. 422/2006 was registered in the Court of learned Sub-Divisional Judicial Magistrate (M) at Udalguri and trial was held in the Court of learned Judicial Magistrate, 1st Class at Udalguri. Charge was framed and read over to the accused petitioners, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined 5 (five) witnesses, but the defence examined none. Thereafter, the statements of the accused petitioners were recorded under Section 313 Cr.P.C., wherein, they pleaded innocent and declined to examine any witness in defence. 3. After conclusion of trial of the case, the learned Judicial Magistrate, 1st Class, Udalguri held the accused petitioners guilty of the charge and accordingly convicted them and sentenced as stated above. Being aggrieved, the accused petitioners preferred an appeal in the Court of learned Sessions Judge, Darrang at Mangaldai, being Criminal Appeal No. 3 (D-1)/2008, wherein the conviction and sentence passed by the learned Magistrate was upheld. 4. Being aggrieved, the accused petitioners preferred an appeal in the Court of learned Sessions Judge, Darrang at Mangaldai, being Criminal Appeal No. 3 (D-1)/2008, wherein the conviction and sentence passed by the learned Magistrate was upheld. 4. Now, by the instant criminal revision, the accused petitioners have challenged the legality and correctness of the impugned judgments and orders, passed by the learned Courts below, on the grounds, inter-alia, that the ingredients constituting the offence under Section 498A/34 IPC are not established and that the evidence on record was not appreciated from proper perspective. 5. Mr. H. Ali, learned counsel for the accused petitioners, submits that prosecution has utterly failed to establish that the victim was subjected to cruelty in any form. Mr. Ali submits that the victim in her evidence did not make any specific allegation against her husband, the petitioner No. 2 except that he assaulted her and attempted to kill her by sprinkling Kerosene oil on her body. According to Mr. Ali, the learned counsel for the accused petitioners, the alleged victim has also not made any specific allegation of cruelty against the accused petitioner No. 1, that is, her father-in-law except making an omnibus statement against him and so also against the accused petitioner No. 3, the Mother-in-law, who assaulted her, on 28.08.2006. Mr. Ali further submits that except PW. 2, the Gaonbura of the village, the remaining non-official witnesses are closely related to each other. Mr. Ali also submits that the victim woman by swearing an affidavit, on 18.12.2012, before the Notary, Darrang at Mangaldai declared that on the intervention of the local Gaonbura and villagers, their disputes were resolved by way of her (the victim) effecting talaque. 6. Per contra, Mr. B. Gogoi, learned Addl. PP appearing for the State respondent, submits that the evidence led by the prosecution side is consistent and convincing enough towards the guilt of the accused petitioners satisfying the essential ingredients of the offence of cruelty provided in Section 498 A IPC. Mr. Gogoi further submits that the affidavit, dated 18.12.2012, allegedly sworn by the victim reinforces the prosecution's consistent contention that the victim was the legally married wife of the accused petitioner No. 2 and that she was subjected to cruelty, on demand for dowry, during subsistence of their conjugal relation, which drove away her to take shelter at her father's home. Mr. Mr. Gogoi, therefore, submits that no interference is called for in the impugned concurrent findings of the learned Courts below. 7. Be it mentioned here that the object of Section 498A IPC is to curb the vice of 'cruelty' defined in the Section itself, to the married woman by her husband or in-laws. In Girdhar Shankar Tawade vs. State of Maharashtra, (2002) 5 SCC 177 , the Supreme Court held that 'cruelty' has to be understood having a specific statutory meaning provided in Section 498A and there should be a case of continuous State of affairs of torture by one to another, with a view to causing her to meet any unlawful demand. In S. Hanumantha Rao vs. S. Ramani, (1993) 3 SCC 620, the Apex Court held that mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party, who has committed wrong is not expected to live with the other party. 8. In the instant case, it appears from the FIR lodged by the victim woman PW. 1 Banesha Begum that during the period about 1 1/2 years of her marriage with the accused petitioner No. 2 Hasmat Ali, the accused petitioner No. 1 Amjat Ali, the father-in-law, accused petitioner No. 3, Hasna Banu, the mother-in-law and her husband subjected her to continuous cruelty, mental and physical, on demand for dowry, which was of grave in nature, wherein, the neighbors had also intervened on a number of occasions. In evidence PW. 1, the victim, has supported the allegations of perpetration of cruelty, mental and physical, on her, on demand for dowry, after lapse of about three months of her marriage. She has specifically mentioned that on 27.08.2006, her husband Hasmat made an attempt to kill her by sprinkling kerosene oil and on the following day, the accused petitioner No. 3 assaulted her with 'lathi' for which she had to take treatment at Kharupetia Hospital and in consequence, finding no alternative returned to her parental home. In cross-examination, the defence appears to have not disputed those specific allegations. 9. PW. 2 Suraj Jamal is the Govt. Village Headman and as such, is the impartial and independent witness in the case. In cross-examination, the defence appears to have not disputed those specific allegations. 9. PW. 2 Suraj Jamal is the Govt. Village Headman and as such, is the impartial and independent witness in the case. Although he could not say the reasons behind, deposed that after lapse of about one year of marriage, Hasmat started assaulting his wife (P.W.-1) and as reported by P.W.-1, the accused petitioners demanded some articles. According to him (P.W.-2), later on her uncle took P.W.-1 away to her parental home. It is further noticed that P.W.-3 Banu Mandal, the father of the victim (P.W.-1), has corroborated the evidence of P.Ws 1 and 2 and he appears to have firmly withstood his evidence, tendered in examination in-chief, in his cross-examination. Their evidence is further corroborated by P.W.-4 Khudeja Begum, an adjacent resident, who deposed that she had seen breaking out of frequent quarrels between both the parties and on 27th, midnight, and on the following day, morning, saw the accused petitioner No. 3 assaulting the victim (P.W.-1) with stick and thereafter, the villagers intervened and shifted her (P.W.-1) to hospital for medical treatment. The defence appears to have not cross-examined her (P.W.-4) with specific reference to the evidence of alleged cruelty meted out to her, except eliciting that she (P.W.-1) is her nephew. Perusal of the evidence of P.W.-5 ASI Naren Deka, the investigating officer, it appears that no material facts or any contradictions with the statements of P.Ws recorded under Section 161 Cr.P.C. has been elicited by way of cross-examining him. The plea of the accused petitioners as recorded in their statements under Section 313 Cr.P.C. is simply denial of the prosecution case, but adduced no evidence in their defence. Therefore, this Court is of the considered view that there is consistent and convincing evidence led by the prosecution establishing beyond reasonable doubt that the accused petitioners No. 2 and 3, the husband and mother-in-law respectively, in fact, subjected P.W.-1, the informant-victim woman to aggravated form of physical and mental cruelty, continuously, on their illegal demand being remained unfulfilled, drawing the villagers and the victim's relatives to rescue her from the turbulent matrimonial home and to facilitate her to go back to her parental home. The credibility of testimony of the related PWs is established by the very fact that they have firmly withstood the cross-examination of the defence and no animus is shown and more particularly even the impartial evidence of govt. Gaonburah corroborated their evidence. 10. There is no satisfactory consistent and convincing evidence implicating the accused petitioner No. 1 Amjat Ali, the father-in-law of the victim woman (P.W.-1) beyond reasonable doubt and as such, in the opinion of this Court, he is entitled to be acquitted of the charge on benefit of doubt and accordingly, his conviction and sentence passed by the learned Courts below is set aside and set him liberty. 11. The impugned judgment and orders of conviction and sentence passed against the accused petitioner Nos. 2 and 3 are affirmed. 12. The accused petitioner Nos. 2 and 3, namely, Hasmat Ali and Hasna Banu respectively shall surrender before the Court of learned Chief Judicial Magistrate, Udalguri to serve out the sentence, if not already undergone. Accordingly, the revision stands partly allowed. Send back the LCR along with a copy of this judgment and order.