IN THE COURT OF SUB DIVISIONAL JUDICIAL MAGISTRATE:
SONITPUR: TEZPUR
PRESENT: Mr. R.LAL, AJS
GR CASE No.1541/2006
U/S498A/34 IPC
STATE OF ASSAM
Vs
Jatin Sarma & 5 others.
DATE OF EVIDENCE: 24.08.2007, 01.02.2008, 01.03.08
DATE OF ARGUMENT: 21.01.12 & 06.02.12
DATE OF JUDGMENT: 28.03.12
ADVOCATE FOR THE PROSECUTION: Mr. T. Gajreil
ADVOCATE FOR THE DEFENCE: Mrs. D Sinha.
Cases Referred:
AIR 1968 SC 1270
AIR 1974 SC 2165
A.I.R. 1980 SC 628
S.L.P. (Criminal) No. 3426 of 2007
1994 CrLJ 1392 (SC)
JUDGMENT:

1. The case at hand was initiated on the basis of a complaint
lodged by Sangita Devi stating inter-alia that she was married
to the accused Jatin Sarma on 02.05. 2004 as per Hindu rites
and ceremony. During their conjugal life, so reads the
complaint petition, accused Jatin Sarma (husband) and his
states the complaint petition, the complainant met with some
of these demands by bringing a new sofa set and godrej
almirah to the matrimonial home. It is the case of the
complainant that the accused persons forced the complainant
to leave her job as teacher and they constantly started
harassing her by calling her an eunuch, a thief etc. A careful
reading of the petition goes to show that once the
complainant was forcibly sent to her parents house in 2005.
After a few months, some reconciliation took place and the
complainant went back to the house of her husband.
2. According to the complainant, on her return, the magnitude of
the torture increased manifold inasmuch she was not even
provided with proper food nor allowed to talk on telephone
with her parents. It is her case that she was regularly beaten
by her husband. It is stated in the complaint petition that on
28.09.2005, the accused persons called her parents and other
relatives to their house and then demanded that unless they
sign on a piece of paper, they would not be allowed to take
back their daughter. Left with little option, the parents and
other relatives were constrained to sign that paper, for, they
feared that otherwise, the complainant’s life, who was
pregnant, would be put to jeopardy. In that background, the
complainant has prayed that the document so created be
seized and that the accused be tried and punished for the
offence committed.
3. Upon receipt of complaint petition dated 18.10.2006, the
learned CJM exercised power under Section 156(3) CrPC and
2
directed the OC Tezpur PS to register a police case and
investigate the matter. Accordingly, the complaint petition
was treated as the FIR and the O/C Tezpur PS registered PS
case being numbered 629/2006 dated 19.10.2006 and
endorsed it to a police officer for investigation. In the course
of investigation, the statements of material witnesses were
recorded. The accused persons having being granted prearrest
bails surrendered before the police station and were
enlarged on bail. After completion of other usual aspects of
investigation, police submitted charge sheet vide CS 125/07
dated 31.03.2007 under Section 498A/34 IPC showing all the
FIR named accused persons as the charge sheeted accused. On
receipt of the charge sheet, my learned predecessor took
cognizance and directed the issuance of processes against the
listed accused persons. In due course the accused appeared
and copy of all relevant documents was furnished to them.
After hearing the parties, and upon being satisfied that there
was prima facie materials, charge under Section 498A/34 IPC
was framed read over and explained to the accused persons.
The accused pleaded not guilty and hence the case proceeded
to next stage of trial. The defence case as reflected in their
statement is one of total denial.
4. POINTS FOR DETERMINATION :
•Whether the accused Jatin Sarma, Kunti Devi, Sarumai Devi,
Jina Devi, Trishna Devi and Jadav Sarma from 02.05 2004 to
28.09. 2005 committed physical and mental cruelty upon the
complainant with intent to coerce her to meet the unlawful
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demand of dowry?
• Whether the above named accused knowing well that the
complainant was pregnant assaulted the complainant on
several occasion with intent to cause grave danger to her life
or limb and further forced her and her relatives to sign a blank
paper before being thrown out of the matrimonial home?
5. DISCUSSION DECISION AND THE REASONS THERE FOR: I have
perused the record and heard the parties. In this case the
prosecution case rests on the testimonies of ten (10) witnesses
including the IO. The defence has not examined any witness
and puts forward its case through the written statement filed
under Section 313(5) Cr.PC. The accused have denied having
demanded dowry or having committed any torture. It is stated
that the complainant left the matrimonial home on her own
choice and that she and her family members signed a
document in presence of village elders admitting that no such
cruelty ever visited the complainant in her matrimonial home.
6. In the case at hand, prosecution witnesses can be categorized
into three (3) broad groups. PW2, PW3 and PW5 are close
family members of the informant (PW1). On the other hand,
PW4, PW6, PW7, PW8 and PW9 are villagers of the village
where the accused resides. The third group consists of only
one witness namely PW10 who is the investigating officer and
his testimony is of formal nature.
7. BURDEN & INITIAL ONUS OF PROOF: At the very outset I
must point out that when a wife leaves the house of the
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husband, it is a circumstance to prove that there was marital
discord. However whether the husband or the wife was at
fault for the marital discord cannot be presumed from this
circumstance. It is pointed out that in penal cases, there is
strict interpretation of statute and no presumption can be
drawn against the accused unless the statute permits doing so.
The burden and the initial onus is, therefore, upon the
prosecution to prove that the reason for marital discord was
the cruelty being perpetrated by the accused.
8. EVIDENTIARY VALUE AND WEIGHTAGE TO BE ASSIGNED TO
PW1: Before reading the evidence on record, I must point out
that Mrs. D. Sinha, learned defence counsel, has assailed the
evidentiary weightage of the prosecutrix (PW1) on the ground,
namely, that the prosecution itself never relied on her and got
the statement of victim recorded under Section 164 Cr.PC.
9. The erudite counsel has pointed out that the statement of the
victim was recorded on oath under Section 164 Cr.PC (exhibit
2) and in that background, it has been canvassed that the
prosecution at one point of time believed that their most
important witness (PW1) was not reliable and may change
her version during trial. For unless the prosecution doubted
the credibility of PW1, so canvasses Mrs. Sinha, there was no
other justifiable reason for getting the victim’s statement
recorded on oath. To fortify her submissions, the engaged
counsel has drawn my attention to certain pertinent
observation of the Supreme Court in Ramcharan Vs State
reported in AIR 1968 SC 1270. These observations are
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relevant and for purpose of clarity in decision making, I
hereby quote what the Apex Court opined:
“We are of the opinion that if a statement of a
witness is previously recorded under section 164,
Criminal Procedure Code, it leads to an inference
that there was a time when the police thought
the witness may change but if the witness sticks
to the statement made by him throughout, the
mere fact that his statement was previously
recorded under section 164 will not be sufficient
to discard it. The Court, however, ought to
receive it with caution and if there are other
circumstances on record which lend support to the
truth of the evidence of such witness, it can be
acted upon.”

10.It is a new line of argument advanced before me as a trial
Judge. I have therefore tried to look for other decisions of the
Apex Court and High Courts to ascertain the present position
of law on this subject, the subject being the weightage to be
assigned to a witness whose statement was recorded under
Section 164 Cr.PC. My search for an answer has taken me to
the decision in Balkram Vs State reported in AIR 1974 SC
2165, wherein the Supreme Court held as under:
“It cannot be overlooked that the statements of
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Jhilmili, Ram Prakash and Aryendra were recorded
under Section 164, Criminal Procedure Code, in
June 1971, soon after the incident. The
Investigating Officer says that he got the
statements recorded by way of precaution. That
could be true and it would be wrong to find fault
with the Investigating Officer merely because he
got the statements of these witnesses recorded
under Section 164. Nor can the evidence of a
witness be discarded for the mere reason that his
statement’ was recorded under Section 164. But
the High Court overlooked that the evidence of
witnesses whose statements are recorded under
Section 164 must be approached with caution.
Such witnesses feel tied to their previous
statements given on oath and have but a
theoretical freedom to depart from the earlier
Version. A prosecution for perjury could be the
price of that freedom. It is, of course, open to the
Court to accept the evidence of a witness whose
statement was recorded under Section164, but the
salient rule of caution must always be borne in
mind. That is all the more necessary when almost
all the eyewitnesses are subjected to this tying-up
process. Even Aryendra, the sister’s son of
Dharam Pal, was not thought to be above
suspicion.”
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11. Moreover, I also stumbled upon another decision of the
Supreme Court where the Apex Court has reiterated the
position of law. In Dhanabal Vs State reported in A.I.R. 1980
SC 628, it was reiterated that the trial court ought to receive
the evidence of a witness whose earlier statement was
recorded on oath with caution and only if there are other
circumstances on record which lend support to the truth of
the evidence of such witnesses, it can be acted upon. The
ratio was reiterated by the Supreme Court in Kanwar Pal –VsState
of Haryana 1994 Cr.L.J. 1392 (SC)
12. It would not be inappropriate to now point out that the
statement made under Section 164 Cr.PC cannot be used as a
substantive piece of evidence. It can be used only for the
purpose of corroboration and contradiction. A question that
therefore arises in my mind is whether it was proper on the
part of the police to get the statement of the victim recorded
under Section 164 Cr.PC, for, once his statement has been so
recorded, prosecution becomes saddled with added
responsibility to show corroboration. The trial courts, in view
of the ratio laid down by the Supreme Court in Balkram
(supra) and Dhanlal (supra) has been mandated to look into
the testimony of witnesses (whose statement has been
recorded under Section 164 Cr.PC) with added care and
caution.
13. I must further clarify that the Apex Court has dictated that
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the condition precedent for recording statement under
Section 164 Cr.PC is that the I/O is of the opinion that there
are real chances that the named witness may be gained over
or tampered with or is not reliable then and only then he
should make a prayer and cause the statement to be recorded
on oath thereby minimizing the chances of that witness
turning hostile.
14.In view of the above position of law, I find considerable force
in the submissions advanced by made by the defence counsel
and I conclude that the weightage to be assigned to PW1
would not be as high as ordinarily assigned to an injured
witness. I must however hasten to point out that the
testimony of PW1 cannot be wholly discarded merely because
her statement was recorded on oath u/S 164 Cr.PC.
15.What the Apex Court has dictated and which I am bound to
obey is that greater caution need to be exercised while
appreciating evidence of PW1 and it has been further
mandated in no uncertain words that trial Judge should look
for corroboration and act only if there are other
circumstances on record which lend support to the truth of
the prosecution version. In other words, what logically follows
is that the accused persons now cannot be convicted upon the
sole testimony of victim (PW1) and corroboration from mouth
of other witnesses or from other circumstances available on
record which lend support to PW1’s version has become an
absolute necessity.
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16. DEPOSITIONS RECORDED AND APPRECIATION THERE FOR: In
the light of what has been discussed above, I would now begin
the discussion by reading the deposition of PW1, PW2, PW3
and PW5, witnesses of the first group. The alleged victim
Sangita Sarmah @ Kaku has been examined as PW1. She has
averred that she was married to the accused Jatin Sarma on
02.05. 2004 as per Hindu rites and ceremony. During their
conjugal life, so deposes PW1, accused Jatin Sarma, his
brothers and sisters namely Kunti Devi, Sarumai Devi, Jina
Devi, Trishna Devi and Jadav Sarma started committing
physical and mental cruelty and asked her to meet the
unlawful demand of dowry. Initially, so avers PW1, the
complainant met with some of these demands but the greed
of the accused was not satisfied and they constantly started
harassing her by calling her “Miyani” and Chor” and then she
was forcibly sent to her parents house in early part of 2005.
After one and half months, so testifies PW1, some
reconciliation took place and the complainant went back to
the house of her husband.
17.It is in the testimony of PW1, that on her return, the
magnitude of the torture increased manifold inasmuch the
victim was not even provided with proper food nor allowed to
talk on telephone with her parents. That apart, PW1 deposes
that she was also regularly beaten by her husband and that on
28.09.2005, the accused persons called her parents and other
relatives to their house. It is averred that the accused
demanded that unless she and her parents sign on a blank
10
paper, they would not be allowed to take back their daughter
(PW1). Left with little option, the parents and other relatives
as well as PW1 were constrained to sign that blank paper, for,
they feared that otherwise, the complainant’s life, who was
pregnant, would be put to jeopardy. Thereafter, in due
course, PW1 gave birth to one child but her husband did not
even come to visit her to see the new born child. These
neglect and cruelty forced the complainant to initiate the
instant case.
18. It is time now to conjointly read the deposition of PW2 and
PW3. Binu Sarma, (PW2), the mother and Girish Sarma (PW3),
the father, of the informant have deposed on oath that their
daughter was married to accused Jatin Sarma on 02.05.2004
and that their daughter finally left the marital home on
28.09.2005. It has been averred that the accused were not
satisfied with the quality of goods brought by their daughter
and hence they (accused) committed continuous mental and
physical cruelty upon the victim (read PW1). In order to save
Sangita (PW1) from further cruelty, so testifies these two
witnesses, a new sofa set and a new almirah was purchased by
them and send to the house of the accused persons. But greed
has no end and on 17.05.2005, their daughter was constrained
to come back to the parental home where she stayed there for
a few months. It has been further stated by PW2 and PW3 that
some sort of compromise was reached for villagers were sent
by the accused to bring back Sangita (PW1). According to
these two witnesses, the villagers assured that henceforth
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Sangita @ Kaku would be kept properly by the accused
persons, and on being so re-assured, their daughter went back
to her husband’s house. PW2 and PW3 have stated that this
time on her return their daughter was subjected to greater
degree of cruelty and her life was made miserable by the
accused persons. Learning about the cruelty being so inflicted,
PW2 and PW3 went with other relatives to the house of the
accused persons where in presence of some villagers, accused
Jatin Sarma forced PW2 and PW3 to sign some documents
before allowing them to take away their daughter. The father
and mother have stated on oath that they signed the
document so that her daughter can be saved from further
cruelty.
19. CROSS EXAMINATION: It is perhaps the appropriate time to
read together the cross examination of PW1 PW2 & PW3. In
cross examination, PW1 admitted that during her stay at the
marital home, she used to visit her parents and her parents at
times visited her at the marital home. Moreover, PW1
admitted that she was allowed to mingle with neighbours
during her stay at the marital home. Thus what is clear is that
there was no stoppage on the movement of the victim to go to
her parental home and her parents and other relatives were
also not restrained by the accused to meet PW1. Similarly
during cross examination, PW2 and PW3 admitted that their
daughter visited the parental house on the occasion of 8
Mangala festivals. It has also been admitted by them that
PW1 came again after about I month of marriage and re12
visited them after 4 months. It is thus on record that Sangita
used to go on and off to her parent’s house. It has already
come out through the mouth of PW1 and other witnesses that
she used to visit her neighbours and her neighbours also met
her at the marital home. In the light of the above admission,
allegation made that PW1 was kept locked inside one room
does not cut much ice.
20. It is also the time to look into some subtle aspect of this
case. PW1 has specifically stated in her deposition that
subsequent to her arrival in the matrimonial home on 04.07.
2005, she was not allowed to talk to her parents even on
phone. On the other hand PW2 categorically admitted that at
that time there was no telephone connection in the house of
the accused and hence the allegation that restraint was put
on use of telephone is unsustainable. Thus another element of
cruelty gets de-railed because of the admission made by the
mother of PW1. That apart, had PW1 not been provided with
food in the night for 30-40 days without interruption, she
would have needed medical attention. The prosecution has
not exhibited any medical document to prove the ill-health of
PW1. None of the local witness not even PW5 anywhere stated
that PW1 was seriously ill on 28.09.05 when they visited her.
Moreover, PW1 has herself not stated in her deposition that
immediately after 28.09.2005, she narrated the various
incident of cruelty to her parents and that her parents took
her to some hospital for treatment.
21. I must not lose sight of the fact that during further cross
13
examination, PW1 stated that after 4 months of marriage,
accused started teasing her about the quality of goods brought
at the time of marriage and they also began using obscene
words against her. The total period of stay at the marital
home, indisputably is 1 years and 4 months and 26 days.
During this period, the wife lived un-interruptedly during the
period of 02.05.05 to 17.05.05 at her parental house. Thus
what comes out is that if we deduct the first 4 months when
no cruelty is alleged, then the alleged period of cruelty was
not more than 1 year. Moreover, during this period of 1 year,
it is proved that husband (Jatin Sarmah) initiated the reconciliation
on both the occasion by first sending villagers
asking them to request the parents (PW2 and PW3) to send
back their daughter. This happened on 17.05.05. It is very
important to note that during cross examination of PW1, PW2
and PW3, it has come out that it was accused Jatin Sarmah
who had called the parents of his wife to his house on
28.09.2005. PW2 & PW3 have impliedly admitted in their cross
examination that their son-in law asked them to visit their
place and accordingly, they went to that place on
28.09.2005.I cannot but also mention for clarity in decision
making that Jayanta Koch, (PW9), the gaon burah has stated
unambiguously that accused Jatin Sarmah wanted a
rapprochement but his wife (PW1) wanted to leave the marital
home and go back to her parent’s house.
22. APPRECIATION OF FACTS STATED: I must pause to point out
that the above mentioned facts portrays the background and
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it helps in understanding the environment that prevailed in
the marital home. It also enables me to understand and
appreciate the conduct of the principal accused for conduct is
relevant and cannot be ignored while appreciating evidence. I
vividly remember here the conduct of the principal accused
that he was trying for rapprochement with his wife. Without
stating anything more at this stage, let me now discuss the
incident dated 28.09.2005. Both parties have portrayed
contrary picture of the incident.
23. A VERY IMPORTANT ASPECT: It is perhaps the most important
aspect of this case. Now let me come to the incident dated
28.09.2005, a date on which the victim was allegedly forced
out of the marital home. During cross examination PW1, PW2
and PW3 have been confronted with a document and they
have admitted their signature on it. The document has been
marked as exhibit KA and exhibit KA (1) KA (2) and KA (3) is
the signatures of PW1, PW2 & PW3 respectively. It has been
stated by PW1 that one of her relative namely Naren Phukan
(a police personnel posted in local police outpost) had
accompanied PW2 & PW3 to the house of the accused. PW1
averred that their signature was forcibly obtained in presence
of the above named police personnel (PW5).
24.In the above background, let me now read the deposition of
PW5. Naren Phukan (PW5) states that he is a relative of PW1
and is posted as a police personnel at Bebejia out post, under
whose jurisdiction, the house of the accused are situated.
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PW5 deposed that having learnt of marital discord and
infliction of cruelty upon Sangita Devi, @ Kaku he had talked
to the accused Jatin Sarmah on two occasions but reconciliation
could not be arrived at and Sangita had to
ultimately leave the marital home. What is material is that in
cross examination, though PW5 admitted his presence in the
house of accused, he surprisingly, expresses his ignorance
about execution of any agreement (read exhibit KA) on
28.09.2005. Thus the testimony of PW5 is in sharp
contradiction with the version stated by PW1 PW2 & PW3. On
one hand, PW1 PW2 and PW3 only speak of forcible execution
of one document while on the other hand, their own relative
Naren Phukan accompanying them expresses his total
ignorance on such a vital aspect of the case. The casualty of
such inter-se omission is undoubtedly the prosecution’s
version.
25. ONUS IS UPON THE PROSECUTION TO PROVE
FORCE/COERCION: It is a settled position of law that once a
party admits his signature on a document but tries to clarify
that his signature was obtained by either fraud or force, the
initial onus of proof is upon him to prove the use of such
force and/or of fraudulent means. The onus can be shifted by
creating a preponderance of probability. In the instant case, I
find that prosecution has not even seriously attempted to
create an inference that the document exhibited is a product
of force/coercion. Relevant it would be to point out that the
informant and her family members are educated persons of
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the locality and they were accompanied by Naren Phukan a
police personnel (read PW5) on 28.09.2005, when force was
allegedly used against them. It is expected that such victims,
whose signature have been forcibly obtained on a valuable
document affecting the life of the daughter (read PW1),
would immediately approach the police station. This opinion
of mine becomes fortified because a police personnel (PW5)
was present, [according to PW1, PW2 & PW3] at the time of
the alleged incident. But, in the instant case, no such
initiative is visible. Such behaviour cannot be said to be
common in the natural course of human event and cannot be
accepted by a prudent man similarly situated. In any view of
the matter, therefore, I conclude that prosecution has not
been able to create a preponderance of probability in its
favour and thus a fatal blow is dealt to the prosecution’s
version.
26. DELAY IN LODGING THE CASE: Another limb of Mrs. D. Sinha’s
submission is that the complaint was lodged after more than 1
year of the last incident of alleged cruelty. It has been
forcefully argued that there is no cogent explanation adduced
for such a long and inordinate delay. To a pointed query on
this point, Mr. T. Gajriel, learned Assistant PP could not
provide any reply far less any satisfactory reply to the delay
occasioned.
27.The position of law is settled that such unexplained and
inordinate delay lead to exaggeration and improvement in
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prosecution’s version. The trial courts have been mandated in
a catena of decision to scan and scrutinize evidence with
greater care and caution where delay is long and not
satisfactorily explained.
28.In STATE OF ANDHRA PRADESH VERSUS M. MADHUSUDHAN
RAO (Arising out of S.L.P. (Criminal) No. 3426 of 2007),
Hon’ble Supreme Court, while appreciating evidence in a case
under Section 498A IPC where there was 1 month delay
observed as under:
——particularly when the First Information Report was
lodged by the complainant more than one month after
the alleged incident of forcible poisoning. Time and
again, the object and importance of prompt lodging
of the First Information Report has been highlighted.
Delay in lodging the First Information Report, more
often than not, results in embellishment and
exaggeration, which is a creature of an
afterthought. A delayed report not only gets bereft of
the advantage of spontaneity, the danger of the
introduction of coloured version, exaggerated account
of the incident or a concocted story as a result of
deliberations and consultations, also creeps in, casting
a serious doubt on its veracity. Therefore, it is essential
that the delay in lodging the report should be
satisfactorily explained. ————————- No
explanation worth the name for delay in filing the
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complaint with the police has come on record. We are
of the opinion that this circumstance raises
considerable doubt regarding the genuineness of the
complaint and the veracity of the evidence of the
complainant (PW-1) and her father (PW-3), rendering it
unsafe to base the conviction of the respondent upon
it.
29. What thus is transparent is that the Supreme Court has
observed that even 1 month un-explained delay in lodging a
case u/S 498A IPC would raise considerable doubt regarding
the credibility as well as genuineness of the complainant’s
version. The delay in institution of the instant case is more
than 1 year. I must also point out that having read and reread
the complaint petition as well as deposition of PW1, I
have become convinced that there has been no proper
explanation adduced for the long and inordinate delay. In the
light of the above decision in Madhusudan (supra), the very
genuineness of the complainant’s version and her veracity is
now necessarily under the scanner.
30.Another noteworthy fact that needs to be now noted is that
the corroborated version of the PW1 PW2 & PW3 is that some
villagers were present and had seen the forcible taking of
signatures. To prove this vital aspect Jayanta Koch, the gaon
burah was examined as PW9. PW9 avers that in presence of
villagers, the parents of Sangita @Kaku signed one document
voluntarily intending thereby to take back their daughter
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with them. In cross examination, he admitted that he was
present during the execution of the document and had signed
it as one of the witness. PW9 further admitted that accused
tried for compromise but PW2 and PW3 did not agree and they
executed and signed exhibit KA voluntarily and took away
their daughter (read PW1).
31. EXAMINATION OF OTHER WITNESSES: It would not be
inappropriate to now study the depositions of PW4, PW6,
PW7, PW8 and PW9. The testimony of Junu Talukdar, PW4, is
hearsay and inadmissible. Hence I do not propose to discuss
his testimony. In so far as testimony of PW6 Merina Devi, PW7
Labanya Sarma and PW8 Jayanta Bora is concerned, the sum
and substance of their deposition is that due to some marital
discord, PW1 left the marital home. In cross examination they
admitted that actual cause behind the marital discord is not
known to any them. Thus their testimony, in the light of what
has come out during cross examination leave no scope for
doubt that their testimony does not help the prosecution in
proving cruelty and/or demand of dowry. I may perhaps
reiterate that PW9 demolished an essential ingredient of the
prosecution’s version by stating that though accused Jatin
Sarmah wanted a rapprochement, the so called victim Sangita
@Kaku did not agree and left the marital home.
32. J OINING THE LOOSE ENDS: I cannot also lose sight of the
conduct of the principal accused inasmuch as it is proved that
he tried for compromise with his wife on both occasions. It has
also come out that the wife (PW1) had no restrictions in her
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movement when she was in the home of her husband. What
has also been proved is that PW1 has tried to improve and
embellish her case and during cross examination, PW1 PW2
and PW3 could not remain steadfast on many material points
further debilitating the prosecution’s version. That apart,
independent witnesses have not supported them. PW5 and
PW9 have deposed in a manner which debilitate if not
demolish the whole prosecution’s edifice
33. CONCLUSON: There are four important aspects in the case at
hand. Firstly, the recording of the statement of the victim
u/S 164 Cr.PC; secondly, the long, inordinate and unexplained
delay; thirdly the failure to prove through even by
preponderance of probability that exhibit KA is a product of
force/coercion; and lastly the lack of support by even one
independent villagers.
34.I do re-remind myself that the statement of the victim was
recorded under Section 164 Cr.PC and therefore, in the light
of the judicial dicta in Ramcharan (supra) and Dhanlal (supra),
testimony of PW1 can no longer become the sole basis for
conviction. Furthermore the Supreme Court in no uncertain
words in Balkram (supra) held that trial courts ought to look
for corroboration and only if there are other circumstances
on record which lend support to the truth that such
testimony can be acted upon.The second and fourth limbs
have already been discussed above and I deem it fit not to
reiterate it here. With respect to the third limb, I would like
to pause now and re-read the evidence of PW1, PW2, PW3
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and PW5 minutely. The incident took place on 28.09.2005.
The complaint case was lodged on 18.10.2006 i.e. more than 1
year after the incident. During this long period of 1 year, the
informant and her parents admittedly did not initiate any
action either before the Court of law or before the police
authorities against the alleged forcible taking of their
signature on a valuable document. I remind myself that Naren
Phukan (PW5) states that he had not seen the use of any
force. Infact on a closer reading what comes out is that while
one hand PW5 has expressed total ignorance about execution
of any document marked as exhibit KA while on the other
PW9 asserts that Exhibit KA was executed and signed
voluntarily by the parties to this proceeding. Thus the
testimony of these two witnesses substantially destructs the
version put forward by PW1.
35. What thus becomes transparent is that the veracity of the
principal prosecution witness is challenged by its own
witnesses more specifically PW5 & PW9. For reasons discussed
in the preceding paragraphs, I have no hesitation whatsoever
in concluding that the very edifice of the prosecution’s version
has been shaken beyond repairs. I therefore conclude that the
prosecution case has been severely dented and its version
does not appear to be true. The charge is therefore “Not
Proved.”
ORDER
In the result and for reasons discussed above, I am of the
considered opinion that prosecution has not been able to
22
prove the charge against any of the accused persons.
Consequently, the accused persons are acquitted and be set at
liberty. Bailor stands discharged. Let a copy of the Judgment
and Order be sent to the District Magistrate Sonitpur as per
Section 363 Cr.PC.
Given under my hand and seal of this Court on this 28th
day of March 2012

Roushan Lal, AJS

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