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2020 DIGILAW 378 (GAU)

Runumi Devi v. Haradhan Sarma

2020-03-12

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. R Ali, learned counsel for the appellant and Mr. H Sarma, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge in Criminal Appeal No.6/2007, whereby the learned Sessions Judge allowing the appeal filed by the present appellant, set-aside the judgment and order passed by the learned Addl. CJM, convicting the appellant under Section 498-A IPC and awarding sentence of imprisonment for 1 (one) years and fine of Rs.1,000/- with default stipulation. 3. As per the prosecution case, the complainant Runumi Devi was wedded to the appellant on 08.10.2005 and she went to her matrimonial home with the gifts and dowry given by her parents. Since after few days of the marriage she was subjected to physical and mental torture by the present appellant and other members of the family demanding TV, Motor Bike etc., It was also alleged that the appellant had illicit relationship with his sister-in-law, who was arrayed as co-accused No.2 in the FIR and complainant had seen the appellant with his sister-in-law in a compromising position. As the complainant raised objection against the illicit relationship of her husband, torture upon her increased and ultimately on 05.02.2006 she was driven out from her matrimonial home, and as such, she lodged a complaint. On the basis of the said complaint, learned Magistrate took cognizance and eventually the four accused persons including the present appellant stood trial before the learned Addl. CJM. 4. During the trial, learned Addl. CJM framed charges against all the four accused persons including the present appellant under section 498(A)/403/323/506 IPC to which they pleaded not guilty. Four witnesses were examined by the complainant to substantiate his case and on appreciation of evidence, learned Magistrate convicted the present appellant under section 498-A IPC and awarded sentence as has been indicated above. The rest of the co-accused were acquitted. 5. Aggrieved by the order of conviction and sentence, the appellant preferred an appeal before the Court of Sessions and the learned Sessions Judge by the impugned judgment allowed the appeal and acquitted the present appellant. The order of acquittal passed by the learned Sessions Judge is under challenge in this appeal. 6. I have considered the submissions made by the learned counsel for the appellant as well as learned Addl. The order of acquittal passed by the learned Sessions Judge is under challenge in this appeal. 6. I have considered the submissions made by the learned counsel for the appellant as well as learned Addl. PP and also scrutinised the evidence brought on record. 7. The complainant Runumi Devi was examined as PW-1. In her evidence she deposed that initially special marriage was solemnised between her and the appellant and on the following day there was also social marriage and since after one month of marriage she was subjected to physical and mental torture on demand of dowry in kind, namely, T.V. sewing machine and a bike. She also stated that the appellant had illicit relationship with his sister-in-law and when the complainant objected to his relationship with his sister-in-law, she was further tortured and was driven out of the house on 05.02.2006. In her cross-examination, she stated that initially she filed the case alleging torture and misappropriation of her property, however, the articles which were alleged to have been misappropriated were recovered with the help of the police. It was also stated that because of some problem in their families, she had to go for registered marriage under the Special Marriage Act. It was elicited in her cross-examination that on 05.02.2006, she herself left the matrimonial house and went to her parental house. She also stated that when she was assaulted by the appellant, she raised hue and cry, hearing which the neighbouring people came and witnessed the occurrence. She stated to have visited the doctor for treatment, however, no injury report has been proved nor any Doctor was examined. What emerges from her testimony is that, she herself left the matrimonial home and was not driven out by the appellant as alleged in the complaint. 8. Pw-2, Md. Altav Ali, who happened to be a rickshaw puller stated that while he was carrying a passenger, he had noticed hue and cry in the house of the accused and he also stated to have noticed accused assaulting the complainant. It was also in his evidence that he came to know from the villagers, who assembled near the house of the appellant, that the victim was subjected to physical assault for non-fulfilment of the demand for dowry. It was also in his evidence that he came to know from the villagers, who assembled near the house of the appellant, that the victim was subjected to physical assault for non-fulfilment of the demand for dowry. During cross-examination, he stated that at the time of occurrence there was a passenger in his rickshaw, but inspite of that he was waiting for about 20 minutes to witness the occurrence. What is evident from his testimony is that his evidence as to demand of dowry was apparently hearsay evidence, inasmuch as, admittedly he heard about the demand of dowry from the people, who assembled near the house of the appellant and none of them was examined in this case. Learned Sessions Judge rejected the testimony of this witness with the observation that he was a chance witness and his testimony that inspite of having a passenger in his rickshaw, he was waiting for about 20 minutes for witnessing the occurrence was absurd and inherently improbable. 9. Pw-4 ,Sabita Devi is the mother of the victim and PW-3, Nomi Rajbongshi is the Sister of the victim''s mother as per village relations. PW-3 and PW-4 deposed that both of them came to the house of the appellant and stayed for a night. On that night they have noticed the accused with his sister-in-law staying in the same room and having seen the appellant with his sister-in-law in the same room, PW-1 raised hue and cry and both of them ultimately counselled the accused and left the house. But PW-1 nowhere stated that when she had seen the appellant with his sister-in-law in compromising position Pw-3 & PW-4 were also in her house. Though PW-3 & PW-4 deposed that they were in the house of the appellant on 04.01.2006 on which date they had noticed the accused with his sister-in-law, such evidence of PW-3 & PW-4 was also not supported by Pw-1, the complainant herself. Therefore, the evidence of PW-3 & PW-4 that they had spent a night in the house of the appellant or had seen the appellant sleeping with his sister-in-law in her house is also hardly worthy of inspiring confidence. Learned Sessions Judge while considering the evidence did not believe the oral testimony of PW-2, PW-3 & PW-4. Evidently, the oral testimony of PW-1 was basically confined to the misappropriation of her property. Learned Sessions Judge while considering the evidence did not believe the oral testimony of PW-2, PW-3 & PW-4. Evidently, the oral testimony of PW-1 was basically confined to the misappropriation of her property. Except vague and omnibus statement that she was subjected to physical and mental torture there was no specific allegation of such torture so as to bring it within the meaning of cruelty as defined under section 498-A IPC. Though the complainant alleged in the complaint that she was physically assaulted and forcibly driven out of the matrimonial home, during cross-examination she admitted that she left the matrimonial home out of her own volition. 10. Having appreciated the above evidence, learned Sessions Judge came to the finding that the prosecution was not able to establish the charge under section 498-A IPC, against the appellant beyond reasonable doubt and, therefore, recorded the acquittal of the appellant. 11. On re-appreciation of the evidence as discussed herein before, I find that the view taken by the learned Sessions Judge while recording acquittal of the appellant was quite reasonable. The scope of interference with the order of acquittal is no longer resintegra. The Apex Court in a catena of decision held that unless the order of acquittal suffers from gross illegality causing miscarriage of justice or the findings is totally unreasonable, the order of acquittal cannot be disturbed for the reason, that the order of acquittal strengthens the presumption of innocence in favour of the appellant. It is also the settled proposition of law that even if a views different from the one taken by the Court below is possible, the appellate Court is not supposed to substitute the view of the Court below with its own view to dislodge a finding of acquittal. Be that as it may, having scanned the evidence on record, I find no reason to take a view different from the one taken by the learned Sessions Judge. Therefore, I find no merit in this appeal and consequently the appeal stands dismissed. 12. Send down the LCR along with a copy of this judgment.