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2020 DIGILAW 41 (GAU)

Mustt Asma Khatun v. Abdul Kuddus Ahmed

2020-01-09

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. D.K. Chomal, learned counsel for the petitioner. Also heard Mr. M.H. Ahmed, learned counsel appearing for the respondent No. 1/accused and Mr. D. Das, leaned Additional Public Prosecutor, Assam appearing for the State/respondent No. 2 2. This criminal revision petition, under Sections 397/401 Cr.P.C., is filed by the petitioner/victim, praying for setting aside the impugned Judgment and Order, dated 29.06.2009, passed by the learned Sessions Judge, Barpeta, in Criminal Appeal No. 8 of 2009 acquitting the respondent No. 1 by setting aside the Judgment and Order of conviction, dated 03.06.2008, passed by the learned C.J.M., Barpeta in G.R. Case No. 16/2005, convicting him under Section 498A of the IPC. 3. The petitioner''s case, in a nutshell, is that she had filed a complaint case against her husband/respondent No. 1 herein, before the Court of learned Chief Judicial Magistrate, Barpeta, on 28.12.2004, alleging cruelty on her. The petitioner contended that she was married to the respondent No. 1 on 22.11.1999 observing religious rites and lived together for a few months and thereafter, the petitioner, on instigations of the in-laws and other family members, subjected her to cruelty, both physical and mental, demanding dowry. It was further alleged that on 20.12.2004, the respondent No. 1 assaulted her, for which she had to be hospitalized for medical treatment. In the aforesaid incident, she sustained multiple injuries. In course of the said incident of assault, she raised alarm and thereupon, the neighbours, including the Gaonburha, came to the house and found her in a naked and injured condition. The Gaonburha, namely, Mijanur Rahman and other family members reported the incident forthwith to her father, whereupon, her father also arrived and made the arrangements for her medical treatment. 4. Based on the above complaint petition, which was forwarded to Sorbhog P.S., a case under Section 498A of the IPC was registered in the said police station, being Sorbhog P.S. Case No. 05/2005. The police, after completion of investigation, laid a charge sheet against the respondent No. 1 and his other family members. The Chief Judicial Magistrate, Barpeta, on consideration of the materials on the case diary and after hearing the learned counsel for both sides, framed charge under Section 498A of the IPC. The respondent No. 1 pleaded innocence and claimed to be tried. The Chief Judicial Magistrate, Barpeta, on consideration of the materials on the case diary and after hearing the learned counsel for both sides, framed charge under Section 498A of the IPC. The respondent No. 1 pleaded innocence and claimed to be tried. In course of trial of the case, the prosecution examined as many as 9 (nine) witnesses including the victim woman and the doctor. After closing of evidence of the prosecution side, the statement of the respondent No. 1 was recorded under Section 313 Cr.P.C. After hearing the learned counsel for both sides and appreciation of the evidence on record, the respondent No. 1 was convicted and sentenced by the learned Chief Judicial Magistrate, as stated above. Aggrieved by the said judgment and order of conviction passed by the learned Chief Judicial Magistrate, Barpeta, the respondent No. 1 preferred an appeal to the Court of learned Sessions Judge, Barpeta. The learned Sessions Judge, Barpeta, on consideration of the evidence laid by the prosecution in the case and upon hearing the arguments of both sides, acquitted the respondent No. 1 of the charge under Section 498A of the IPC against which the instant revision is filed. 5. I have given due consideration to the arguments advanced by the learned counsel for both sides and perused records. 6. The expression ''cruelty'' for the purpose of Section 498A of the IPC is to be established on the basis of proximity test. The cruelty must be of serious nature and also be continuous to attract the offence under Section 498A of the IPC. Perusal of the FIR reveals that the petitioner''s basic allegation is that the respondent No. 1 demanded cash money, motorcycle etc. as dowry from her. Having failed to meet the aforesaid illegal demands made by the respondent No. 1/husband, she was compelled to leave her matrimonial home. Her further allegation is that she was subjected to physical torture, where she sustained multiple injuries. 7. In evidence, the petitioner/ victim woman stated in substance about her allegations made in the FIR without giving a detail account of the series of alleged incidents of cruelty, she had undergone at her matrimonial home in her examination-in-chief and referred to only whatsoever she narrated in the F.I.R, vide Ext. 1. Her cross-examination reveals that her marriage with the respondent No. 1 was solemnized on 22.11.2019 at her parental home as per Islamic rites. 1. Her cross-examination reveals that her marriage with the respondent No. 1 was solemnized on 22.11.2019 at her parental home as per Islamic rites. It is also noticed that after solemnization of marriage, she remained with her parents until she stepped into her husband''s house after 2/ 2 years of marriage. Her evidence does not disclose any specific incident of cruelty by the respondent No. 1. 8. Coming to the evidence of P.W. 2, Noor Jahan Begum, the mother and P.W. 3, Atowar Rahman, the father of the victim, it is seen that their evidence is corroborated by the evidence of their daughter (P.W. 1) in regard to the general statements of cruelty made against the respondent No. 1, their son-in-law. The evidence of P.W. 3 shows that the respondent No. 1 was the private tutor of P.W. 1 before marriage. According to P.W. 3, having come to know about the incident, where P.W. 1 sustained injuries, allegedly caused by the respondent No. 1, from P.W. 7, the Village head man, he (P.W. 3) rushed to the matrimonial house of his daughter and made necessary arrangements for her medical treatment. 9. P.W. 9, Dr. Nazrul Islam, the doctor who examined P.W. 1, on 22.12.2004 at Kalgachia PHC, on being produced by her father, found the following injuries on her person: wxyz "1) 2 (two) Swelling at right lateral side of neck of size: 2cm x 2cm, blue colour zyxw wxyz 2) Swelling at left side of neck, size: 2cm x 2cm, blue colour zyxw wxyz 3) Swelling at back of head, size: 2cm x 2cm, blue colour." zyxw wxyz According to the doctor, all injuries were caused by blunt object and caused within a period of less than 3 days. In cross-examination, he stated that there is no date of the registration of the patient (P.W. 1) and that she was examined in absence of nurse, which is against the medical jurisprudence. zyxw 10. P.W. 4, Md. Abdul Hamid, the uncle of the victim/petitioner, also did not witness cruelty allegedly meted out to her (P.W. 1), but came to know about the incidents of physical and mental cruelty perpetrated on her from the petitioner. 11. The evidence of P.W. 5, Ishak Ali Ahmed, who is an independent witness from the locality, was also in the same footing of the evidence of P.W. 4. 11. The evidence of P.W. 5, Ishak Ali Ahmed, who is an independent witness from the locality, was also in the same footing of the evidence of P.W. 4. His evidence shows that the petitioner was married to the respondent No. 1/accused and the respondent No. 1 demanded money as dowry from P.W. 1 (the victim). 12. It is significant to note that P.W. 7, Khandakar Majaffar Ali, the Gaonburah, has deposed that there was some dispute between the petitioner and the respondent No. 1/her husband, but did not know the cause of such dispute and in what circumstances she had to leave her matrimonial home. The Gaonburha (P.W.7) also stated that on 20th December, as reported, there was an incident at the matrimonial home of the petitioner, and having known about the incident from the family members of the respondent No. 1, he went to their house and found a saree hanging from the ceiling and the petitioner lying in a bad condition and therefore, he advised the respondent No. 1/accused to call the guardian of the petitioner, i.e. her father. According to P.W. 7, no village meeting was held in regard to the aforesaid incident of suspected attempt to commit suicide. 13. Cross-Examination of P.W. 8, S.I., Manmohan Rout shows that he did not find any prima facie evidence in regard to the allegation of demand of dowry made by the respondent No. 1 to his wife/the petitioner. It is noticed that there was no any direct evidence towards the perpetration of cruelty on the petitioner. 14. In Kameshwar Singh Vs State of Bihar and Ors., (2018) 6 SCC 433 , the Honb''le Supreme Court in para 22 of the judgment held as follows: wxyz "22. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is not being used in India. Virtually, it is not applicable to the Indian scenario. Hence, the said maxim is treated as neither a sound rule of law nor a rule of practice in India. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should be made to find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and dust out the smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be punished, but on the other hand to see no person committing an offence should go scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence." zyxw 15. The Honb''le Supreme Court, in Latesh Alias Dadu Baburao Karlekar Vs. State of Maharashtra, (2018) 3 SCC 66 , in para 48 of the Judgment, held as follows (relevant part): wxyz "48............It is settled law that oral evidence takes precedence over the medical evidence unless the latter completely refutes any possibility of such occurrence........." zyxw 16. It may pertinently be mentioned that order of acquittal ought not to be set aside unless it is found to be patently wrong and wholly unsustainable and interference can be made only if there are compelling and substantial reasons. 17. It may pertinently be mentioned that order of acquittal ought not to be set aside unless it is found to be patently wrong and wholly unsustainable and interference can be made only if there are compelling and substantial reasons. 17. On perusal of the impugned judgment and order passed by the learned Sessions Judge, Barpeta, this Court finds no such patent illegality being committed while appreciating the evidence on record and pursuant thereto acquittal of the respondent No. 1 setting aside the impugned judgment and order of conviction recorded by the learned Chief Judicial Magistrate, Barpeta. A perusal of the evidence on record, as discussed above, shows no credible consistency and no evidence of eye-witness of neighbours even in support of the allegations of cruelty. The prosecution appears to have failed to prove the allegation of ''cruelty'', within the purview of Explanation to Section 498A of the IPC beyond all reasonable doubt. The principles laid in the above judgments cited by the petitioner found to have not come to the help of the prosecution''s case. 18. Further, Section 401(3) Cr.P.C. puts an embargo on the Revisional Court in converting a finding of acquittal into one of conviction except when it is satisfied that the finding was apparently perverse and unjustified. 19. This Court, on scrutiny of the evidence on record, does not find any sufficient and cogent reasons to interfere in the impugned order of acquittal of the respondent No. 1/accused. 20. For the reasons, set forth above, the revision stands dismissed. 21. Return the L.C.R.