In The Court of Judicial Magistrate First Class, Dhansiri, Sarupathar

G.R. Case No. - 305/16

U/S 498 A/323 of I.P.C.

State

Vs.

Senti Saikai

Present : Siddhartha Bora , M.A., AJS.

Judicial Magistrate First Class

Dhansiri Sub-Division, Sarupathar

Arguments for Prosecution : Duleswar Hazarika, Addl. APP

Arguments for Defence : Dilip Sharma, Advocate

Evidence recorded on : 28/09/2016, 07/10/2016, 25/11/2016, 02/12/2016,

09/12/2016, 21/02/18.

Arguments Heard on : 21/02/18

-Judgment delivered on : 28/02/2018

JUDGEMENT

Prosecution Story :

1. The prosecution story as unfolded in the FIR lodged by one Smti Momi
Saikia, wife of Sri Senti Saikia, resident of Tengani Chabishgharia gaon,
Barpathar police Station, Golaghat district, Assam, in brief, is that on
15.08.2016 at about 11.30 pm in the night, the accused Sri Senti Saikai
 rebuking her with obscene words assaulted him with iron hammer after
slapping and kicking, for which she sustained severe injuries on her body.
Afterwards, while the accused trying to burn her pouring kerosene on her
body, she shouted for help and the neighbours coming to her house saved
her life from the wrath of the accused. The accused had been harassing her
physically and mentally since earlier.

Investigation :

2. On receipt of FIR, the police registered a case being Borpathar P.S. Case
No.- 105/16 under Barpathar Police Station. The Investigating Officer Sri
Padma Kanta Das carried out the investigation in the matter. During the
course of investigation, the I.O. recorded the statement of the witnesses u/s
161 Cr.P.C, prepared one sketch map of the place, where the offence was
allegedly committed. The I.O arrested the accused person, got the statement
of the victim recorded u/s 164 Cr.P.C and after completing the investigation,
finally submitted the charge sheet finding sufficient materials against the
accused persons for the offences u/s 498(A)/323 of IPC.

Appearance of the accused person :

3. On receipt of summons, the accused persons were called upon to enter trial
and upon appearance of the accused, copies of relevant documents U/S 173
were furnished to the accused persons in compliance with Section 207 of
Cr.P.C.

Charge against the accused person :

4. Considering the relevant documents attached with the case records and
hearing both the parties, my Ld. predecessor found incrementing materials
 against the accused persons to frame charge under section 498A/323 of IPC
of IPC and accordingly charge was framed U/S 498A/323 of IPC which was
read over and explained to the accused to which the accused persons pleaded
not guilty and claimed to be tried.

Witness examined and Documents Exhibited :

5. In order to bring home the charge, the prosecution side examined 8 (eight)
witnesses- PW1, PW2, PW3, PW4, PW5,PW6,PW7 including the I/O.

Examination of accused u/s 313 Cr.P.C.

6. The accused persons have been examined and their statements were
recorded u/s 313 Cr.P.C. The accused persons denied all allegations levelled
against them.
7. The defence side did not adduce any evidence.
8. Both the parties put forwarded their intensive arguments in favour of their
plea and after hearing the intensive arguments put forwarded by both the
learned counsels appearing on behalf of their respective parties, and after
going through all the evidences on records and documents attached with the
case records, my predecessor framed the following points for determination.

Points for determination :

1. Whether the accused person on 25/08/2016 at Tengani

Chabisgharia gaon under Borpathar police station and also on prior
occasion subjected the victim, Momi Saikia to cruelty and thereby
committed the alleged offence punishable u/s 498(A) IPC ?
2. Whether the accused person, on 25.08.2016 at Tengani
Chabisgharia gaon under Borpathar Police Station voluntarily
caused hurt to the the victim Momi Saikia and thereby committed
an offence u/s 323 IPC?

Discussions, Decisions and Reasons thereof :

Evidence of Prosecution :

3. Evidence of PW1, Angkita Surin:

P.W. 1, Momi Saikia who is the victim and informant of the case and
the wife of the accused Senti Saikia has deposed that. The accused Senti
Saikai is her husband. In the year she married the accused. They have three
girl child. On 15/08/2016 at about 11 pm in the night, the accused
demanded money as a dowry from her. But she replied negatively, the
accused with iron hammer hit her on her back. The accused then dragged
her holding on her hairs into the rooms of his home. He tried to pour
kerosene oil on her body. But she tried to save her fleeing away from there
and by stepping up the Chang(a raised platform) at her house. She then
shouted for help. Hearing her shouting, one of her neighbour auntie namely
Dinti Gogoi rushed to the place of occurrence. But the accused rebuked her
auntie and so disappeared from the place of occurrence. Her auntie then
called her parents. Her family members including her mother immediately
came to her house and then took her from the acused house to her parent’s
house. She further stated in her deposition that she saw the iron hammer by
which the accused tried to hurt her, at court today. She also saw the gallon
of kerosene oil by which the accused tried to pour kerosene on her body at
the court. She lodged the FIR on the next day of the occurrence.xt.1 is the
Ejahar she lodged in the police station and Ext.1(1) is her signature. The
police seized the iron hammer and the gallon of kerosene oil and she singed
there. Ext.2 is the seizure list and Ext.2(1) is her signature. Her treatment and
medical examination was done in Sarupathar Hospital by the police. Due to
the assault by the accused, she got injured on her back, feet and knees. MR.
Ext.A is the iron hammer and MR Ext.B is the gallon of kerosene oil.

During her cross-examination, she testified that she got married with
the accused after a love affairs. It is a fact that the seized articles are the
used articles of the accused and her house. It is also a fact that since last two
years the accused and she have been living at the land given by her mother’s
family. It is not a fact that she used to insult the accused as live-in-son-in-
law. It is also not a fact that she used to quarrel with the accused. It is also
not a fact that on the day of occurrence, a heated arguments took place in
between her and the accused took place due to calling her husband as live-in-
son-in-law. It is also not a fact that she did not state before the police about
the assault by the accused with iron hammer. It is not a fact that the accused
did not try to pour kerosene oil on her body. It is also not a fact that she got
injured as a result of jumping from the Chang(a raised platform). It is not a
fact that she did not state before police that her auntie came to the place of
occurrence. It is a fact that after the departure of police from the place of
occurrence, the accused slept at his house. It is not a fact that she brought
false allegation against the accused. It is a fact that the seized articles were
given to the police by herself.

She was again re-examined on 21.02.2018.

On re-examination she stated that on 28.09.2016 she deposed before
this court. She further stated that after coming out from jail hazot the
accused and she have been living happily and peacefully along with their
three girl child. There is no any enmity and quarrel in between them. She
does not want to continue this case. She has three girl child and the elder
one is of 11 year of age.
 During her cross-examination on 21.02.2018 she testified that while on
the earlier day she was deposing before this court , she was very angry and
so she stated before this court many this exaggeratedly. She stated falsely on
that day before this court due to her furious state of mind that the accused
with an iron hammer assaulted her while she refused to give him dowry he
demanded. It is falsely stated on that day that the accused dragged her
holding on her hair into his house. It is also falsely stated on that day that she
jumped up to the Chang(a raised plateform) of their house while the accused
tried to pour kerosene oil. She further stated that on that day, in fact,
nothing was happened, just a quarrel in between them. Now there is no any
quarrel or fight in between them. They are now peacefully enjoying their
lives. If the accused is acquitted she does not have any complain. She now
want the accused to get acquitted from the charge levelled against the
accused.

4. Evidence of PW2, Mrs. Moloya Gogoi :

The informant is her sister and the accused is brother-in-law.

15.08.2016 at about 12 pm in the night, while her auntie informed her that
the informant and the accused were involved in quarrel, she went there. But
the accused rebuked her and so left out the place of occurrence. On the next
day the informant told her that the accused assaulted her with an iron rod
and tried to pour kerosene oil on her body. The informant lodged this case on
the following day of occurrence. Later on the police seized the iron hammer
and the gallon of kerosene oil and she signed on the seizure list. Ext.2 is the
seizure list and the Ext.2(1) is her signature. The seized articles were seen by
her in the court on the day of her deposition.
During her cross-examination, she testified that she does not know
why there took place a quarrel in between the informant and the accused.
She does not see the seized articles used by the accused. While she signed in
the seizure list, she saw no any content there.
5. Evidence of PW3, Kapahi Gogoi :

The informant is her daughter. The accused is her son-in-law. On

15.08.2016 at about 12 pm in the night, she was informed by Dipti Gogoi
after going to her home that the accused assaulted the informant and she
immediately reached the house of the informant. But the accused rebuked
her and so, she taking the informant along with her, left the house of the
accused. After arriving at her house the informant told her that the accused
assaulted her.

During her cross-examination, she stated that she did not tell before
police about the informantion given by by Dipti Gogoi about the assault of
the informant by the accused. It is a fact that she does not see the assault of
the informant by the accused.

6. Evidence of PW4, Dipti Gogoi :

She knows both the accused and the informant. They are both
husband and wife. On 15.08.2016 at about 12 pm in the night, she heard hue
and cry from the house of accused. She then went to the house of the
accused. As soon as she reached there the informant grasped her and told
that the accused assaulted her. Afterwards the accused lifting a gallon of
kerosene oil said that he would burn the informant. She then forbade the
accused not to do that and then she left the place of occurrence.
During her cross-examination she testified that she after reaching the
house of the informant saw that the informant was being worn clothes by the
accused. It is not a fact that she deposed falsely that the accused assaulted
the informant in front of her. It is not a fact that the accused did not lift the
gallon of oil .

7. Evidence of PW5, Dhiren Phukan :

 He knows both the accused and the informant as husband and wife.
He heard hue and cry at the house of the accused at about 10 pm in a night
almost two months before. On the next day he heard that there took place a
quarrel in between the accused and the informant.
Cross-examination was declined by the defence side.

8. Evidence of PW6, Prajnan Kumar Brahma:

9. On 16.08.2016 he was on duty as O/C at Borpathar police station. On that
day when the informant lodged an ejahar at the police station. He registered
the FIR and then took himself the charge of investigation. The statement of
the informant was recorded at the police station and then visited the place of
occurrence, drew the sketch map. An iron hammer and a gallon of kerosene
oil were seized by him at the place of occurrence and prepared the seizure
list. Recorded the statement of the witnesses under section 161 of Cr.P.C. He
the took the informant to the Sarupathar Police Station for medical
examination and then collected the medical report. The accused was then
arrested by him and sent to the court. Thereafter after completing the
investigation, he submitted the chargesheet against the accused under
section 498(A) of IPC. The Ext.2 is the seizure list and the Ext.2(3) is her
signature. The Ext.3 is the Sketch map and Ext.3(1) is his signature. The
Ext.4 is the Chargesheet and Ext.4(1) is his signature.

During his cross-examiantion, he deposed that the informant while stated

before him did not tell that the accused assaulted her with iron hammer and
tried to pour kerosene oil on her body. She also did not state before him the
fact that her auntie also went to the place of occurrence. The seized articles
were given by the informant. He did not see the seized articles today in the
court.

10. Evidence of PW7, Paban Kumar Gogoi:

 On 16.08.2016 at about 8.15 pm in the night he examined the
informant Momi Saikia aged 20 years, wife of Sri Anil Saikia of village
Sabishgharia Tengani under Borpathar Police Station escorted by UBC 324
Dipti Borah, at Sarupathar Civil Hospital as senior Medical and Health Officer.
On examination he found the following –

1. Sweeling in both the left and right leg with pain

2. Swelling with pain in backside of the body
3. Complain of body pain.

The injuries were simple in nature, caused by blunt weapon.

The duration of injury was of about 24 hours.
Ext.5 is his medical report and Ext.5(1) is his signature.

The cross-examined was declined by the defence side.

Appreciation of evidence :

11. After going through the entire evidences on records both oral and
documentary including the materials placed before me mentioned above, let
us see first whether there are ingredients of section 498A IPC in the alleged
offence committed by the accused . It is necessary to peruse the said penal
section in its entirety. The same has been reproduced verbatim 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 any valuable security or is on account of
failure by her or any person related to her to meet such demand.”

12. Thus, to bring home an offence u/s 498A IPC , the prosecution is to prove
that firstly, a woman has been subjected to cruelty as contemplated in
Clause (a) and Clause (b) to explanation of Section 498AIPC. Secondly, that
the woman is or was married. Thirdly, that the cruelty has been practised by
her husband or his relatives. But not every type of cruelty attracts the section
498A IPC. The cruelty or harassment to wife must be forced her to cause
bodily injury to herself or to commit suicide or the harassment is to compel
her to fulfil the illegal demand for dowry or property. Section 498A IPC
contemplates inter alia that such a conduct besides being wilful must result in
the likelihood of driving the woman to commit suicide or to cause grave injury
or danger to a life, limb or health.

13. In this instant case, the accused, husband of the prosecutrix, as mentioned
in the Ext.1, the Ejahar, on the day of occurrence at about 11.30 pm in the
night assaulted her by slapping and kicking and also with an iron hammer
and tried to pour kerosene oil lifting a gallon on his hand after rebuking her
with obscene words. She sustained several injuries on his assault. She even
 also mentioned in the Ext.1 that the accused had been harassing her
physically and mentally. PW1, the informant and the victim of this case also
stated the same thing in her deposition before this court. But she added also
that the accused assaulted with iron hammer after rebuking, slapping and
kicking her and also tried to burn her taking a gallon of kerosene oil on his
hand while she replied negatively of the demand of the accused for money as
a dowry. So, the informant added an extra version of the offence committed
by the accused in comparison to her ejahar. Now, as per the section 498(A)
of IPC, the informant must stated in her Ejahar the physical and mental
harassment by the accused on the pretext of demanding money for dowry.
But in the Ext.1 i.e. the Ejahar, after a careful perusal, it is crystal clear that
there is no such instance of harassment of physical and mental harassment as
a result of demanding money for dowry. Perusal of the evidences of the
prosecution witnesses PW2, PW3,PW4,PW5 and PW7 transpires that not a
single PW out of these prosecution witnesses deposed evidence implicating
the accused under section 498(A) of IPC i.e. the informant was assaulted on
the pretext of demanding dowry by the accused, they only deposed that
they heard that the accused had assaulted the informant but not for
demanding dowry. Since PW1, the informant at the time of re-examination
by the prosecution totally discarded the evidence adduced by her earlier in
the court stating that what she deposed before this court earlier out of anger
and misunderstanding with the accused in her cross-examination, so I find
her evidence contradictory and not consistent with the evidence adduced by
the other prosecution witnesses and therefore is not trustworthy.

14. When the evidence adduced by the informant itself is not reliable , I
therefore do not proceed to consider the evidence adduced by the other
prosecution witnesses considering the fact that the evidence adduced by
other witnesses are all hearsay in nature. Though perusal of the medical
evidence herein Ext.5 gives us some light as to simple injury on the body of
the informant, this medical evidence only does not corroborate the version of
the prosecution story. It must be supported by the evidence adduced by the
 other prosecution witnesses. Only on the basis of medical evidence, an
accused cannot be held guilty under the section 498(A) of IPC, it must be
supported by the ocular evidence adduced by the prosecution witnesses.

15. From the discussion of the evidence adduced by the prosecution witnesses
PW2, PW3, PW4, PW, PW6 and PW7, it is evident that there took place a
quarrel in between the accused and the informant on the day of occurrence
but the sporadic quarrel does not itself meant the commission of the offence
under section 498(A) of IPC. In Sushil kashinath Raimale vs State, 2006
CrLJ 589(Bom) it was held that Sporadic incidents of ill-treatment by
husband do not attract definition of cruelty as these were aimed at
pressurising wife for divorce and not aimed at pressurising her to satisfy
demand for property.

16. Thus, there is absence of evidence regarding grave injuries or danger to life,
limb, or health of the woman as contemplated by Explanation (a) and there
was also absence of evidence regarding demand for dowry harassment. This
indicates that the cruelty as contemplated by Explanation (b) of s. 498A IPC
has not been proved by the prosecution beyond reasonable doubt. So the
accused person cannot be convicted under s. 498A IPC. So the first point
for determination is negative.

17. Now, to decide the last point of determination let us see whether the acts of
the accused person attract the section 323 IPC. As stated in the FIR, the
Ext.1, the accused person assaulted PW1, the informant with an iron
hammer on her backside and tried to pour kerosene oil from a gallon lifting by
his hand and hearing hue and cry from the house of the informant and the
accused, PW2, PW3 and PW4 went to the place of occurrence. On reaching
there, they only saw that a quarrel in between the accused and the informant
was being taken place. But not only a single witness from the prosecution
 side saw the accused assaulting the informant. Seeing the accused lifting with
an iron rod and a gallon of kerosene oil does not by itself meant to be an
assault by the accused. Normally, quarrel or fight often takes place in
between husband and wife due to some dissimilarities of opinion. Due to
such quarrel or fight, perhaps on the day of occurrence, the informant got
simple injury as stated by PW7, the medical and health officer of this case.
But that does not meant to convict the accused under section 323 of IPC.
More particularly when the informant herself on her evidence adduced before
this court stated that due to some misunderstanding and anger she lodged
the ejahar in the police station now she is living with the accused happily
along with her three girl child. Since no any direct evidence adduced by the
prosecution witnesses is found in the evidence on record, therefore, the
evidences of PW2,PW3, PW4, PW5 and PW6 and Ext.1 are not corroborated
with the Ext. 2, the medical report. Therefore , the accused person cannot be
convicted u/s 323 IPC as well.

18. Thus, from the discussion made above , this court finds that prosecution has
failed to prove the commission of the offences under section 498A/323 of
IPC beyond all reasonable doubt. It is pertinent to mention herein that in a
criminal trial, the prosecution is expended to adduce evidence that can
successfully shoulder the burden of proving the guilt of the accused beyond
all reasonable doubts. The prosecution evidence must be such as to enable
the trial court to act upon it with conviction and must inspire the confidence
of the trial court to come to one plausible conclusion only that the accused
can be convicted for the alleged offence.

19. The accused person is therefore acquitted of the offence punishable under
section 498A/323 of the Indian penal Code and he is set at liberty forthwith.
20. Bail bond remain extended for another 6 (six) months as per section 437(A)
of the Cr.P.C.

21. Accordingly, the case is disposed of on contest.

Given under my hand and seal of this court in presence of both sides
on this 28th February, 2018.

( Siddhartha Bora )

Signature

Judicial Magistrate First Class

 APPENDIX

1. PROSECUTION WITNESSES :

PW 1 – Mami Saikia, the informant

PW 2 – Malaya Gogoi

PW 3 – Kapahi Gogoi

PW 4 – Dipti Gogoi

PW 5 - Dhiren Phukan

PW 6 – Padma Kanta Das(I/O)

PW 7 - Pawan Kumar Gogoi( M/O)

1. B) List of Exhibits :

Ext.1 - F.I.R.

Ext.5 - Medical Report.

Ext.3 - Sketch map.

Ext.4 - Charge sheet

Ext2. Seizure List

( Siddhartha Bora )

Signature

Judicial Magistrate First Class