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2019 DIGILAW 608 (GAU)

Md. Guljar Hussain v. State of Assam

2019-05-16

HITESH KUMAR SARMA

body2019
JUDGMENT : 1. This criminal revision petition is filed under Sections 397/401 read with Section 482 Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 31.3.2009, passed by the learned Additional Sessions Judge (FTC), Sonitpur, Tezpur, in Criminal Appeal No. 2(B-3)/2008, affirming the order of conviction passed by the learned Chief Judicial Magistrate, Sonitpur, vide judgment dated 20.1.2008, passed in GR Case No. 202/2005 and sentencing him to undergo simple imprisonment for 1 year and to pay a fine of Rs. 1,000/- with a default clause. 2. I have perused the record of the learned trial court including the evidence of the witnesses as well as both the impugned judgments of the learned courts below. 3. I have also heard Mr. K. Sarma, learned counsel for the revision petitioner as well as Mr. R.J. Baruah, learned Additional Public Prosecutor for the state respondent. 4. The fact of the case is that, on the basis of an FIR lodged by PW1, Mofida Begum, who is the wife of the revision petitioner, alleging, inter-alia, that after about 6 months of her marriage with the revision petitioner, she was subjected to torture by the revision petitioner and his parents on the ground that she failed to meet the unlawful demand of dowry of Rs. 20,000/- to be invested by the revision petitioner in his business. Ultimately, she was driven out after assaulting while she was carrying 6 months pregnancy. She, then, took refuge in her parental house. 5. After exhausting all the required legal formalities, and on conclusion of the trial, the learned trial court convicted the revision petitioner, as indicated above, and on appeal, the learned Additional Sessions Judge (FTC), Sonitpur, affirmed the judgment of the learned trial court. 6. The evidence of 5 (five) witnesses including the investigating officer has been examined by this court. 7. The learned counsel for the revision petitioner has submitted that there is no evidence to substantiate the charge against the revision petitioner under Section 498(A) IPC, particularly when the independent witness examined as PW4 did not support the version of the informant/PW1/victim. 8. This court has noticed that the learned court below convicted the revision petitioner/husband of the informant and acquitted the mother of the revision petitioner from the charge on the basis of the evidence on record. 9. 8. This court has noticed that the learned court below convicted the revision petitioner/husband of the informant and acquitted the mother of the revision petitioner from the charge on the basis of the evidence on record. 9. The evidence of PW1/victim, on scrutiny, makes it appears that she was subjected to torture due to failure on her part to meet the unlawful demand of dowry of Rs. 20,000/- by the revision petitioner for purchasing of a motorbike. But, in her FIR, marked Ext.1, she stated that the demand was for the purpose of investment of the amount in his business. But, in her evidence on oath, before the learned court below, she has categorically stated that her husband/revision petitioner is a carpenter and there is no evidence that he was doing any other business. Therefore, the fact that the husband/revision petitioner required the allegedly demanded amount for the purpose of investment in the business appears to be not backed by the evidence on record. The evidence of PW4, who is the independent witness, is heard saying in his evidence that he is a neighbor of the informant and the revision petitioner and is in the visiting terms with them. He heard about the fact that quarrel took place between them but, about the demand of money he appears to be totally silent, hence not supported the evidence of PW1/victim. The evidence of PW2 and PW3 appears to be not on the allegation of demand of money. Both of them spoke about the village mell convened for the purpose of settlement of the dispute between the victim/PW1 and her husband/revision petitioner. The entire facts of the case, as come out from the evidence on record, speaks of quarrel between the victim/PW1 and her husband/revision petitioner. In respect of demand of money evidence is not so specific enabling this court to hold that there was such a demand. But, the evidence of the victim clearly shows that while she was carrying 6 months pregnancy, she was assaulted and driven out and this fact remains unassailed even during her cross-examination. As regards the quarrel there is evidence of PW2 and PW3, and the defence, although cross-examined, could not discard their such evidence and rather made some suggestions without being substantiated and that suggestions cannot take the place of evidence unless the same is substantiated by adducing evidence. 10. As regards the quarrel there is evidence of PW2 and PW3, and the defence, although cross-examined, could not discard their such evidence and rather made some suggestions without being substantiated and that suggestions cannot take the place of evidence unless the same is substantiated by adducing evidence. 10. Therefore, in the considered view of this court, on the basis of evidence on record, this court is handicapped to hold that there is an offence committed by the revision petitioner under Section 498(A) IPC. But, there is sufficient evidence to establish that the victim/PW1 was assaulted by the revision petitioner inviting an offence under Section 323 IPC, and therefore, necessitating his conviction for offence under Section 323 IPC. 11. This court is aware of the fact that in view of the concurrent findings of the facts by both the courts below there is very less scope for this court to interfere with the findings recorded on facts. However, if at the face of the record, the appreciation of the fact is not based on evidence on record, then this court can interfere with such appreciation. As discussed above, the learned courts below did not convict the revision petitioner under Section 323 IPC on the basis of correct appreciation of evidence on record and the appreciation was recorded by the learned courts below is glaringly inconsistent with the evidence on record. That being so, the order of conviction recorded by the learned courts below under Section 498(A) IPC is set aside. 12. However, in view of the findings recorded by this court, the revision petitioner is convicted and sentenced to pay a fine of Rs. 1,000/- and in default, simple imprisonment for 1 month, for offence under Section 323 IPC. 13. With the above modification, the revision petition is partly allowed. 14. The revision petitioner is directed to surrender before the learned court below within 1 (one) month from today to serve out the sentence. 15. Send down the LCR along with a copy of this judgment.