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2020 DIGILAW 528 (GAU)

Amirul Islam v. State of Assam

2020-05-26

RUMI KUMARI PHUKAN

body2020
ORDER : Rumi Kumari Phukan, J. 1. Heard Mr. D. Das, learned counsel for the petitioners. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State of Assam/respondent No. 1 as well as Mr. A. Roshid, learned counsel for respondent No. 2. 2. The revision is preferred against the order dated 20.08.2014, passed by the learned Sessions Judge, Goalpara, in Criminal Appeal No. 03/2014, whereby the learned Court has affirmed the order of conviction of the present petitioners under Sections 498 (A)/34 IPC. 3. The brief facts of the case are that on 17.10.2009, informant Kazi Jesmin Sultana filed an FIR before the OC, Baguan Police Station against the present petitioners stating, inter alia that the accused petitioners, i.e., her husband and the family members of her husband tortured her physically and mentally on demand of dowry. It was further claimed that she was married with Amirul Islam about 5 (five) years prior to the filing of the case and, out of this wedlock, a male child was born. When that child was in the womb of the informant, the accused petitioners demanded dowry of Rs. 1 lac and, on that demand, they started torturing on her. Finding no alternative, she brought the amount and handed it over to the appellant Airul Islam. Thereafter, the accused petitioners again demanded Rs. 20,000/- and that demand was also fulfilled by the father of the informant. It is further alleged that the accused petitioners demanded Rs. 5 lacs and when this demand remained unfulfilled, the informant was brutally assaulted, and she was driven out from the house and since then she has been staying in her parental home. 4. On receipt of the said FIR, Baguan PS Case No. 121/2009, under Sections 498-A/34 IPC was registered against all the petitioners and investigation was set in motion. During the course of investigation, the IO visited the place of occurrence, examined material witnesses, drew up sketch map of the site of incident, got the statement of the victim, recorded under Section 164, CrPC and arrested the accused petitioners. Subsequently, the petitioners were granted bail and upon conclusion of the investigation and having found sufficient materials showing involvement of the accused petitioners, the IO submitted charge sheet against them with the allegation of offence, punishable under Sections 498 (A)/34, IPC. 5. Subsequently, the petitioners were granted bail and upon conclusion of the investigation and having found sufficient materials showing involvement of the accused petitioners, the IO submitted charge sheet against them with the allegation of offence, punishable under Sections 498 (A)/34, IPC. 5. The accused petitioners faced the trial and denied the charge sheet framed under Sections 498 (A)/34 IPC and claimed to be tried. 6. During the trial, the prosecution examined 7 (seven) witnesses and defence examined none. Plea of defence is of total denial. At the conclusion of the trial, learned trial Court found and held all the accused petitioners guilty under Sections 498 (A)/34 IPC and sentenced them to SI for 6 months with fine of Rs. 2,000/- each, in default, to undergo SI for one month. Appeal was preferred against the aforesaid order of conviction and sentence and the conviction was upheld by the impugned order of the appellate Court. Now, the present criminal revision has been filed, challenging the aforesaid judgment order dated 20.08.2014. 7. Learned counsel for the petitioner has submitted that despite serious discrepancy in the evidence and the fact that there is no supporting evidence of the informant regarding dowry demand and cruelty etc., the learned trial Court has convicted the accused person and the learned appellate Court also without proper appreciation of the matter has superficially upheld the sentence, which has occasioned a miscarriage of justice. However, it has been submitted that the parties have already settled the matter being matrimonial one and an agreement has also been entered into between the parties and hence, impugned judgment and order should be set aside on the basis of such settlement. 8. The learned counsel for the informant has also entered their appearance and supporting the contention of the learned counsel for the petitioner, has admitted about the settlement arrived at between the parties and has raised no objection for setting aside the impugned judgment and order. 9. Also heard the submissions of learned counsel for the State respondent, who has also submitted that the agreement entered into between the parties can be taken into consideration. It is also fairly submitted that the evidence of the informant got no support from any independent witness. 10. Considered the submission of the learned counsel for both the parties. Also perused the LCR and the impugned judgments. 11. It is also fairly submitted that the evidence of the informant got no support from any independent witness. 10. Considered the submission of the learned counsel for both the parties. Also perused the LCR and the impugned judgments. 11. Being a revisional Court, it has limited jurisdiction to appreciate the matter against concurrent findings, save and except, examining the legality and propriety and correctness of such findings. In view of the submission of the learned counsel for the parties about the evidence on record, let us have a look upon the evidence adduced by prosecution and the findings of the learned Courts below. Both the Courts have accepted the testimony of the victim/informant to be the true version of the occurrence and has observed that other neighbouring witnesses may not have the knowledge of the matrimonial relation between the parties. Thus, basing upon the sole testimony of the informant/victim, the accused persons have been held guilty. 12. On appreciation of the evidence on record, it is found that the informant eloped with the accused petitioner, Amirul Islam, and, thereafter, married him on 04.02.2005, and they have a child out of their wedlock. The present FIR was filed on 17.10.2009, i.e., after more than 4 years of their marriage. According to her, on the demand of dowry of Rs. 1 lac, the accused persons, i.e., the husband, father-in-law, mother-in-law and brother-in-law, they ousted her from their house after certain torture and her father managed Rs. 1 lac, which she gave to her husband. Then again, the accused persons demanded Rs. 20,000/- from her, which was also provided to them, as given by her father. After few days again, by demanding Rs. 5 lacs, with a threatening to life, she was ousted from their house, for which she took shelter in her parental house. Later on, her husband took her to a rented premises with assurance to keep her well but, they again demanded Rs. 5 lacs and ousted her from the rented premises on 21.09.2009 by keeping her gold ornaments, for which she filed the FIR. It is peculiar to note that in her evidence, she has not mentioned any date, year and time etc. of such dowry demand as well as the manner of torture and it is totally a vague statement. 5 lacs and ousted her from the rented premises on 21.09.2009 by keeping her gold ornaments, for which she filed the FIR. It is peculiar to note that in her evidence, she has not mentioned any date, year and time etc. of such dowry demand as well as the manner of torture and it is totally a vague statement. There was no any supportive evidence as regards such payment of dowry except herself, her father and other family members were not examined in support of her statement that she was subjected to torture and about such payment. Her evidence is also silent as to what sort of injury she sustained and the Medical Officer found lacerated injuries on left elbow joint and right upper arm. Moreso, any family member of the informant, including her father, who stated to have given the demanded money or about such torture etc., has been examined by the prosecution, which is vital for prosecution, but the same has not been considered by the learned Court below. 13. The witnesses, PWs-2, 3 and 4 were the neighbours of the informant to the rented premises. PW-2 Salekha Khatun is a next door neighbor of the accused-appellants and she, in her evidence, has very categorically stated that, on the date of incident, she heard loud cry of the informant at about 03:00 pm, but she has no knowledge of what was the cause of such quarrel between them. PW-3 is Fazlur Rahman, the land owner in whose rented house, the couple used to stay. In his evidence, he has stated that the accused and the informant used to stay there as tenants and they remained there for about four months. But he has no knowledge of what happened between the spouses. Both PWs-2 and 3 only heard about the matter of dowry demand but in their evidence they have specifically stated that actually, they did not know what was the actual occurrence and they never saw any incident of assault etc. PW-3 has also stated that he did now know why the informant left her house and otherwise, their relation was cordial. 14. PWs-4 and 5 are hearsay witnesses and they have simply stated that they heard that the accused Amirul demanded lacs of rupees which was paid, but again he demanded Rs. 40,000/- and Rs. 5 lacs from the informant. PW-3 has also stated that he did now know why the informant left her house and otherwise, their relation was cordial. 14. PWs-4 and 5 are hearsay witnesses and they have simply stated that they heard that the accused Amirul demanded lacs of rupees which was paid, but again he demanded Rs. 40,000/- and Rs. 5 lacs from the informant. None of them has seen any occurrence of assault and torture etc. upon the informant and as regards the demand and payment of money, also, they have no personal knowledge. However, one day, they heard some hue and cry in the house of the informant. Obviously, none of the witnesses have any direct knowledge of the occurrence and there is absolutely no evidence to establish the offence of cruelty within Section 498 (A) IPC. 15. The evidence of PW-6 (MO) and PW-7 (IO) being formal in nature is of no help to the prosecution as the case is not otherwise proved by adequate/convincing evidence. Virtually the evidence of the informant remains uncorroborated, unsubstantiated and not inspiring at all. The learned appellate Court was of the view that the neighbouring witnesses may not know what happened between the four walls of their house and about the harassment of the informant. But the same cannot be appreciated, inasmuch, as if the informant was subjected to harassment and torture etc., they being the immediate neighbours might have some knowledge about the occurrence. PWs-4 and 5 except stating about the factum of hearing a loud sound in the house of the informant, have not narrated about any incident, which can be termed as cruelty. Corroboration of the statement of the victim with her earlier statement recorded under Section 164 CrPC cannot be the sole ground to place reliance, whereas, there is no corroborating independent witness in support of the allegation. There is a proverb that the facts may lie but the circumstances may not lie. Here, if the informant was subjected to constant torture as alleged by her, then, certainly, PWs-2 to 5 being the next door neighbours were supposed to know about some of the incidents, which is not found in the present case. 16. There is a proverb that the facts may lie but the circumstances may not lie. Here, if the informant was subjected to constant torture as alleged by her, then, certainly, PWs-2 to 5 being the next door neighbours were supposed to know about some of the incidents, which is not found in the present case. 16. Cruelty for the purpose of Section 498 (A) IPC means any willful conduct, which is of such nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of 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 on account of failure by her. A bare vague and general statement cannot be said that offence under Section 498 (A) IPC has been made out. The provision under Section 498 (A) was inserted with a view to punishing the husband or his relatives, who harass such woman to satisfy unlawful demand. 17. In Jitendra Shome v. State of Tripura; reported in : 2012 (3) GLT 879, it has been held that only the statement of witness can in no way be accepted for convicting an accused regarding harassment unless the degree or intensity of such cruelty on the part of the accused, which is likely to cause grave injury or danger to her life, limb or her mental and physical health is proved. Further, the Hon'ble Apex Court in Girdhar Shankar Tawade v. State of Maharashtra; reported in (2002) 5 SCC 177 : ( AIR 2002 SC 2078 ); has held that absence of evidence regarding grave injury or danger to life, limb or health of the woman, as contemplated under Clause-(a) of the Explanation will not attract the offence under Section 498 (A) IPC. It has further been held that there must be some cogent evidence to bring home the charge under Section 498 (A). The same view is reiterated in Sakharam and Anr. v. State of Maharashtra; reported in (2003) 12 SCC 368, that mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498 (A) IPC. 18. The offence of cruelty as postulated under Section 498 (A) IPC is serious in nature. The same view is reiterated in Sakharam and Anr. v. State of Maharashtra; reported in (2003) 12 SCC 368, that mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498 (A) IPC. 18. The offence of cruelty as postulated under Section 498 (A) IPC is serious in nature. To bring home the charge under Section 498 (A) IPC, necessary ingredient is to be proved beyond all reasonable doubt. Section 498 (A) IPC is prescribed as below:- 498-A. 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. 19. In view of the mandate of the law, cruelty under Section 498 (A) IPC is not an offence simpliciter and its ingredient is to be proved by requisite evidence, which is lacking in the present case and the learned trial Court as well as the appellate Court has not appreciated the matter in proper perspective of law and facts, which has vitiated the entire findings. The findings of the Court, which lack legal propriety, calls for interference to prevent the miscarriage of justice. The learned trial Court, as well as the appellate Court, failed to appreciate the cardinal principle of law that "the prosecution has to prove its case beyond all reasonable doubt"; is not discharged in the present case. 20. It has been submitted that the parties have settled the matter outside the Court, which is another criteria and this Court is not proposed to dispose the matter only on the basis of settlement between the parties. 20. It has been submitted that the parties have settled the matter outside the Court, which is another criteria and this Court is not proposed to dispose the matter only on the basis of settlement between the parties. As has been discussed above that the prosecution has not been able to prove the charge of cruelty beyond all reasonable doubt against. the petitioners and on the score, they deserve acquittal. 21. Resultantly, the impugned judgment and order of the Court below is hereby quashed and set aside and the accused petitioners are set at liberty forthwith. 22. Return the LCR.