Judgment · High Court · 2012

On 16-09-1999, one Smt. Lakhimai Borah lodged an ejahar before t 3. he Bihpuria police station stating that she is the wife of accused Sri Kamal Bor ah. The first information disclosed that after their marriage Smt. Lakhimai Bora h and Sri Kamal Borah had lived as husband and wife for a period of about 7(seve n) years during which, one daughter was born. The informant alleged that her hus band and her in-laws had mentally and physically harassed her. According to the informant, her husband was lured by the other accused persons to his house and t hereafter he was not allowed to return to her parents house where they were resi ding. When the informant went to the house of her in-laws on 15-09-1999 at about 6.30 p.m. to bring back her husband, the accused persons physically assaulted h er causing serious injuries on her person. The said first information was treate d as FIR and on the basis of the same, Bihpuria P. S Case No. 341 of 1999 under Section 498(A) IPC was registered.

#4. The police investigated the case and thereafter submitted charge sheet under Section 498(A) IPC against the following 8(eight) persons, includin g the 4(four) respondents herein: 1. 2. 3. 4. 5. 6. 7. 8. Sri Kamal Borah Sri Bogiram Borah Sri Lakhidhar Borah Sri Gopal Borah Sri Jiban Borah Smti. Hiteswari Borah Smti. Putu Borah Smti Phuleswari Borah

#5. In GR Case No. 1199 of 1999 arising out of the aforesaid police case, the learned trial Court framed charge under Section 498(A) IPC against all the accused persons, to which they pleaded not guilty and claimed to be tried.

#6. The prosecution examined as many as seven witnesses. The defence side also examined one witness. Moreover, the statements of the accused persons were recorded under Section 313 Cr. P.C. The defence plea was of total denial.

#7. The learned Chief Judicial Magistrate, Lakhimpur on perusal of t he evidence adduced and other materials on record acquitted the present responde nts from the charge under Section 498(A) IPC on benefit of doubt and set them at liberty. In so far the other four accused persons were concerned, no case for c onviction under Section 498(A) IPC was found but the learned trial Court held th at the prosecution was able to prove the case against them under Section 323/34 IPC beyond all reasonable doubt. Accordingly, the learned trial Court convicted the above four accused persons namely, Sri Bogiram Borah, Sri Kamal Borah, Sri L akhidhar Borah and Sri Gopal Borah under Section 323/34 IPC and sentenced them t o pay a fine of Rs. 500 (Rupees five hundred) each, in default, to under go one month’s simple imprisonment.

#8. ts. Hence this appeal against the acquittal of the present responden

#9. Heard Mr. B. B. Gogoi, learned Additional Public Prosecutor, Ass am for the appellant State. Also heard Mr. B. Banerjee, learned counsel appearin g for the respondents.

#10. While Mr. Gogoi presses for reversal of the finding of acquittal in so far the respondents are concerned, Mr. Banerjee on the other hand, submit s that there are no materials to justify conviction of the respondents under Sec tion 498(A) IPC. He further submits that when the main four accused persons had been acquitted of the charge under Section 489(A) IPC but convicted under Sectio n 323/34 IPC, the question of convicting the present respondents under Section 4 98(A) IPC simply does not arise. He also refers to and relies on the following t wo decisions of the Hon’ble Supreme Court to contend that when two views are rea sonably possible and the acquittal is based on one such view, the same should no t be interfered with: (1) ndra Pandey; and AIR 2005 SC 119 ( Para 13 and 14); State of West Bengal Vrs. Kailash Cha (2) T. Subramanian Vrs. State of T.N. (2006) 1 SCC 401 ( Para 17);

#11. nce adduced is considered necessary. To appreciate the rival submissions, a brief survey of the evide

#12. PW-1 is the informant, Smt. Lakhimai Borah. In her deposition, s he stated that she had married accused Sri Kamal Borah follow a love affair, whi ch was not approved by the members of both the families. They solemnized their m arriage at Itanagar where they stayed back as because accused Sri Kamal Borah wo rked in a private firm at Itanagar. One daughter was born out of their wedlock. In the month of April, 1999, they came back to stay in the house of her in-laws. During their stay, the family members of accused Sri Kamal Borah demanded dowry , both in cash and in the form of land. As she was unable to meet their illegal demands, she was subjected to verbal abuse by her in-laws. The situation reached such a serious turn that she was driven out from the house of her in-laws but h er husband at that time protested and he also walked out of his house. Thereafte r, they stayed for about 15/20 days in the house of the parents of PW-1. Accused Sri Kamal Borah returned to his house on being called by his family members and thereafter he did not return back. On 15-09-1999, PW-1 along with her minor dau ghter went to her in-laws house to bring back her husband. When she reached her in-laws house, she was physically assaulted by her father-in-law, Sri Bogiram Bo rah and all the other accused persons. Hearing her hue and cry, two of the neigh bours, namely, PW-3 Sri Sonaram Borah and PW-4 Sri Putul Dutta came to the place of occurrence whereafter the accused persons stopped assaulting her. Thereafter , she lost her sense and was lying on the courtyard when her brother Sri Jagat B orah PW-2, who had come with an auto rickshaw after hearing about the incident, took her to Bihpuria for her treatment. PW-2, Sri Jagat Borah, the brother of PW-1, corroborated the sta 13. tements of PW-1. He stated that accused Sri Bogiram Borah demanded dowry of cash and land if she wanted to live with them. Due to her failure to meet the illega l demands, his sister and her husband could not stay in the residence of the hus band. But after about 20 days of living in their house (house of PW-2), the accu sed Sri Kamal Borah went back to his house but he did not return back. When his sister went to her in-laws house to bring back the accused, she was dragged out of her house to the courtyard where she was assaulted. One of the neighbours Sri Putul Borah, PW-4 informed him about the incident, following which he rushed to the place of occurrence in an auto rickshaw where he found his sister lying on the courtyard. He took his sister to the police station where she filed the FIR. He stated that his sister sustained injuries on her head, chest, hand, back and legs. PWs 3 and 4, namely, Sri Sonaram Borah and Sri Putul Dutta are t 14. he neighbours and also the eye witnesses. They had rushed to the place of occurr ence where they heard the hue and cry. PW-3 specifically stated that he saw Sri Gopal Borah and Sri Kamal Borah beating PW-1. PW-5 is Dr. Jatindra Mohan Bora, t he doctor who examined PW-1 on 15-09-1999. He found several injury marks on the person of PW-1. In his injury report, which was exhibited, PW-5 opined that PW-1 sustained the injuries which were caused by blunt weapon and although the injur ies were simple in nature, those were caused by hitting or beating by blunt obje cts. PW-6 is the Investigating Officer, who investigated the case Sub Inspector Sri Sanjib Saikia. PW-7 is another police officer, who had submitted the charge sheet before the Court.

#15. -1. He admitted hitting PW-1 out of provocation. From the defence side, accused Sri Lakhidhar Borah deposed as DW

#16. These were the evidence before the leaned trial Court. Except th e bald statements made by the PW-1 in her deposition that the members of her in- laws family had made a demand on her to bring Rs. 1 lakh in cash and one (cid:28)pura (cid:29) of cultivable land from her parents and that due to her inability to meet such d emand, she was abused by the members of her in-laws family and that on the day o f the incident she was assaulted by her father-in-law and all the other accused persons, there is no other material to implicate the respondents with the offenc e alleged. There is no cogent and reliable evidence to show that the respondents were involved in the verbal and physical abuse or assault on the informant, PW- 1. Under such circumstances, the learned trial Court on a cumulative assessment of the materials on record took the view that the prosecution had failed to prov e beyond all reasonable doubt the involvement of the respondents in the alleged commission of the offence under Section 498(A) IPC. He, therefore, acquitted the m from the said charge on benefit of doubt.

#17. Considering the well known principles governing an appeal agains t acquittal and also the legal principles laid down in the above two decisions, I am of the view that the present is not a fit case where the acquittal of the r espondents should be interfered with. No doubt, there may remain lingering doubt about the conduct and involvement of the respondents in the verbal and physical harassment caused to the informant. But suspicion and doubt cannot take the pla ce of hard evidence and an acquittal granted after a full length trial cannot be brushed aside and until and unless one can come to the definite finding that th ere can be no other conclusion except the involvement of the respondents in the commission of the offence. In the present case it is not so. In view of what has been discussed above, I find no reason to in 18. terfere with the acquittal of the respondents by the learned trial Court. The ap peal is without merit and the same is accordingly dismissed.

#19. No cost.