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GAHC010181102011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 194/2011
1:PRADIP DAS @ PRADIP SARKAR
S/O LT. SUDHANSU SARKAR R/O VILL- DIKRAIJAN, NAPAM, DIST.
SONITPUR, ASSAM.
VERSUS
1:SMTI UMA SARKAR and ANR
W/O PRADIP SARKAR R/O VILL- COLLEGE ROAD, KOLIBARI, P.S.
BISWANATH CHARIALI, DIST. SONITPUR, ASSAM.
2:THE STATE OF ASSA
Advocate for the petitioner: Mr. N.N. Upadhaya.
Advocate for the respondents: None.
BEFORE
HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing and judgment: 01.03.2019.
JUDGEMENT AND ORDER (ORAL)
This revision is preferred against the judgment and order dated 19.04.2011, passed by the
learned Addl. Sessions Judge, FTC, Biswanath Chariali in Criminal Appeal No.18(S-4)/2010, dismissing
the appeal and upholding the judgment and order dated 20.09.2010, in C.R. Case No.202/2005,
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passed by the learned Judicial Magistrate 1st Class, Biswanath Chariali.
2. Briefly stated, the case of complainant Smti Uma Sarkar is that she filed a complaint petition
before the SDJM, Biswanath Chariali on 31.12.2005, alleging inter alia that she got married with the
petitioner on 08.12.2002, as per the Hindu Rites and Customs but due to the constant demand for
dowry coupled with the torture on the part of her husband, their married life could not run properly.
She was tortured for non-payment of money and dowry articles in the marriage. It is alleged that due
to such torture, she was compelled to leave the house of her husband on 27.04.2005 and as
thereafter the effort for compromise was failed, the family members of the complainant approached
the accused for return of the stridhan articles that were given on marriage but the same was denied
and refused by the husband and her family members and thus with an allegation that her husband
has misappropriated her stridhan property, she filed the complaint which was registered as C.R. Case
No.202/2005, under Section 406 of the IPC.
3. The accused person (petitioner herein) faced the trial and denied the charge. In support of the
case, the complainant examined four witnesses and the defence also adduced three witnesses in
support of plea of denial that in fact no such dowry article was given in marriage as contended by the
complainant and hence there is no question of misappropriation. At the conclusion of the trial, the
learned trial Court hold the accused guilt under Section 406 of the IPC and sentenced him to S.I. for
one year and a fine of Rs.5,000/- in default S.I. for two months.
4. On the appeal so preferred by the accused/petitioner also failed. Hence the present Revision
Petition has been preferred challenging the legality and validity of the aforesaid orders of the Courts
below.
5. Heard Mr. N.N. Upadhaya, learned counsel for the petitioner but none appears for the
respondents despite the name is shown in the cause list. As the matter is old pending one and listing
of the case is known to the engaged counsel and he intentionally did not turn up before the Court, so
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the matter is taken up for hearing.
6. The learned counsel for the petitioner has vehemently contended that both the Courts below
have failed to appreciate the evidence on record in proper perspective of law and facts and have
arrived at an erroneous findings as to the guilt of the accused/petitioner. It has also been submitted
that the marriage between the parties survived only for about five months and the complainant
herself returned to her parental home and filed two cases against her husband one after another,
under Section 498A of the IPC and under Section 125 of the CrPC and subsequently the present one
under Section 406 of the IPC. Both the cases filed by the respondent wife dismissed on contest but
the present case ended at conviction of the present petitioner without their being any proper
evidence.
7. Referring to the evidence on record it has been contended that there is absolutely no evidence
on the part of the respondent side to establish as to what sort of articles were given in the marriage
and about such entrustment to the accused person of the dowry articles given in the marriage. On the
other hand, on the strength of the search warrant, the respondent wife has took the articles which
were belonged to the petitioner and in fact no such articles were given in her marriage as claimed in
her claim petition.
8. The evidence of complainant and all her witnesses are identical, who even could not say about
the exact articles that were given in the marriage and no any documents which is executed as a
custom in the marriage of Bengali families like ‘Patipatra’ to show the articles given in the marriage is
produced or proved by the respondent/wife. That being so, the learned trial Court has wrongly arrived
at the guilt of the accused without their being any proper evidence on such material aspect.
9. On the next it is also submitted that the learned trial Court as well as the appellate Court has
failed to appreciate the defence evidence that was adduced by the petitioner in the Court of trial.
According to the accused/petitioner, no such articles were given in the marriage and the
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respondent/wife come with some simple household articles like bedding, etc. in a small vehicle and
there was no such valuable articles given in the marriage. The Court however did not accept the
defence evidence and has simply accepted the verbal assertion of the complainant side about giving
of stridhan articles in the marriage. It has been pointed out that the defence in order to prove that the
furniture etc. was purchased by the accused/petitioner, has produced vouchers regarding the
purchase vide Exhibit-C but the same was also not considered by the learned Court. It has been
contended that said Exhibit-C pertains to the articles/furniture purchased by the petitioner which were
seized by the I.O. in connection with the case.
10. I have considered the submission of learned counsel for the petitioner and also gone through
the evidence on record.
11. All the witnesses of the respondent/wife has given similar statement as regard the torture upon
the respondent/wife by the petitioner and that she returned to her father’s house and the
accused/petitioner refused to return the articles given in the marriage.
12. On the other hand, according to the defence evidence, no such articles were give in the
marriage of the respondent/wife, although a long list of article has been shown in the case and in fact
the articles which were seized in connection with the case, all are not belong to the respondent/wife.
The valuable articles like furniture including dressing table etc. were purchased by the petitioner, for
which he has appropriate vouchers vide Exhibit-C.
13. On careful scrutiny of the evidence on record it is found that although the respondent wife had
given a list of articles which were stated to be given in the marriage (annexed with the complaint
petition) but not a single piece of documents/receipts/challans etc. have been produced before the
Court to show that those articles were purchased for the purpose of marriage to give in her marriage.
The respondent/wife even could not reveal as to wherefrom these furniture/ornaments etc. were
purchased. The vital documents ‘the Patipatra’ is also not prepared and produced in this case to show
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the exact articles that were given in the marriage and the same was ever entrusted to the petitioner.
All such evidence of the respondent wife is given in a vague manner without any supporting
documents to show and to prove that these sort of articles were given in the marriage and the
accused/petitioner was entrusted with those articles.
14. On the face of the record, such a matter of entrustment to the present petitioner of those listed
articles is not at all proved and in such eventuality the question of misappropriation will not come.
15. The testimony of the complainant wife is also found to be exaggerated version who has
developed her case as suitable to her. In her complaint petition, she has stated that due to the torture
by her husband/petitioner, she was compelled to leave his house as on 27.04.2005 and the accused
did not take care of her thereafter but in course of trial, in her evidence she has stated that she came
to her house due to the death of her cousin brother Santi Parbat and since then she has not been
taken back by her husband. Further in her cross-examination she has also admitted that she came to
her parental house with due consent of her husband. Such a serious contrary statement indicates her
falsity of plea and evidence.
16. In the parlance of law, one is to prove his case as asserted in the complaint petition/FIR, as the
case may be by requisite evidence.
17. Section 403 of the IPC describes dishonest miss-appropriation of property as below:-
“Section. 403 Dishonest misappropriation of property – Whoever dishonestly misappropriates or
converts to his own use any movable property, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.”
Section 405 of the IPC speaks about criminal breach of trust as below:-
“405. Criminal breach of trust. – Whoever, being in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in
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touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal
breach of trust”.
Section 406 of the IPC prescribes the punishment for criminal breach of trust as below:-
“406. Punishment for criminal breach of trust-Whoever commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine, or with both”.
18. Accordingly in an offence under Section 406 IPC, it must be proved that the beneficial interest
of the property in respect of the alleged offence is alleged to have been is vested in some person and
the accused held the property. The word entrustment in the section is important and unless there is
entrustment, there can be no offence under this section. The basic requirement to bring home the
charge of criminal breach of trust, the requirement is to prove conjointly: (1) entrustment and (2)
whether the accused so entrusted by dishonest intention or not misappropriated the same or
converted it to his own use.
19. As discussed above, in the present case, the complainant failed to prove such entrustment
within the purview of law beyond all reasonable doubt and the accused petitioner has given a
plausible explanation of the occurrence by way of defence evidence which also deserves
consideration.
20. In view of above, it can be held that the learned trial Court as well as the appellate Court have
failed to appreciate the evidence in proper perspective of law and facts which call for interference.
The complainant/wife has already recovered certain amount of articles on the strength of search
warrant also.
21. Resultantly the impugned judgment and order passed by the learned Trial Court, which was
affirmed by the Appellate Court, is hereby quashed and set aside.
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22. Return the LCR along with a copy of judgment immediately.
JUDGE
Comparing Assistant
