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2019 DIGILAW 756 (GAU)

Umesh Deka v. State of Assam

2019-06-17

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. Present revision is preferred against the judgment and order dated 25.02.2010, passed by the learned Session Judge, Darrang, Mongoldoi, in Criminal Appeal No. 23(D-4)/2009, affirming the judgment and order dated 10.09.2009, passed by the learned Judicial Magistrate 1st Class, Darrang, Mangaldai, in GR Case No.901/2008, whereby the present accused person was convicted under Section 498(A) of IPC and sentenced to undergo simple imprisonment for four months and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for four day. 2. I have heard Mr. U Choudhury, learned amicus curiae and Mr. PS Lahkar, learned Additional Public Prosecutor, Assam, for the State respondent. 3. Briefly stated the prosecution case is that, the respondent wife (wife of the petitioner) lodged a complaint before the court on 28.08.2008 with the allegation that she was married to the present petitioner on 10.10.1998 and was blessed with a child on 26.11.1999, however, the accused petitioner tortured her by demanding dowry from her. It was alleged that due to non- fulfilment of such dowry demand, she was assaulted and her husband/ petitioner also did not bear the expenses of the child. She was residing in a rented house, but the accused petitioner avoided her and ultimately having no other option she began to reside at Sipajhar separately, but the accused-petitioner did not bother to take care of the child and the respondent/wife. The said complaint was forwarded to Officer-in-Charge, Sipajhar and the same was registered as Sipajhar Police Station Case No. 202/2008, under Section 498(A)/406 IPC. 4. The accused-petitioner faced the trial, denied the charge that was framed against him under Section 498(A) and 406 IPC. The plea of defence is of total denial. To bring home the charge, prosecution examined as many as seven witnesses and defence examined none. 5. At the conclusion of the trial, the learned trial court held the accused-petitioner guilty under Section 498(A) and sentenced him as aforesaid. The appeal, so preferred, also failed and hence the present petition. 6. The plea of defence is of total denial. To bring home the charge, prosecution examined as many as seven witnesses and defence examined none. 5. At the conclusion of the trial, the learned trial court held the accused-petitioner guilty under Section 498(A) and sentenced him as aforesaid. The appeal, so preferred, also failed and hence the present petition. 6. The learned Amicus Curiae has drawn attention of this Court to the complaint petition as well as the testimony on record and submitted that the prosecution evidence is not at all sufficient to bring home the charge against the accused-petitioner under Section 498(A) and the respondent/wife, except raising certain vague allegation, has failed to prove any such incident, which can be termed as cruelty within the purview of Section 498(A) of the IPC and has submitted that both the judgment and orders of the learned court below are bad in law for non-appreciation of evidence, therefore, liable to be quashed and set aside. 7. I have also heard the submission of learned counsel for the State respondent. 8. It is discernible that the complainant/respondent filed the case after 10/11 years of their marriage and her evidence even before the court is quite dissimilar from the story depicted in the complainant petition, which was converted into an FIR. In her complainant petition, the basic grievance was that the accused-petitioner, who is an employee of Sahara Bank, used to demand money from her and for failing to fulfil such demand, she was tortured. On comparison of both the complaint petition and her evidence during trial, it is seen that she nowhere narrated the date, time and manner etc. as to how she was tortured and the conduct of the accused-petitioner. Her evidence is vague as it does not narrate a single instance about the torture. A vague statement has been made by her regarding demand of Rs.50,000/- by her husband, but no such clear picture is made out. She has also stated that she was staying in a rented house at Mangaldai in connection with her job and her husband works in Guwahati and also reside there. Her evidence is so cryptic as regard the conduct of the present petitioner, which cannot be construed as a physical and mental torture by the accused person. She has also stated that she was staying in a rented house at Mangaldai in connection with her job and her husband works in Guwahati and also reside there. Her evidence is so cryptic as regard the conduct of the present petitioner, which cannot be construed as a physical and mental torture by the accused person. No any medical evidence is produced in support of her physical torture, Her witness from PW-2 to PW6 have simply stated that the accused-petitioner stayed apart from his wife and the complainant/respondent No.2 has stated before them that the accused assaulted her by demanding money. Their evidences are also silent about the nature of torture etc. 9. So far as the allegation is concerned it has surfaced that the respondent/wife was residing separately in Mangaldai in connection with a job. In the meantime, the accusedpetitioner also married another women and he did not return the articles given to her in the marriage. The evidence of PW-7, Investigating Officer is of routine in nature, who has simply register the case and submitted charge-sheet against the accused person. 10. From the totality of the evidence on record there appears absolutely no evidence on record with regard to the torture and harassment on the part of the accused-petitioner. of course, there is an allegation of second marriage by the accused-petitioner, which is a different issue and such a conduct of second marriage may not amount to cruelty under the provision of law. The demand of dowry of Rs.50,000/-, as stated by PW-1 in the complaint, nobody supported her version. It is a settled law that such a demand must be coupled with the matter of torture and simply a matter of demand will not amount to cruelty. 11. For the purpose of cruelty under Section 498(A) of the IPC, the offence has to be proved beyond all reasonable doubt. Section 498(A) of the IPC with explanation-A and B reads as follows: "[498A. 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 be liable to fine. 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 be liable to fine. Explanation.-For the purpose of this section, "cruelty" means- (a) any wilful 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.]" 12. To bring home the charge under Section 498(A) of the IPC, i.e. cruelty, it is necessary that all such ingredients are to be proved. Cruelty under the law has been defined as any wilful 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 such a 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, which is not at all available in the present case. 13. Apparently, the learned trial court as well as the learned appellate court has failed to appreciate the facts as well as law while affirming the guilt of the accused-petitioner. Appreciation of evidence is a matter of prudence, lack of which may recall miscarriage of justice. It is stated that the parties entered into a marriage in the year 1998 and the complaint was filed in the year 2008 and in between there is no serious episode, which can be termed as cruelty within the purview of law. More apparently the words "dowry demand" are not enough to prove the guilt under the law. It is stated that the parties entered into a marriage in the year 1998 and the complaint was filed in the year 2008 and in between there is no serious episode, which can be termed as cruelty within the purview of law. More apparently the words "dowry demand" are not enough to prove the guilt under the law. Cruelty, under Section 498(A) of the IPC, has a higher pedestal then that a simple wear and tear of married life. 14. In view of all above, the impugned judgments and orders passed by the trial court as well as the learned appellate court are not sustainable in law. Accordingly the same are set aside and quashed. The petitioner is hereby acquitted and set at liberty forthwith. 15. Appreciating the assistance rendered by the learned Amicus Curiae, Mr. U Choudhury, Guwahati Legal Service Authority is hereby directed to provide him an amount of Rs.7,000/-, as remuneration. 16. Send back the LCR.