G.R. Case No.

470/16

::IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, NALBARI::

PRESENT : = Smti. K. R. Deka, A.J.S.

Ref: G. R. Case No.470/16

State

-vs-

Brajen Sarma ..…….. Accused person.

u/s-498(A) IPC

EVIDENCE RECORDED ON : 14.09.17, 06.12.17 & 19.02.18.

ARGUMENTS HEARD ON : 27.04.18.

JUDGMENT DELIVERED ON : 10.05.18.

ADVOCATES APPEARED :

For the State : Mr. R. Patowary, A.P.P.

For the Accused : Mr. P. Sarma, Advocate

JUDGMENT

1. The case of the prosecution, in a nut shell, is that an FIR was filed
on 05.04.16 in the Ghograpar PS by the informant Swapna Devi against her
husband Brajen Sarma and Mrinal Sarma alleging inter alia that she was married
13 years ago with accused Brajen Sarma as per social rites and out of the
wedlock, two sons were born. That, after the marriage, both the accused persons
demanded dowry and subjected her to physical and mental torture and on
19.03.16, she was assaulted on account of dowry demand and was forced to
leave her matrimonial house due to which she took shelter in her mother's
house. Accused Mrinal Sarma who is her brother-in-law promised to maintain her

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well and brought her home, but after bringing her home, they again subjected
her to more tortures and threatened to kill if she was unable to fulfill the
demands for money. Thereafter, on 04.04.16, informant returned back to her
mother's house. Hence, the case.

2. Upon receiving the FIR, Ghograpar P.S. registered Ghograpar P.S.

Case No.49/16 u/s-498(A) IPC and started investigation. On completion of
investigation the I.O filed charge-sheet against the accused Brajen Sarma u/s-
498(A) IPC.

3. In pursuance of the process issued, the accused person appeared

before the court and on his appearance the copies of the case as per the
mandate of law u/s-207 Cr.P.C. were furnished to the accused person. Thereupon
prima facie case was found against the accused person u/s-498(A) I.P.C and the
charges of the offence u/s-498(A) I.P.C. was framed, read over and explained to
the accused person and he was asked whether he will plead guilty of the offence
charged or claimed to be tried. He had pleaded not guilty and claimed to be
tried.

4. During the trial, the prosecution side examined five witnesses

including the M.O. 313 Cr.P.C. statement of accused person was of complete
denial. The defence side declined to adduce any evidence.

5. I have heard the arguments of both the sides.

POINTS FOR DETERMINATION

• Whether the accused Brajen Sarma on many dates after the

marriage of informant Swapna Devi and accused Brajen and on 19.03.16
and 28.03.16 at village Dihjari under Ghograpar PS being the husband of
the informant Swapna Devi subjected her to cruelty which was of such a
nature as to cause grave injury to her life or limb and coerced her to meet
unlawful demand and thereby committed an offence punishable u/s
498(A) I.P.C.

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DISCUSSION, DECISION AND REASONS

6. PW.1 is Swapna Devi, informant. She deposed that informant

Brajen Sarma is her husband. On 12.05.2003, she was married with the accused
person as per social rites. She peacefully cohabited with him for 6 months.
Thereafter, the accused person started to demand money from her parents to
spread his business and proposed to return the money later on. Informant
brought some money from her parents' house, but the accused person never
returned back the money. Thereafter, two sons were born to her. After a few
days, accused person's sister eloped with the accused person's brother in law
due to which accused assaulted her with bed stand. Thereafter, again he
demanded money from her. Last year, on 19th March, accused demanded her to
bring money from her mother's house. When she refused to give money for the
accused persons' sister's marriage, again she was subjected to marpit. She
returned to her parents' house on 22.03.16. On 28.03.16, her brother in law
brought her home because her sons examinations were due to start. On the
same night, accused assaulted her because she failed to bring money. Thereafter,
again on 29.03.16 she returned from the house of the accused person and filed
this case. Ext.1 is the FIR and Ext.1(1) is her signature. She was medically
examined by the police.

7. In her cross-examination, she deposed that she has carried her

marital life for 13 years. The FIR was written by someone else and she only put
her signature. She does not know the name of the police personnel who wrote
the FIR. The name of the scribe or police personnel is not stated in the FIR. She
has forgotten on which date accused had demanded how much amount. She also
forgotten on which date how much amount she has handed over to accused. It is
not a fact that before the I.O she did not state that accused assaulted her with
bed stand when his sister had eloped. There are houses of many persons
surrounding the house of the accused. The house of Manabendra Sarma, Khiroda
Devi and Diganta Rajbongshi are nearby. On the western side, there is a
backyard. No other person was present when the accused person demanded
money. On 22.03.16 and 29.03.16, there were no one present during the
incident. Her elder son is reading in class-VIII. Her sister's marriage was on

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19.04.16. It is not a fact that accused told her that they will go to her sister's
marriage after son's exams due to which there was an altercation between them.
It is not a fact that she had demanded Rs.20,000/- for her sister's marriage and
when the accused expressed his inability to give the amount, she addressed him
as “son of dog” and gave him blows with bloom stick. It is not a fact that she
returned to her parents' house after assaulting her husband and out of shame
and guilty, she has not returned back. She has not given any bichar for last 13
years. It is not a fact that accused has not demanded money and assaulted her
and she has filed this case falsely.

8. PW.2 is Anita Devi. She deposed that informant is he daughter and

the accused Brajen Sarma is her son in law. Her daughter was married to the
accused person about 13 years ago. After 6 months of the marriage, accused
person used to constantly demand dowry and used to torture her daughter and
assaulted her. They were called and they somehow pacified them. Last year, in
the month of March, her daughter was again assaulted by the accused due to
which she returned back to their house. After a week, informant's brother in law
came to take her back due to their sons exams. Thereafter, she was again
subjected to marpit and again she returned back and filed this case.

9. In her cross-examination, she deposed that accused did not carry

out any assault in front of her and they stayed as perfect couple in their
presence. Before marriage, accused did not demand any cash from them.
Accused did not demand any money in her presence. It is not a fact that accused
did not assault her daughter and she has falsely filed this case.

10. PW.3 is Rajib Sarma. He deposed that informant is his sister and
accused Brajen is his brother in law. They were married about 13-14 years ago.
After the marriage, the accused person used to demand money from his sister.
They had given all possible help to the accused for his business. In the year
2016, their sister returned back to their house. Hence, they had to seek help of
law.

11. In his cross-examination, he deposed that his younger sister

married was 15-20 days after his elder sister returned to their house. It is not a
fact that before police he did not state that accused person demanded money
and tortured the informant. It is not a fact that as the accused person's sons

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exams were due, the accused person forbade his wife to attend the marriage due
to which there was a fight between his sister and the accused and his sister
returned back to their house. He has forgotten the date on which cash was
demanded from his sister. It is not a fact that the accused did not demand any
money from his sister.

12. PW.4 is Ajit Sarma. He deposed that he knew the informant and
the accused person. He does not know anything about the incident. He later on
heard from police that informant Swapna had filed a case.

13. Defence declined to cross-examine this witness.

14. PW.5 is Dr. Sushanta Deka. He deposed that on 05.04.16, he was

working in Ghograpar PHC as MO (Ayur). On that day, at 11 am, he examined
one Swapna Devi, daughter of Late Durlav Sarma of village Pachim Kathalmua,
PS Tihu under Dist. Nalbari bearing emergency OPD No.22/16. The patient was
escorted by WPC Mayarani Dihingiya. On examination, he found the following
injury-

No external injury at the time of examination. In his opinion- No

injury seen. Ext.2 is the Injury report and Ext.2(1) is his signature.

15. Defence declined to cross examine this witness.

16. These are the materials on record.

17. I have carefully perused the evidence on record. Now the

provisions of Sec. 498(A) I.P.C. read as under :
498(A) IPC: Husband or relative of husband of a woman
subjecting her to cruelty; Whoever being the husband or 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 willful conduct which is of such a nature as is likely to

drive the women 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

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view to coerce 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.

18. Now, let us come to the evidence on record and let us examine
how far the evidence of the prosecution witnesses could bring home the guilt of
the accused person of offence u/s-498(A) IPC. For this, let us look into the
evidence of PW.1. The oral testimony of PW.1 informant Swapna Devi reveals
that she was married to accused Brajen Sarma as per social rites. The couple
cohabited for 13 years and had two male sons out of the wedlock. Informant
stated that after 6 months of the marriage itself, the accused person had forced
her to bring money from her parents' house in order to help in his business. He
has also promised to return the money. Accordingly, the informant brought some
money from her parents' house. The accused never returned the same back. If
her evidence is believed to be true, the assurance of the accused person to
return back her money to her parents will not fall strictly under the ambit of
section 498(A) IPC. Be that as it may, the informant never approached police due
to accused demanding money from her parents. Had the accused person really
demanded dowry, informant would definitely have approached the police, but her
not doing so, brings the prosecution case under the cloud of doubt. She stated
that after birth of her two sons, one day, accused person's sister had eloped with
her own brother-in-law due to which accused one day, blamed her and assaulted
her with bed stand and thereafter, he also demanded money from her. After this
incident also, the informant did not approach the police station to file a case
regarding assault and dowry demand. Hence, these omissions of the informant
also leaves much doubt in the prosecution case. Thereafter, she stated that in the
month of March, 2015 again the accused person demanded money from her
parents. When she stated about her parents inability to her husband because her
sister was going to be married soon, she was assaulted by the accused person
and was chased out of her matrimonial house on 22.03.16. But, after this
incident also, the informant did not visit the nearest police station to report a
case of dowry demand. Rather she went away to her mother's house and it was
only on 28.03.16, after her brother-in-law went to her mother's house that she
came back because of her sons exams. Thereafter, she stated that on the night

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of her return to her matrimonial house on 28.03.16, the accused person again
assaulted her in order to force her to bring money, hence, she left the house of
the accused on the next day i.e. 29.03.06, but from the FIR it is revealed that
she did not go to the nearest police station even on the same day. Rather, she
went to Ghograpar PS on 05.04.16 and lodged case alleging physical and mental
tortures upon her due to dowry demand. Why the informant did not approach
the nearest police station on 29.03.16 is not explained by her in her evidence
and neither in her FIR, Ext.1. Upon going through the FIR, it is seen that the
informant has implicated both her husband as well as her brother-in-law for
demanding dowry upon her and torturing her. But, in her evidence, she has only
implicated her husband accused Brajen Sarma for demanding dowry and
torturing her. Therefore, it is revealed that the informant has tried to exaggerate
her FIR. So far as the medical evidence is concerned, I have gone through the
Medical report Ext.2 of PW.1 informant and found that there is complain before
the Medical Officer of alleged physical assault upon her on 04.04.16, but as per
her evidence is concerned, she has categorically stated that she had left her
husband's house on 29.03.16 itself. Therefore, it is presumed that she has not
met her husband on 04.04.16 and therefore the question of alleged physical
assault by the accused on 04.04.16 cannot arise. Apart from the same, the
Medical Officer has not found any external injury in her person upon examining
her in Ghograpar BPHC on 05.04.16. Therefore, the whole version of the accused
assaulting her is not supported at all by the medical evidence on record. Now,
coming to the evidence of PW.2 Anita Devi who is the mother of the informant.
She stated that dowry was demanded by the accused from her daughter almost
after 6 months of the marriage and assaulted her physically by the accused due
to the dowry demand. She stated that she has pacified both the parties after
visiting their house, but she did not lodge any police case alleging dowry demand
and assault upon her daughter. Apart from this, on carefully scanning the
evidence of PW.2, it is found that she is a reported witness. Further, nothing has
been demanded by the accused as per her own admission before her. Hence, the
story of the informant that the accused demanded money from her parents is
uncorroborated by PW.2. PW.3 Rajib Sarma who is the brother of the informant,
he in the same tune as his mother has stated that accused had demanded
money from his sister. He has stated that he had tried to help the accused as per
his ability, but he has not stated that accused person had ever demanded money

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from him for his business or to meet dowry demand. Hence, the evidence of the
informant also has not corroborated by PW.3. PW.4 is a reported witness. He has
no personal knowledge about the incident.

19. In the present case, the complainant alleged that the accused
person assaulted her for dowry demand and she was also physically assaulted for
not fulfillment of the demand, but on every occasion of such demand instead of
going to nearby police station promptly to report the matter, she has awaited for
a period of 7 days and then filed this case. No explanation for delay in filing the
FIR has come on record. Hence, I am of the opinion that circumstance raises
considerable doubt regarding the genuineness of the FIR.

20. Hence, it is held that no explanation forthwith, the reason of

inordinate delay in lodging the FIR danger of introduction of concocted, coloured
version as a result of deliberation and consultation cannot be ruled out. In the
result, it is held that the prosecution has failed to prove the guilt of the
accused person beyond all reasonable doubt.

21. In the backdrop of the entire evidence on record and taking into
account the facts and circumstances of the case, the accused Brajen Sarma is
acquitted of the offences u/s-498 (A) IPC and he is set at liberty forthwith.

22. Bail bond will stand cancelled after six months.

23. Judgment is written in separate sheets and delivered in open

court.

Given under my hand and seal of this court on this the 10th day of
May, 2018.

(Smti. K.R. Deka)

Chief Judicial Magistrate,
Nalbari.

Dictated and corrected by me

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(Smti. K.R. Deka)

Chief Judicial Magistrate,
Nalbari.

A P P E N D I X:

Witnesses for the prosecution

P.W.1- Swapna Devi, Informant.

P.W.2- Anita Devi.
P.W.3- Rajib Sarma.
P.W.4- Ajit Sarma.
P.W.5- Dr. Sushanta Deka, M.O.

Witnesses for the defence

None

Prosecution Exhibits
Ext.1 - FIR

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Ext.1(1) - Signature of informant.

Ext.2 - Injury report.
Ext.2(1) - Signature of M.O.

Defence Exhibits
None

(Smti. K.R. Deka)

Chief Judicial Magistrate,
Nalbari.

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