John Pegu vs State Of Assam

Heard Mr. T.J. Mahanta, learned Sr. Counsel for the petitioner and Ms. S. Jahan, learned Addl. P.P., Assam for the State.

This revision petition is directed against the judgment and order dated 30.11.2009, passed by the learned Sessions Judge, Dhemaji, in Crl.A. No.

5(2)/2009. By the said judgment, the learned Sessions Jusge, dismissing the appeal filed by the petitioner, upheld the judgment and order dated

26.02.2009, whereby the learned CJM, convicted the petitioner under Section 498A IPC and sentenced him to rigorous imprisonment for one year and

fine of Rs. 1000/- with default stipulation.

As per prosecution case, PW-1 Elijabeth Kaman Pegu was married with the petitioner on 22.02.2006 and after marriage, the PW-1 was subjected

to physical and mental torture by her husband and on 27.05.2007, the petitioner married another girl. Therefore, an FIR was lodged by the sister-in-law

of the PW-1. On the basis of the said FIR, police registered a case and after usual investigation, submitted charge sheet against the present petitioner

under Section 498A IPC and eventually he stood trial before the learned CJM.

In course of trial, charge was framed against the present petitioner under Section 498A IPC, to which he pleaded not guilty. Five witnesses were

examined by the prosecution to establish the charge. The petitioner also examined one witness in his defence and on appreciation of evidence, learned

Trial Court convicted the petitioner under Section 498A IPC and awarded sentence as indicated above.

Aggrieved by the said judgment of conviction and sentence, the petitioner preferred an appeal before the learned Sessions Judge, and the learned

Sessions Judge, by the impugned judgment dismissed the appeal and upheld the conviction and sentence of the petitioner.

Aggrieved by the judgment and order of the learned Sessions Judge, the petitioner preferred the instant revision petition.

Mr. T.J. Mahanta, learned Sr. Counsel submits that the prosecution witnesses substantially improved their version before the court contradicting

their previous statement and there was no legal evidence sufficient to bring home a charge under Section 498A IPC against the petitioner and as such,

the impugned judgment of conviction and sentence warrants interference by this Court. Contention of the learned Addl P.P., Assam, Ms. S. Jahan is

that the evidence brought on records were sufficient to establish a charge under Section 498A IPC and therefore, the impugned judgment has not

suffered from ay illegality requiring interference.

Perusal of the records transpires, that out of the five witnesses examined, prosecution case primarily hinges on the oral testimony of PW-1, PW-2

& PW-3.

PW-1, the alleged victim, wife of the petitioner, stated in her evidence that after the marriage, she remained together with her husband for 20 days

and thereafter her husband left for Kolkata, the place of his posting. After three months of marriage, the petitioner demanded money over phone from

Kolkata for purchasing a car. As she expressed inability to bring money from her parental house, the accused did not receive her phone and in the

month of December, 2006, he came home and assaulted her. She further stated that after staying only two days, he again left for Dibrugarh. Though,

she went to Dibrugarh and happened to meet her husband on the road, he misbehaved her. Thereafter the petitioner again left for Kolkata and in the

month of May, 2007, he came back on transfer and started living in his home. But he did not live with her as husband and wife and stared to neglect

her. The petitioner again asked her to bring Rs. 10,00,000/- and told that if she wants to stay happily with her husband, she had to bring Rs. 10,00,000/-

and on the next day on the pretext of going to Kolkata, he left the house and later on she came to know that the petitioner was in Dibrugarh jail. She

also stated to have known from the elder brother of the accused that the accused married again with one Rupanjali Doley. Her statement was

recorded under Section 164 CrPC. In the said statement,, she did not state anything about the accused demanding money over phone from Kolkata

after three months of marriage. She stated in her previous statement under Section 164 CrPC, that in the month of December, 2006, when the

accused came home again he demanded her to bring money from her parents and after staying two days, he left the house and went to Dibrugarh.

Thereafter, the petitioner again came back home in the month of May, 2007 and on 24.05.2007, the petitioner asked her to bring Rs. 10,00,000/- if she

wants to live happily with the accused. Though, in her statement recorded under Section 164 CrPC, she stated, that the accused demanded money in

the month of December, 2006, in her evidence in court she did not state about any demand of money in the month of December, 2006. Rather, in her

evidence, she told about demand once after three months of marriage and thereafter in the month of May 2007. During cross examination, PW-1

stated that she was not aware abut lodging of FIR by PW-2 and evidently lodging of the FIR by PW-2 came to her knowledge only after arrest of the

petitioner at Dibrugarh.

According to PW-2, the sister-in-law of the PW-1, in the month of February, 2007, when the PW-1 came to her home, she told her that the

accused demanded Rs. 10,00,000/- for purchasing vehicle. She also stated that when the accused came second time from Kolkata in the month of

May, she did not contact him. The FIR was lodged by this witness No. 2. Although she stated in her evidence that in the month of January or

February, PW-1 while visiting her parental house, told her about the demand of money and she lodged the FIR thereafter, she did not mention in the

FIR, about any demand of money by the accused. According to PW-3, after three months of marriage, the PW-1 told him that the accused demanded

Rs.10,00,000/- and assaulted her. But, PW-1 never stated that she informed PW-3 or PW-2 about the demand of money.

What therefore crystallizes from the oral testimony of these three witnesses is that PW-1, the alleged victim, stood contradicted with her own

statement recorded under Section 164 CrPC, inasmuch as, as per her deposition in court, the demand was made initially over phone after three months

of marriage from Kolkata and the second time demand was made in the month May, 2007. Whereas, in her previous statement under Section 164

CrPC, she stated that first demand for money, in order to purchase vehicle was made in December, 2006 and did not state about any demand from

Kolkata, whereas in her evidence, her statement was quite different. As per the evidence in court, the first demand was made from Kolkata over

phone after three months of marriage and thereafter in the month of May or after May, 2007 again the accused demanded money.

Though, PW-2 & PW-3 stated that PW-1 told them about demand of money, but PW-1, never stated that she ever informed her brother or sister-

in-law about such demand. Thus, if the oral testimony of these two witnesses and the PW-1 are read along with the previous statement of PW-1,

recorded under Section 164 CrPC and the FIR, it would appear that the testimony of these witnesses were totally inconsistent and contradictory so far

the demand of money and also the time when such demand was made, and as such, the oral testimony of the PW-1, PW-2 & PW-3 with regard to

demand of money appears to be hardly worthy of inspiring confidence. There was not even a whisper in the evidence, that the PW-1 was subjected to

torture or harassment for demand of money. According to PW-1, the victim herself stated, that in the month of December, the accused assaulted her

and told her to leave his company. Except this version of PW-1, that on one occasion, she was assaulted by accused and asked her to leave

matrimonial house, there is no trustworthy evidence at all, showing that the PW-1 was subjected to any harassment for fulfilling the demand of money.

The accused has been convicted under Section 498A ICP. In order to establish a charge under Section 498A IPC, prosecution has to prove that

the victim wife was subjected to cruelty and the term ‘cruelty’ has been defined in the explanation to Section 498A ICP, which reads as

follows:

“Explanation. â€" For the purpose of this section, ‘cruelty’ means â€

(a) any willful 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.â€​

As per the above definition, the first part dealt with the willful conduct of the accused, which must be of such nature, as is likely to drive the

woman to commit suicide or to cause grave injury or danger to life or limbs. The second part deals with the harassment to the woman with a view to

coercing her or any person related to her to meet any unlawful demand for any property or valuable security etc. In the instant case, there is

absolutely no evidence on record to show that the PW-1 was harassed to meet any unlawful demand of money. Therefore, the evidence on record is

not sufficient to invoke Clause-(b) of the explanation to Section 498A IPC. In order to constitute cruelty within the meaning of clause (a) of the

explanation to Section 498A IPC, the willful conduct or act of the accused must be of grave and continuous in nature. Evidently, the statement of PW-

1 is that on one occasion, the accused assaulted her and asked her to leave his company. Except this vague and omnibus statement, that on one

occasion the accused assaulted her, no other evidence of any specific allegation of torture or harassment was brought on record. One stray or isolated

incident of assault or a day to day family feud cannot be considered as ‘willful act’ of the nature as contemplated in Clause (a) of the

explanation to Section 498A IPC. Therefore, the entire evidence brought on record is grossly inadequate to establish the allegation of cruelty within

the meaning of Section 498A IPC.

Since the statute has given the expression ‘cruelty’ a specific meaning in the context of offence under Section 498A IPC, it has to be

construed as per intendment of the statute. A single incident of assault or matrimonial dispute or family feud is not sufficient to constitute cruelty

within the meaning of explanation to Section 498A IPC. The factum of cruelty to the wife, within the meaning as defined in Section 498A IPC having

not been proved, one cannot be convicted under Section 498 A IPC. Therefore, the evidence as well as facts and circumstances brought on record,

crystallizes that the prosecution evidence was grossly inadequate to establish the charge under Section 498A IPC beyond reasonable doubt and as

such, conviction and sentence of the accused/petitioner under section 498A IPC is not sustainable. Accordingly the impugned judgment is set aside

and the revision stands allowed. Bail bond, if any stands discharged.

Send down the LCR.