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2019 DIGILAW 246 (GAU)

Harmuz Ali v. State of Assam

2019-02-21

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. The prosecution case in brief is that on 5.8.2004, the informant Mustt. Basatan Bibi lodged an ejahar with the Bogribari P.S to the effect that, she was married with the accused, Md. Hurmuz Ali about three years ago as per the Muslim Custom and law. Sufficient dowry of Rs. 10,000 along with gold ornament was given in the marriage but despite the same her husband Harmuz Ali and all other in-laws (total 6 in Nos.) tortured her physically and mentally. They badly beaten her and forcefully taken away the golden ornaments and misappropriated the money and on 1.8.2004 all the accused-persons by making a conspiracy confined the petitioner in their house and after severely assaulting her causing bodily injury, she was thrown on the road. The said ejahar was registered at the Bogribari PS Case No. 108/04, and investigation was conducted into the case. The investigating officer visited the place of occurrence, draw the sketch map, recorded the statement of the witnesses under section 161, Cr.PC, and finding sufficient material against the accused Hurmuz Ali submitted the charge sheet under section 498A, IPC and the other persons named in the FIR not sent up for trial. 2. The accused faced the trial denied the charge that was framed against him under section 498A, IPC and claimed to be tried. To bring home the charge, prosecution examined 7 witnesses and defence examined none. Plea of defence is of total denial. Statement of accused-person was recorded under section 313, Cr.PC wherein he denied all the allegations. At the conclusion of the trial, the learned trial court held the accused guilty under section 498A, IPC and convicting him under said section of law sentenced him to SI for 6 months and to pay fine of Rs. 500, in default SI for 30 days. The appeal preferred by the accused-petitioner was dismissed, hence, the present petition. 3. I have heard the submission of learned counsel Mr. R. Sharma for the petitioner and Mr. B.J. Dutta, the learned Addl. PP for the State-respondent. 4. I have carefully gone through the impugned judgment and order and the evidence on record. 5. In the instant case, the informant in the FIR has alleged that physical and mental torture on her since after the marriage and also that she has been ousted by the accused-petitioner from his house with such torture. PP for the State-respondent. 4. I have carefully gone through the impugned judgment and order and the evidence on record. 5. In the instant case, the informant in the FIR has alleged that physical and mental torture on her since after the marriage and also that she has been ousted by the accused-petitioner from his house with such torture. But to utter surprise the informant in her evidence has given a very cryptic evidence to the effect that since after two months of the marriage accused-person tortured her physically and mentally demanding dowry and due to physical torture she became senseless and she regained sense in her father's house. She has not narrated any sort of manner, date and time, etc., to disclose the factum of harassment or torture which may constitute cruelty within the purview of section 498A, IPC. In sharp contrast to the allegation made in the FIR, she has not implicated any of the FIR named person in her evidence. In her cross-examination, she has stated that many people gathered at the place of occurrence where she was lying. 6. The other witnesses/PW-2 Hebel Shiekh, PW-3 Bilal Shiekh has stated that about 3 years ago while they were returning home at night they found PW-1 was lying on the side of road and on being informed her mother arrived and took the PW-1 to her house. It is stated that they have heard that the accused-husband tortured her and kept her on the side of the road. It is stated that the informant is related to them being cousin sister. They are not eye witness to the occurrence neither they have stated as to under what circumstances the PW-1 was found injured on the road side nor they have stated anything about the torture upon the PW-1. Both of them are hearsay witness, that too in a vague manner. Similar is the version of PW-4 (Kachira Bewa) mother of the victim, who in her two line statements has stated that after marriage the accused demanded money and she gave him Rs. 10,000 in cash but the accused continued to assault the victim for which she returned within two months of the marriage and thereafter case was filed. After return victim was treated in the hospital. 7. 10,000 in cash but the accused continued to assault the victim for which she returned within two months of the marriage and thereafter case was filed. After return victim was treated in the hospital. 7. Such a statement of the victim coupled with the testimony of other witnesses as discussed above which is not only inconsistent with each other but also failed to substantiate the serious allegation alleged in the FIR. The very basis of a criminal proceeding is the FIR and the entire exercise in a trial, is carried out, to substantiate the allegation in the FIR as to whether there is any legal evidence in support of the offence alleged. Of course, the FIR is not encyclopaedia of all the matters and it may be a small description of the entire incident, but sum and substance of the FIR is to be brought on record. The matrimonial offence of course is a serious phenomena but needless to say it has to be proved in due manner by legal evidence which can inspire confidence into the mind of the court so as to sustain conviction. From the evidence on record, it reveals that the testimony of the victim herself is far below the requisite standard of proof that required to make out an offence under section 498A of IPC. In the given circumstances, the evidence of MO/PW-6 who happened to examine the victim on 2.8.2004 and found simple injury over the back, cheek and thigh is of no help to the prosecution, as because neither such medical report supported any sort of serious injury on the person of the victim/PW-1 nor the victim herself stated about injury in the incident. 8. Similarly the evidence of PW-5 Salimuddin Ahmed scribe of the FIR is of no consequence as the content of FIR is not at all proved by the evidence on record. The IO/PW-7 has simply stated about the investigation on receipt of the FIR and filing of charge sheet. He has also stated that delay in filing the case is not explained in the FIR and the content of the ejahar is also not stated by the witnesses in their statement under section 161, Cr.PC. The IO/PW-7 has simply stated about the investigation on receipt of the FIR and filing of charge sheet. He has also stated that delay in filing the case is not explained in the FIR and the content of the ejahar is also not stated by the witnesses in their statement under section 161, Cr.PC. Section 498A, IPC read as: 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 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. In order to bring home the charge, the prosecution has to prove the following ingredients:— (i) The woman must be married. (ii) She must be subjected to cruelty or harassment; and such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband. The word cruelty as per section 498A, IPC means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to grave injury or danger to life, etc., or harassment to coerce her or any other person related to her to meet any unlawful demand. Explanation to section 498A, IPC provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide. In this case, there is no evidence that the woman attempted to commit suicide. So the first part of the definition of cruelty is lacking in this case. Explanation to section 498A, IPC provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide. In this case, there is no evidence that the woman attempted to commit suicide. So the first part of the definition of cruelty is lacking in this case. The second part of the meaning of the cruelty is that 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. 9. From the scrutiny of the impugned judgment as discussed above, it is to be noted in the present case that the learned trial court as well as the appellate court miserably failed to appreciate the evidence in proper perspective of law as well as facts which has culminated into a gross illegality while arriving at the guilt of the accused. As discussed above, the charge is not at all proved beyond all reasonable doubt and only on some reference of incident with the FIR and uttering of words “harassment” by the accused cannot ipso facto make out an offence of cruelty as has been defined under section 498A. The very basis of prosecution that is, the FIR is not at all substantiated and the evidence on record is totally inconsistent, and unconvincing to rely. The learned Court below has relied upon such evidence without application of mind and the impugned judgment and order needs interference which is bad in law. 10. Resultantly, impugned judgment and order dated 6.11.2009 passed by the learned Sessions Judge, Dhubri in CA No. 16(3)/08 is hereby quashed and set aside. The accused is set at liberty forthwith. Return the LCR.