Page No.# 1/14 GAHC010128432013 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./11/2013 SANJIB GHOSH @ PIKLO S/O SRI HARADHAN GHOSH R/O SUBHASH COLONY NEAR BHARTI SCHOOL UNDER JORHAT POLICE STATION IN THE DIST. OF JORHAT, ASSAM, VERSUS THE STATE OF ASSAM Advocate for the Petitioner : MR. K SAIKIA, MR.D TALUKDAR,MR.P CHOUDHURY Advocate for the Respondent : PP, ASSAM, , Page No.# 2/14 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 03.11.2025 Heard Mr. D. Talukdar, learned counsel, along with Ms. P. Saikia, learned counsel, for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, appearing for the State. 2. The present criminal revision petition has been instituted assailing the Judgment dated 16.10.2012, passed by the learned Sessions Judge, Jorhat, in Criminal Appeal No.6/2012, dismissing the same and thereby upholding the Judgment and Order dated 30.12.2011, passed by the learned Chief Judicial Magistrate, Jorhat, in G.R. Case No.395/2009, convicting the petitioner, herein, under Section 498(A) IPC and sentencing him to undergo Simple Imprisonment for 6 (six) months along with payment of fine of Rs.500/- (Rupees five hundred), in default, to suffer Simple Imprisonment for further 1 (one) month. 3. The prosecution case in brief is that on 12.05.2009, Smti. Bornali Ghosh, lodged an Ejahar before the Officer-in-Charge, Jorhat Police Station, inter alia, alleging therein, that she was married to one Sanjib Ghosh, on 14-12-2007, as per Hindu Rites & Rituals and after about 10(ten) days of their marriage, she was subjected to both physical and mental torture by her husband on not meeting the demand of dowry. It was further alleged in the FIR that her husband had even kicked her on her stomach during her pregnancy. It is further projected in the FIR that for the safety of her life, the informant had gone to her uncle’s house and had stayed there and when she had come back again to her matrimonial house, with the consent of her husband and the assurance, Page No.# 3/14 not to torture her, she was again subjected to torture and even she was tried to set on fire. The police on receipt of the said Ejahar registered the same as Jorhat P.S. Case No.187/09 under Section 498(A) IPC. On conclusion of the investigation police laid a charge-sheet against the petitioner under Section 498(A) IPC. The learned Trial Court on appreciating the materials coming on record, had also framed a charge against the present petitioner under Section 498(A) IPC and the same on being read over and explained to him, he having pleaded not guilty and claimed to be tried, a Trial ensued. During the Trial, the prosecution examined as many as 6(six) witnesses and thereafter the petitioner, herein, was examined under Section 313 CrPC. The learned Trial Court on conclusion of the Trial and on appreciating the evidences coming on record, proceeded vide Judgment dated 30.12.2011, to convict the petitioner, herein, under Section 498(A) IPC and sentenced him as noticed hereinabove. The petitioner, herein, being aggrieved by his conviction by the learned Trial Court vide Judgment 30.12.2011, assailed the same by way of instituting an appeal being Criminal Appeal No.6/2012, before the Court of the learned Sessions Judge, Jorhat. The learned Sessions Judge, Jorhat, on appreciating the evidences coming on record and after considering the grounds taken in the appeal by the petitioner, herein, proceeded vide Judgment dated 16.10.2012, to dismiss the said appeal and thereby uphold the conviction and Page No.# 4/14 sentencing of the petitioner, herein, by the learned Trial Court. Being aggrieved the petitioner has instituted the present proceedings. 4. Mr. D. Talukdar, learned counsel for the petitioner has at the outset submitted that the marriage of the petitioner was solemnized on 14.12.2007, with the informant. He submits that w.e.f. 14.12.2007 till 12.05.2009, the informant, had not lodged any complaint before any authority with regard to the demand of dowry made of her by the petitioner, herein, and of the purported cruelty she was subjected to for not bringing the dowry as demanded. Mr. D. Talukdar further submits that the evidences coming on record reveals that the informant was subjected to torture by the petitioner, herein, on 11.05.2009, and she was also tried to be set on fire. He submits that the informant after lodging the FIR on 12.05.2009, was medically examined by PW-3 on 12.05.2009, and the medical report reveals that there was no medical injury found on the person of the informant but she was found to be pregnant. Mr. Talukdar, has submitted that from the evidences coming on record no material particulars has been disclosed in this regard to the purported demand of dowry by the petitioner, herein, and also the cruelty purportedly suffered by the informant. He submits that with regard to the offence committed by the petitioner, herein, upon the informant on 11.05.2009, the medical opinion having brought on record the fact that there was no injury found on the person of the informant, Mr. Talukdar, submits that the ingredients requisite for the purpose of bringing home a charge against the petitioner under Section 498(A) IPC was not satisfied in the present matter. Page No.# 5/14 Mr. Talukdar has further submitted that in the FIR there was no quantification with regard to the amount of dowry demanded from the informant by the petitioner, herein, and for the first time during her deposition in the Trial, she had deposed that the petitioner, herein, had demanded Rs.1,00,000/- (Rupees one lakh) from her on 11.05.2009. Accordingly, he submits that the conviction of the petitioner, herein, under Section 498(A) IPC, would mandate an interference. 5. Ms. A. Begum, learned Additional Public Prosecutor, has submitted that the evidences adduced by the prosecution witnesses having brought on record the fact that there was a demand of dowry from the informant by the petitioner, herein, and failure to satisfy the said demand, she being subjected to cruelty and the deposition adduced by the other prosecution witnesses in support of the said fact having corroborated the evidence adduced by the informant, the same not being disclosed during their cross-examination, the learned Trial Court had not committed any error in holding the petitioner, herein, to be guilty of the offence under Section 498(A) IPC. She accordingly, submits that the conviction of the petitioner, herein, by the learned Trial Court under Section 498(A) IPC, would not mandate any interference. 6. I have heard the learned counsel for the parties and also perused the materials available on record. 7. The learned Trial Court vide Judgment dated 30.12.2011, upon appreciating the evidences coming on record had drawn the following conclusions; “16. I have carefully sifted the evidence on record and after careful appreciation of the evidence on record, I find that the prosecution witnesses have implicated the accused Sanjib Ghosh Page No.# 6/14 with the offence. 17. "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man can not get away with it because truth suffers some infirmity when projected through some human process."(1978) 4 SSC 161. 18. There are some discrepancies, exaggeration in the statements of the P.Ws. for that reason, the evidence cannot be discarded. Much importance should not be given to minor discrepancies, they can be over looked unless, discrepancies go to the root of the matter to impeach the basic version of the case. Further, version here is supported by probabilities. 19. In the case of State of Himachal Pradesh -Vs- Lekhraj (2000) 1 SSC 247, the Hon'ble Apex Court has distinguished minor discrepancies from contradiction and held that minor discrepancies or variation in evidence does not make the case doubtful. 20. By and large, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as it video tap, it is replayed on the mental screen. 21. The powers of observation differs from person to person. What one may notice, another may not. An object or moment might emboss it is image on one person's mind, whereas, it might go un-noticed on the part of another. 22. By and large people cannot be accurately recall the conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human as tap-recorder. Again, it depends on the time sense of individual which varies from person to person. 23. Before embarking upon the sustainablity of the conviction of the accused, it would be just and proper to have a glimpse of the legal position for deciding an offence against a woman. Equality before law, as enshrined in the Article 14 of the Constitution of Page No.# 7/14 India, is the epitome of the fundamental rights guaranteed to the citizen. The Constitution also prohibits discrimination on grounds of religion, race, castes, sex or place of birth. Article 21 of the Constitution confers a fundamental right to all the citizen of the country to live with dignity, free from exploitation. In order to implement these commands of the Constitution, various legislations have been enacted. To uphold the rules of law and with an avowed intention to provide an atmosphere where the citizens can lead a dignified life and to protect them from any kind of discrimination, more particularly gender based discrimination, the Indian Penal Code is being amended time to time. Similarly, introduction of Section 498 A in the Indian Penal Code vide Amendment Act No.46 of 1983 can be said to be the beginning of a new era to protect weak and docile married women, who were subjected to cruelty and harassment by their husbands and relatives. It was followed by insertion of Section 304 B in the Penal Code providing severe punishment for the murder of a woman for non-fulfilling the demand of dowry. Parallely, Section 113 A and 113B were also inserted in the Evidence Act, 1872 to draw presumptions in the matter of abatement to suicide by a married woman and dowry death. In my opinion, these provisions must have been introduced so that offenders of crime against woman may not escape the rigour of law due to loose knots in the prosecution. Latest in the series is the enactment of the Protection of Women from Domestic Violence Act, 2005 to protect and curb widely prevalent offences of domestic violence. Despite amendments to the existing laws and enactments of various statutes, the graph of crime against women is still rising, without any abatement. Statistics show that the women are still exploited, molested, raped and discriminated and acquittal rates are abysmally high for such offences. Hence, it can be said that women are still at the receiving end not because of inadequate laws, but prima facie, due to lack of its implementation in proper spirit. 24. In my considered opinion, the thought provocating observations made by the Apex Court in regard to an offence of Page No.# 8/14 sexual assault would be applicable with equal force for an offence of physical assault and domestic violence upon a woman. 25. Going through the merit of the case, 1 find that the victim has given vivid description of the incident and after careful appreciation of the evidence on record, I find that all the prosecution witnesses implicated the accused person with the offence. After going through the entire evidence on record and aforesaid discussion, I find and hold that the prosecution has come out with flying colours in bringing home the guilt against the accused person Sanjib Ghosh U/s 498(A) of the I.P.C. beyond all reasonable doubt and I am constrained to hold that the accused Sanjib Ghosh is to be convicted U/s 498 A of the I.P.C. Therefore, I convict accused Sanjib Ghosh U/s 498 A of the 1.P.C” Basing on the said conclusions, the learned Trial Court had convicted the petitioner, under Section 498(A) IPC and sentenced him as noticed, hereinabove. 8. The Appellate Court, on an appeal being instituted before it, on appreciating the evidences coming on record, proceeded vide Judgment dated 16.10.2012, to draw the following conclusions; “15). In the instant case, the victim has vividly described about the whole incident of torture caused upon her by the accused demanding dowry since after few days of her marriage. Her husband also sold her ornaments. Even though her brother-in-law Arup Biswar and Sankar Das and maternal uncle Biren on being informed by her dissuaded her husband not to torture however he again continued the torture and ultimately the torture on 11-05-2009 reached the extreme point as on that day she was not only physically assaulted for the dowry but the accused also tried to set her on fire. She also claimed about payment of rupees one lakh to her husband. 16). However, there is some contradiction between her Page No.# 9/14 testimony with the 161 Cr.P.C. statement. Now the question is whether for these contradictions her evidence is to be looked with doubt. The ejahar which is filed by the informant shows that she vividly described every incident of torture meted upon her by the accused in demand of dowry since after her marriage till 11-05-2009 except payment of rupees one lakh to the accused. As the ejahar which is lodged by the victim herself just on the next day of last torture caused by husband corroborates the victim's testimony on all the material point so I am of the opinion that contradiction between the testimony of the victim to that of 161 Cr.P.C. statement cannot create doubt regarding evidence divulged by the victim. In many cases it is seen that the investigating officers often record 161 Cr.P.C. statement in perfunctory manner and does not record the statement of the victim in the verbatim. 17). In the instant case, as the ejahar corroborates the testimony of the victim in all material particulars so I do not feel it proper to distrust the testimony of the victim for some contradiction with the statement u/S. 161 Cr.P.C. which is lapse on the part of the investigating officer Apart from this, it is also noticed from the record that there is 164 Cr.P.C. statement of the victim in this respect corroborating the version of victim but the same is left to be brought on record by prosecution during examination of the victim. 18). Defence though tried to raise doubt by pointing out to delay in lodging the ejahar yet it is seen that on the next day of last torture (torture on 11-05-2009) ejahar was lodged. She was admitted at the hospital for two days as described in her testimony. So, delay of one day in lodging the ejahar cannot be fatal and it cannot negate the cogent and reliable version of victim. The victim was eight months pregnant at the time of filing of this case which is clear from the medical report. Nothing could be shown why this woman who is expecting a baby would falsely blame her own husband at this advance stage Page No.# 10/14 of pregnancy depriving herself and the newly borne baby from getting care of her husband. 19). The plea about false implication as the accused who stayed with the wife at her parents residence wanted to return back to his parents house to which the victim had objection is not at all acceptable. No pregnant woman of eight months pregnancy would concoct such a story only because of the fact that her husband's demanded to return back to his own paternal house. Apart from this, the accused did not examine himself or any witness regarding his plea of false implication for the above reason. Mere suggestion does not amount to proof. 20). Defence also tried to raise doubt regarding the credibility of the testimony of the victim by pointing out to the fact that the doctor who is examined by the prosecution as PW-3 did not find any injury on the person of the victim. But while going through the medical report [Exhibit-2) I have noticed that the medical report is itself contradictory relating to the fact of sustaining injury. In the report [Exhibit-2] though it is mentioned that no external injury was found yet in the opinion column it is mentioned that injuries are recent and caused by blunt object. In view of the above contradictory medical report I do not feel it proper to disbelieve the testimony of the victim relating to physical assault caused upon her by the accused. Our Hon'ble Gauhati High Court in 2008 (1) GLR 111 held that even if the medical evidence does not support the prosecution case yet on the basis of solitary evidence of the victim conviction is possible if testimony of victim inspires confidence. In the instant case, there is firm and reliable evidence of the victim. Considering her cogent and trustworthy evidence I have come to the conclusion that there is nothing to doubt the testimony of the victim merely for non supporting her evidence by doctor. 21). Now let me come to the point raised by the defence that for non-examination of vital witness the prosecution case suffers. It is true that vital witnesses Sankar Das and Arup Page No.# 11/14 Biswas who came for persuading the accused not to torture the victim was failed to be examined by the prosecution. They were not cited as charge-sheeted witnesses. Now the question is whether for non-examination of these witnesses which is a lapse on the part of prosecution the poor victim should suffer? Obviously, the answer is no as because cogent, trustworthy version of victim cannot be looked with doubt for non-examination of these witnesses by the I.0. 22. The two sisters of informant namely Smt. Mitali Biswas [PW-4] and Smt. Rupali Dutta [PW-5] fully corroborated the fact about physical and mental torture caused upon the victim by the accused since 10/12 days after the marriage in demand of dowry. These two witnesses are the sisters of victim and the victim being residing at her parental house with the husband obviously they got the opportunity to visit the parental house and noticed incident of torture on the victim by the accused and hence their knowledge about torture on the victim by the accused in demand of dowry cannot be looked with doubt. However, though they depicted themselves as eyewitnesses to the occurrence of 11-05-2009 and claimed that they were present at that time yet the victim did not corroborate about their presence at her house on that particular day. So these witnesses cannot be held to be the eyewitness to the incident of 11-05-2009. 23) These witnesses PW-4 & PW-5 also though divulged about coming to the house of PW-1 and dissuading the accused from doing torture upon the victim and assurance given to them by the accused not to repeat such torture in future yet the victim nowhere corroborated the said fact. So, the evidence of these witnesses relating to witnessing the incident of 11-05-2009 and about requesting some days earlier to that day the accused to dissuade from torturing the victim cannot be relied upon. Their evidence relating to payment of rupees one lakh to the accused is also not found to be reliable being improved Page No.# 12/14 version to that of statement before the I.O. Though there are some minor discrepancies and exaggeration in the statement of PW-2, PW-4 & PW-5 to that of 161 Cr.P.C. statement yet their evidence that they had the knowledge about the torture caused upon the victim could not be disbelieved in any way for such discrepancies and exaggeration. 24). Evidence of witness Sri Biren Das (PW-2) also brings corroboration to the testimony of the victim relating to torture caused upon the victim by accused on 11-05-2009. 25). It is already discussed that except payment of dowry money to the accused, the remaining portion of victim's testimony is most cogent and reliable. Some minor exaggerations and discrepancies with 161 Cr.P.C. statement cannot make her evidence doubtful. Some discrepancies is natural because no one can exactly say what was spoken by her few months ago to the I.0. Some exaggeration in the testimony of victim relating to payment of a particular amount cannot bring her whole testimony doubtful.” Basing on the said conclusions the learned Appellate Court proceeded to dismiss the appeal, thereby upholding the conviction of the petitioner, herein, by the learned Trial Court. 9. This Court has perused the conclusions drawn by the learned Trial Court as well as by the learned Appellate Court in the matter. On a perusal of the conclusions so drawn, this Court finds that the conclusions were so drawn basing on a due and proper appreciation of the evidences coming on record and there is no infirmity found by this Court with regard to such conclusions drawn by the learned Trial Court as well as by the learned Appellate Court in the matter. The learned counsel for the petitioner has not raised any issue with regard to any jurisdictional error in passing of the impugned Judgments. Page No.# 13/14 Accordingly, this Court is of the view that the impugned Judgments would not mandate any interference. 10. The conviction of the petitioner, herein, under Section 498(A) IPC stands affirmed. 11. Having drawn the above conclusions, this Court notices that the FIR in the matter was lodged on 12.05.2009. Thereafter around 16(sixteen) years have lapsed since the date of commission of the offence in the matter by the petitioner, herein. Considering the long lapse of time occasioning in the matter and also the fact that the petitioner has been litigating in the matter for the last around 16(sixteen) years, initially before the Trial Court, thereafter before the Appellate Court and presently before this Court in the present proceedings. 12. Accordingly, this Court is of the considered view that the petitioner, herein, is entitled to be extended the benefit under the provisions of the Probation of Offenders Act, 1958. It is seen that the learned Trial Court while proceeding to sentence the petitioner, herein, had noticed the provisions of the Probation of Offenders Act, 1958, but considering the nature of the offence committed by the petitioner in the matter, the benefit thereunder was denied to be extended to the petitioner. No specific reasons have been assigned as to why the petitioner, herein, was not entitled to be extended with the benefit of the provisions under the Probation of Offenders Act, 1958. 13. Accordingly, for the reasons noticed, hereinabove, this Court while maintaining the conviction of the petitioner, herein, holds that it is a fit case wherein the petitioner, herein, is eligible to be extended the benefits under the said Act of 1958, and the sentence is modified to the effect that instead of sending the petitioner to jail, he be given the Page No.# 14/14 benefit under Section 4 of the Act of 1958. This Court having only modified the sentencing with regard to imprisonment of the petitioner, herein, and the fine as imposed by the learned Trial Court, not having been interfered with, the petitioner would be liable to deposit the fine amount. 14. In view of the above discussions, it is directed that the petitioner, herein, will file 2(two) sureties to the tune of Rs.20,000/- (Rupees Twenty Thousand)each, along with a personal bond before the learned Trial Court, and undertake, to the effect that the petitioner shall maintain peace and good behavior during the period of 1(one) year from the date of filing of the bond. The aforesaid bond be filed by the petitioner before the Trial Court within a period of 1(one) month from today, along with the deposit of the fine amount as imposed by the learned Trial Court, i.e., the Court of the learned Chief Judicial Magistrate, Jorhat, vide the Judgment dated 30.12.2011, in default of depositing the fine amount, the petitioner to suffer Rigorous Imprisonment for 6(six) months. 15. With the above observations and directions, the present Criminal Revision Petition stands disposed of. 16. Send down the records of the case to the Trial Court along with a copy of this order for information and necessary action. JUDGE Comparing Assistant