Robijul Alam Laskar @ Rabijul ... vs The State Of Assam And Anr
2021 Latest Caselaw 490 Gua

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GAHC010186982014




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Rev.P./426/2014

            ROBIJUL ALAM LASKAR @ RABIJUL HAQUE LASKAR
            S/O LT. ABDUL LATIF LASKAR, VILL. RAJYESHWARPUR PART-I, P.O.
            RAJYESHWARPUR, P.S. LALA, DIST- HAILAKANDI, ASSAM

            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE PUBLIC PROSECUTOR, GAUHATI HIGH COURT, GUWAHATI

            2:HIBBUL AMIN LASKAR
             S/O YASIN AHMED LASKAR
            VILL. NITAINAGAR PART-III
             P.O. NITAINAGAR P.S. HAILAKANDI
             DIST- HAILAKANDI ASSAM

Advocate for the Petitioner    : MR.Z HAMMAD

Advocate for the Respondent : MR. B J DUTTA (Addl. PP, ASSAM)

BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

Date : 11-02-2021

JUDGMENT & ORDER

Mr. A.M. Barbhuiyan, learned counsel appearing for the petitioner and Mr. B.J. Dutta, learned Addl. P.P. as well as Ms. R.D. Majumdar, learned legal aid counsels appearing for the informant were heard.

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2. This revision petition is directed against the judgment and order dated 16.09.2014 passed by the learned Sessions Judge, Hailakandi, in Crl.A. No. 44/2012 uholding and affirming the judgment and order passed by the learned Chief Judicial Magistrate, Hailakandi in GR No. 685/2010, whereby the petitioner was convicted under Section 498A IPC and sentenced to simple imprisonment for one year and fine of Rs. 1000/- with default stipulation.

3. The facts, which may be relevant for disposal of this revision petition may briefly be stated thus - the respondent No. 2 was married to the revision petitioner. Since after few days of marriage, the respondent No. 2 was subjected to physical and mental torture by the petitioner upon demand of dowry and thereafter the respondent No. 2 lodged an FIR, on the basis of which police registered a case and submitted charge sheet under Section 498 A IPC and eventually the petitioner stood convicted and sentenced by the learned trial court as indicated above. The conviction and sentence was also upheld by the learned Sessions Judge.

4. Learned counsel for the petitioner submitted that the ingredients of offence under Section 498A IPC was not proved beyond reasonable doubt and both the courts fell in error in convicting the petitioner under Section 498A IPC ignoring the evidence brought on record and as such, the impugned judgment had suffered from the vice of perversity.

5. Learned legal aid counsel appearing for the respondent No. 2 as well as the learned Addl. P.P. contended that the cruelty includes mental torture, and as such the conviction recorded and sentence imposed by the courts below cannot be faulted.

6. It appears from the record that the FIR was lodged by the elder brother of the respondent No. 2 (victim), who was examined as PW-1. He deposed in his evidence that after the marriage, the PW-2 lived happily with the petitioner for about 10 months and thereafter the petitioner demanded Rs. 1,00,000/- from the father of the victim. He further stated that as the father of the victim could not pay the demanded money, the PW-2 was subjected to torture. He also stated that because of the torture, the PW-2 came to their house, where she gave birth to a child and there were village meeting on several occasions and ultimately on Page No.# 3/6

21.05.2010, the petitioner assaulted the victim and had driven her out from the house. During cross examination, it was elicited that he has no knowledge as to when the demand of Rs. 1,00,000/- was made by the accused to his father.

7. It is worthy to mention that the father of the victim has not been examined in the instant case and as such the evidence of PW-1 with regard to demand of money appears to be hearsay and not admissible in evidence. He also stated during cross examination that on being informed by the victim, he rescued the victim from her matrimonial home with the help of police, whereas, PW-2, the victim herself negated the aforesaid statement of the PW-1, inasmuch as, according to her, she herself came out the matrimonial home when police investigated the case. PW-2 also stated in her evidence that after 6/7 months of marriage, the accused started to torture her and also started to demand Rs. 1,00,000/- and thereafter a girl child was born to them. She further stated, that there were several village meeting and eventually on 21.05.2010, she was assaulted by her husband (petitioner) and kept her confined in a room, where from she made a telephone call to her brother and police rescued her at the instance of his brother. Whereas, during cross examination, she has admitted that she was not confined and out of her own, she left the matrimonial home when police came to investigate the case.

8. In the FIR lodged by PW-1, it was stated that demand of Rs 1,00,000/- was made as dowry after the birth of a girl child of the PW-1, whereas according to PW-1, such demand was made after 6/7 months of marriage. The PW-4 stated that the accused started demanding money from the family member of PW-1 and he also used to beat her. It is also evident from the testimony of PW-5, the Investigating Officer that the victim did not tell before him about the accused assaulting her and confining her in the room on 21.05.2010.

9. What is therefore palpable from the oral testimony brought on record is that there was no legal evidence as to demand of dowry. Though, the PW-1 alleged in the FIR, that after the birth of the child, demand was made, in his evidence, he stated that such demand was made after 10 months of marriage before birth of the child. Besides the above contradiction, PW-1 has admitted that the demand was made to his father and not to him and he was also not Page No.# 4/6

aware as to when such demand was made. It is therefore abundantly clear from the evidence of all the prosecution witnesses that no legal evidence could be brought on record as to demand of dowry.

10. It is also evident that no specific incident or allegation has been made as to physical and mental torture, except omnibus and bald statement that the victim was subjected to physical and mental torture. Even though, it was sought to be introduced during evidence that on 21.05.2010, the victim was mercilessly assaulted by the accused and she was kept confine in the house and was rescued by PW-1 with the help of police, such statement was also negated by PW-5, inasmuch as, no such allegation of assault and keeping the victim confine in house on 21.05.2010 was made by the PW-2 in her statement recorded under Section 161 CrPC. In fact, the victim herself admitted in her evidence that she out of her own left the matrimonial home when police started investigation of the case.

11. Section 498A IPC provides that 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. The expression 'cruelty' has been defined in the explanation to the Section 498A IPC, which is reproduced below:

" 'cruelty' means -

(a) any willful 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. Thus, the punishment under Section 498 A of the IPC is provided for subjecting a woman to cruelty by her husband or the relative of the husband. As per the definition, the Page No.# 5/6

expression 'cruelty' postulates two categories of acts as discussed in Clause (a) and (b) of the explanation to Section 498 A IPC. As per Clause-(a) of explanation, willful conduct, which is of such a grave nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. As per Clause-(b), 'cruelty' means harassment of a woman with a view to coercing her or any person related to her to meet demand of dowry.

13. In the present case, as we have noticed above, the prosecution has not been able to establish any demand of dowry beyond reasonable doubt inasmuch as, there was no legal evidence to that effect. Therefore, the only question to be considered as to whether the accused subjected his wife, the respondent No. 2, to 'cruelty' within the meantime of Clause-

(a) of the explanation to Section 498A IPC. In order to bring the willful act within the meaning of cruelty under Clause (a) willful conduct must be of such grave nature that the same is likely to drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health. Thus, when the statute has given a specific meaning to the expression 'cruelty' for the purpose of offence under Section 498A IPC, prosecution must establish beyond reasonable doubt that the act done by the accused constitutes the ingredients of offence or constitute the 'cruelty' within the meaning of Section 498 A IPC. In absence of such proof establishing the 'cruelty' within the meaning given by statute, no conviction can be recorded for any other act or cruelty which does not come within the specific meaning of the term. Therefore, it is not each and every cruelty, rather the cruelty which comes within the sweep of Section 498A IPC only would attract the penal provision of Section 498 A IPC.

14. From the evidence on record, as indicated above, we have found that prosecution has not been able to bring on record any cogent and admissible evidence as to demand of dowry. There was also no evidence that the PW-1 was subjected to ill treatment in such a manner, which would lead the victim to commit suicide or to cause harm to herself. It is to be borne in mind that day to day family feud between the husband and wife or matrimonial dispute does not constitute cruelty within the meaning of Section 498A IPC, nor sporadic act of ill treatment by husband without anything more does attract the provision of Section 498 A IPC. In the present case, evidently, except omnibus and bald statement of torture, no specific incidence or willful act has not been attributed to the accused, to establish beyond doubt that the victim Page No.# 6/6

was subjected to cruelty within the meaning of Section 498A IPC. The lone incident of assault sought to be introduced during evidence has also not been proved beyond doubt. This being the position, both the court below is found to have ignored this vital question as to whether cruelty as defined by the statute has been proved, while convicting the revision petitioner under Section 498 A IPC. Thus, when 'cruelty' has not been established, the conviction recorded and sentence awarded by both the courts below cannot be sustained. Accordingly, the revision is allowed and the conviction and sentence are set aside. Bail bond, if any stands discharged.

15. Send down the LCR.

JUDGE

Comparing Assistant