GR case no. 1754/13
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
DARRANG , MANGALDAI
G.R. Case No. 1754/2013 [under Section 498(A) IPC]
State of Assam
-vs-
Md. Fazal Haque
son of Md. Iman Ali,
Village No.2 Golondi, PS Kharupetia
District Darrang, Assam
………….. Accused person
Present :- C. Baruah, A.J.S.
Judicial Magistrate First Class,
Darrang, Mangaldai
Advocates Appeared:-
Ms. S.S. Yasmin ……………………… Learned Assistant Public Prosecutor
Ms. O.J. A. Begum …………….. Learned Advocate for the accused person
Charge framed on :- 10.06.2015
Evidence recorded on:- 20.08.2015, 05.12.2015, 09.06.2016, 29.07.2016
Accused examined on:- 12.08.2016
Arguments heard on :- 27.09.2016
Judgment delivered on:- 26.10.2016
J U D G M E N T
1. The gist of prosecution’s case was that on 05.11.2013, one Musstt. Banesha
Khatun had lodged a complaint case before the Court of learned CJM,
Darrang, Mangaldai alleging therein inter alia that the accused person, her
husband, along with his other family members had, after marriage,
demanded dowry from the informant/victim wife and subjected her to
immense physical torture.
2. The learned CJM, Darrang, Mangaldai was pleased to forward the aforesaid
complaint, under Section 156(3) CrPC, to the Officer-in-Charge, Kharupetia
police station for necessary action as per law. On receipt of the complaint,
Kharupetia PS case no. 393/13 under Sections 498(A)/420/325/34 of IPC
was registered and investigated into. On completion of investigation, the
Investigating Officer had submitted charge-sheet under Section 498(A) of IPC
against the said accused person. After submission of charge-sheet, the
Learned Chief Judicial Magistrate made over the case to my learned
predecessor-in- Court for disposal. Accordingly, cognizance was taken of the
offence as stated in the Charge-sheet and summons issued to the accused
person.
3. On completion of appearance, the accused was enlarged on court bail and
copies of relevant documents as required under Section 207 Cr.P.C were
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GR case no. 1754/13
furnished to the accused person. Also, after hearing both sides on the point
of charge, formal charge under Section 498(A) IPC in writing was framed and
kept tagged with the main case record. The ingredients of the said offence
was explained to the accused to which he pleaded not guilty; but claimed to
be tried.
4. During trial, prosecution side had examined altogether 5(five) witnesses. The
examination of accused person under Section 313 Cr.P.C was recorded on
separate sheet of papers and kept along with the case record. The defense
plea was of total denial. Defense side had examined none on its own behalf.
5. I have heard oral arguments advanced by the Learned Counsels for both the
sides and duly scrutinized the entire case record.
POINT FOR DETERMINATION :-
6. Whether the accused person had subjected his wife Musstt. Banesha Khatun
to cruelty, both physical and mental, over a period of time( more specifically on the
dates of 15.10.2013 and 16.10.2013) with a view to coerce her to meet unlawful
dowry demand , and compelled her to leave the marital home, thereby committing
an offence punishable u/s 498(A) IPC ?
DISCUSSION OF EVIDENCE,DECISION AND REASONS THEREOF :-
7. Evidence on record was thoroughly perused and submissions made by the respective
learned counsels duly considered for arriving at a just decision to determine the
aforesaid point. The Learned APP submitted that sufficient materials are available on
record that will prove the guilt of accused person beyond reasonable doubt. Per
contra, the Learned Counsel for the accused person has submitted that there is
nothing on record which arraigned the accused person as reasonable doubts
persisted about the prosecution’s version. Relevant extracts of the testimonies
adduced by the prosecution’s witnesses have been unfurled below:-
8. PW1(the first informant) deposed that her marriage with accused had took place
around 12 years back. She deposed that one year post-marriage went well. She
deposed that thereafter accused had asked her to bring Rs 50000/- and a bike from
her parental home. As she was unable to comply, the accused had beaten her up.
She deposed that around two years back the accused had beaten her and thrown
her out. She deposed that the accused had remarried again. She deposed that the
accused had threatened her and her family members with murder. She had identified
the Ext.1 as her ejahar. During cross examination, PW1 deposed that she was aged
around 10 years at the time of her marriage. She deposed having spent 7 years’
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GR case no. 1754/13
conjugal life with accused. She deposed that her husband’s neighbors were
Asaruddin, Ismail, Abu Sama, etc. and these persons were well aware of the
occurrence. She deposed having left for Karnataka and had returned around 5
months back. She had spent around 4 months in Karnataka and had taken her two
children with her, without telling the accused. She admitted having cited Abu Sama
and Ismail as witnesses in her ejahar. PW1 deposed that on 15.10.2013 and on
06.12.2012, she was away at Karnataka.
9. PW2 deposed having no knowledge at all about the occurrence, and that the police
had not examined him pertaining to the occurrence.
10. PW3 deposed that he had worked for about 4 days as carpenter in the home of
accused. Then, he had learnt that Banesha, wife of accused, had quarreled with the
latter and left for Karnataka.
11. PW4 is the police investigating officer. His testimony was of a formal character. He
had deposed inter alia that having completed his investigation, he had submitted the
prepared case diary to the then O/C. The then O/C, on that day itself, had submitted
charge-sheet against the accused u/s 498(A) IPC on 07.06.2014. PW4 had identified
the Ext.2 as the charge-sheet, with Ext.2(1) as the signature of O/C Ranjit Hazarika,
which he was well acquainted with. He had also identified the Ext.3 as the sketch
map, with the Ext.3(1) as his own signature. During cross examination, PW4
deposed that the informant(PW1) had not stated before him about Ismail, Abu Sama
and other family members knowing about the accused demanding dowry from the
victim. Further, PW4 confirmed that PW1 had not stated that the accused had
demanded a bike and cash money around 7 years prior to the filing of instant case.
12. PW5 deposed that both accused and informant had frequent quarrels between
themselves, cause thereof was not known to her. She deposed having never
witnessed any physical fight, nor had heard about the same. She deposed that after
quarreling with the accused, Banesha had left for her mother’s home. She deposed
that Fazal had remarried again. During cross examination, PW5 deposed having no
knowledge as to why and when Banesha had left.
13. Now on making a careful scrutiny of the materials on record along with appreciation
of the adduced evidence, and after hearing the arguments advanced by the
respective Learned Counsels, certain findings have been arrived at. They are
described as under:-
Now, to prove the commission of an offence under Section 498(A) IPC, it is
necessary to peruse once again the said penal section in its entirety. The
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GR case no. 1754/13
same has been reproduced verbatim as below:-
“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.
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.”
In view of the above dictum of law, let us now proceed further to
ascertain whether the prosecution has succeeded to prove the guilt of the
accused person beyond reasonable doubt?
(a) Perusal of the case record reveals that the FIR/ main complaint petition
(Ext.1) was lodged on 05.11.2013. It also transpires that the last date of
alleged incident was 16.10.2013. It further transpires that the Ext.1
remains conspicuous by being unable to explain the apparent delay of 20
days in lodging the FIR. The PW1, during examination-in-chief, had
remained silent on that aspect. Now, it is a well settled position in law
that any apparent, unexplained delay in lodging the complaint petition/
filing the FIR smacks of reasonable doubts about the genuineness of the
prosecution’s case. It shows that the prosecution’s case is nothing, but an
afterthought. The same ratio is also found applicable even in the instant
case;
(b) The Explanation appended to Section 498A IPC points out well that
“cruelty” as per law falls either under the clause “a” or clause “b” therein.
In the instant case, prosecution’s main plea was upon the alleged
harassment undergone by the informant at the hands of the accused on
account of her inability to satiate his monetary dowry demand. But, in the
said regard, the testimonies adduced by other prosecution witnesses
(other than PW1 herself) are found insufficient to corroborate the
prosecution’s version. It is also found highly intriguing that the
prosecution had not chosen to adduce the testimonies of vital witnesses
like Asaruddin, Ismail, Abu Sama. By not choosing to examine these vital
witnesses, sufficient adverse presumption arises against the prosecution’s
claim as per the illustration ‘g’ appended to Section 114, Indian Evidence
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GR case no. 1754/13
Act. Moreover, the facts harnessed during the testimony of PW1 itself
reveals that she was not a wholly reliable witness. The vital omissions in
her previous statement had been confirmed by the testimony of police
officer PW4; and
(c) It also transpires as an established fact that the accused had remarried
another woman, while his conjugal life with the informant was subsisting.
This had led to the quarrels between the duo. In this regard, I am
fortified by the settled position of law that solitary and stray instances of
domestic discord (as reinforced by the testimonies of PW3 and PW5) do
not invite the wrath of “cruelty” under Section 498(A) of IPC.
As such, from the above discussion and considered deliberation, I am
satisfied to state that the prosecution has failed to prove the guilt of the
accused person beyond reasonable doubt. Situated as, thus, the point for
determination is proved in negative and favorably for the accused person.
14. The accused person is, therefore, acquitted of the offence under Section 498(A)
IPC. His bail bond is to be extended for a further period of six months as per the
mandate of Section 437 A CrPC.
The case is disposed of on contest.
Given under my hand and seal of this court on the 26th
day of October, 2016 in the
open Court in presence of both sides.
Typed and corrected by me
C. Baruah, A.J.S.
Judicial Magistrate 1st Class
Darrang, Mangaldai
C. Baruah, A.J.S.
Judicial Magistrate 1st Class
Darrang, Mangaldai
APPENDIX
PROSECUTION WITNESSES
1. PW 1—–Banesha Khatun
2. PW 2—-Harunar Rashid
3. PW 3—-Jiyarul Haque
4. PW 4—-Nityananda Deka(I/O)
5. PW 5—-Manowara Begum
DEFENCE WITNESS : None
PROSECUTION EXHIBITS/DOCUMENTS:
1. Ext.1-Ejahar
2. Ext.2—Charge-sheet
3. Ext.3—Sketch Map
DEFENCE EXHIBITS/DOCUMENTS : None C. Baruah, A.J.S.
5
GR case no. 1754/13
Judicial Magistrate 1stClass
Darrang, Mangaldai
26.10.2016
The accused person is present along with his Learned Counsel
through hajira. Learned APP is also present.
Judgment is found ready and prepared in separate sheets of paper.
The operative part of the judgment is pronounced and delivered in the
open court in presence of both sides. As such, I am satisfied to state
that the prosecution has failed to prove the guilt of the accused
person under Section 498(A) of IPC beyond any reasonable doubt.
The accused person is, therefore, acquitted accordingly and set at
liberty forthwith.
His bail bonds remain extended for a further period of six months as
per the mandate of Section 437 A CrPC.
Judgment is signed, dated, sealed and tagged with the main case
record.
The case is disposed of on contest.

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