Oral Judgement & Order:
This Criminal Appeal is directed against the judgment and order dated 12.5.2008 passed by the learned Sessions Judge, Darrang Mangaldai in Sessions Case No.97(DM)06 (GR Case No.193 of 2006) U/Ss 498-A/304-B/34 IPC, whereby the accused appellants were convicted and sentenced to undergo RI for 2 (two) years and to pay fine of Rs. 2,000/- in default of payment therefore, to suffer further rigorous imprisonment for 2(two) months each, for the offence U/S 498-A/34 IPC. Being aggrieved with the conviction and sentence as aforesaid, the appellants preferred this appeal.
2. I have heard Mr. R L Yadav , learned counsel for the accused appellants. Also heard B.J.Dutta,, learned Additional Public Prosecutor for the State of Assam. Perused the impugned Judgment and the evidence adduced by the prosecution and the record.
3. The gist of the prosecution case is that on 14.3.2006, one Shri Gangadhar Deka lodged an FIR with the O/C Mangaldoi Police Station, alleging that his brother’s daughter Anima Deka (deceased) was given marriage to Sri Dipak Deka (appellant no.2) about 11 years ago and since her marriage, both appellant nos. 1 and 2 and mother-in-law of the deceased used to commit torture upon her both physically and mentally at her matrimonial home on the demand of dowry and ultimately they caused her death on 12.3.2006.
4. On receipt of the FIR a case was registered as Mangaldoi P.S.Case No.103/2006 U/S 304 (B) IPC and thereafter Investigating Officer started in
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estigation and arrested both the appellants and later on they were released on bail. Both the accused appellants were charge-sheeted. 5. The learned Chief Judicial Magistrate Darrang, Mangaldoi took cognizance of the offence in GR Case No.193/06 on the basis of the aforesaid police case and transferred the file to the Court of Judicial Magistrate, First Class, Mangaldai for disposal, who committed the case to the Court of Sessions, Darrang Mangaldoi under the provisions of Section 209 CrPC.The learned Sessions Judge took cognizance of the offence and framed the charge U/S 498-A/304(B)/34 IPC as against the accused appellants to which they pleaded not guilty. 6. In order to establish the charge the prosecution examined altogether 11 (eleven) witnesses and defence side also examined 3(three) witnesses in support of their case. The plea of defence is of total denial. 7. At the conclusion of the trial the learned Sessions Judge held that the offence U/S 304 (B) /34 IPC is not proved and acquitted the accused from the said charge. However the Court held the accused appellants guilty U/S 498 (A)/34 IPC and convicted them as a foresaid. Hence the appeal. 8. The learned counsel for the appellants Mr. R L Yadav has submitted that in order to convict a person U/S 498(A) the prosecution is duty bound to prove that the demand of dowry was made to the victim and for that purpose the victim was tortured. But in the instant case there is no proper evidence to support such contention that victim was tortured in any manner on the demand of dowry. All the independent witnesses were declared hostile and the evidence of parents and uncle are also vague in nature, highly insufficient to warrant conviction. On the other hand, learned additional P.P. Mr. B J Dutta has submitted that evidence of parents and the uncle are sufficient to prove the offence of cruelty. 9. Let us appreciate the evidence on record. PW 1 Shri Harender Deka is neighbouring of the accused. From his deposition, it reveals that at the relevant time he went to the house of the accused appellants having heard hulla baloo there and saw the dead body of Anima Deka was lying upon the floor of the house of the accused. That on being asked accused no.1 told him that the deceased committed suicide by hanging in the room and her body was brought down by him from hanging position. That accused No.2 was not found in the house at that time. PW 1 stated that the occurrence took place at about 8 PM. PW 1 further deposed that he saw the accused No.2 to leave his house at about 7 PM. In cross-examination, PW 1 stated that accused no.2 had been brought to his house at about 12 midnight from the house of his paternal aunt. In cross-examination he further confirmed that about 2/3 months prior to the incident accused No.2 quarrelled with the deceased and then villages intervened and pacified both of them and asked them to maintain a family life. 10. PW 2, Smti Padumi Deka, PW 3, Smti Saibya Deka, PW 4, Smti Minati Deka, PW 5 Sri Daneswar Deka and PW-7 Sri Budha Deka are all co-villagers have stated nothing save and except about finding of recovery of the dead body of the deceased after she committed suicide. All above witnesses were declared hostile by the prosecution and they did not extend support to the prosecution case. PW 3, Smti Saibya Deka, however stated in her cross examination that she sometime heard quarrel between accused appellant no.2 and his wife. 11. PW 6, Shri Gangadhar Deka was paternal uncle of the deceased. From his evidence, it reveals that accused no.2 was given marry to the deceased about 11 years prior to the incident and after the marriage whenever the deceased used to come to their residence, she used to complaint that she had been made subject of torture by the accused persons on demand of cash amount, dowry etc. Deceased left 5 months old daughter at the time of her death and after the delivery of the child once the deceased was assaulted by both the accused appellants demanding dowry for which she had to be hospitalised. The above fact of torture by the accused demanding dowry was stated to him by the deceased alter on. That he saw injuries over thigh of the deceased. In cross-examination. PW 6 stated that the deceased visited their residence after two months of her delivery and then she complained that both the accused used to torture her demanding dowry. 12. PW 8, Shri Chintaram Saikia and PW 9 Srimoti Runu Saikia are the parents of the deceased. From their evidence, it reveals that the deceased used to complain before them that both the accused persons used to demand dowry from her and as she failed to fulfil the demand she was subjected to torture. Prior to the incident, the deceased was tortured by both the accused persons and as such, she had to admit in Mangaldoi Civil Hospital for her medical treatment. PW 9 has stated in her deposition that in some occasion they gave money to the accused to keep their daughter in their house. In cross examination. PW 8 has stated he did not file any FIR with the police for assaulting their daughter by the accused prior to the death of the deceased because both the accused appellants assured him that they would not commit further torture upon the deceased. 13. PW 10, Dr. Nikhil Ranjan Sarma, Superintendent of Mangaldoi Civil Hospital, conducted autopsy over the deadbody of the deceased and found the following- “..........An irregular non continuous obligue ligature mark was seen high up in the neck. Perchmentisation was seen on cut section of the ligature mark. The cause of death of Anima was due to asphyxia as a result of hanging.” 14. PW 11, Shri Kartik Baruah was the I.O. of the instant case. On sifting of his testimony what I find is that his testimony is mostly of formal in nature and as such, his testimony calls for non discussion in details. 15. DW 1, Sri Kanti Ram Deka has deposed that about three months prior to the death of the deceased, he treated her for POX and during the treatment he gave her water purifying by recital of “Mantras”. Any way, during cross-examination, DW 1 has admitted that he treated the deceased without seeing her. 16. DW 2, Naimuddin Ahmed was the villager headman of the area, where the alleged occurrence took place. During his evidence, he has only corroborated the facts of the case and nothing more. From his evidence, it reveals that he lodged written information with the Mangaldoi Police Station on the following day morning about the suicide and on the very day of the occurrence he informed the matter to the Police Station over phone. 17. DW 3, Smti Gandheswari Deka is the wife and mother of accused appellant nos. 1 and 2. She deposed that on the day of occurrence at the relevant time, she saw the deceased hanging inside her house. She has further deposed that two months prior to the death of the deceased, the deceased suffered from Small Pox and since then behaviour of the deceased had been changed. 18. On overall examination of the evidence on record it is apparent that save and except the parents and the uncle of the deceased all other independent witnesses have not supported the prosecution case. Inspite of being neighbour of the deceased they have not uttered any sort of torture upon the deceased by the accused appellants. On the other hand, the evidence of parents and uncle that are discussed above, it is apparent that they have given their evidence in a very vague manner without narrating any sort of incident of assault, torture or about time and manner of torture so as to reflect what sort of torture was made upon her. Their evidence is absolutely silent as regards the manner of torture or as to what sort of dowry demand was made by the accused appellants. Though they have referred about certain incident of assault after delivery of the child by the deceased and she was stated to be treated at hospital but no sort of medical evidence has been produced in support of such claim. That apart, no any complaint/FIR was made at the relevant point of time regarding such torture. Their allegation was cryptic without any elaboration as to what sort of torture was made upon her. The medical report also indicates about the matter of suicide as there was a ligature mark on the neck and cause of death is asphyxia as a result of hanging. There was no finding as about the injury about the body of the deceased. Thus medical report also not supportive of the allegation that the deceased was subjected in torture by the accused appellants. The learned trial Court in its order has come to a finding that prosecution has not been able to prove about the dowry demand and held that the evidence of demanding dowry without specification is vague and ramble and cannot be taken into consideration and accordingly the accused appellants were acquitted from the charge U/S 304-B IPC. However, considering the fact that the deceased committed suicide by leaving a baby, the Court come to finding about the guilt of the accused appellants U/S 498(A)/34 IPC. Such a finding by the learned trial Court appears to perverse as the main ingredient of offence of cruelty is gist of offence U/S 304-B IPC and the learned trial Court itself held that the said office is not made out as against the accused appellants and accordingly finding of cruelty of accused appellants as regards guilt cannot be maintained. As has been discussed above, all the prosecution witnesses have not been able to prove the incident of torture upon the victim to constitute the offence of cruelty within the purview of Section 498(A)IPC. Leaving apart the defence evidence the prosecution itself failed to bring home the ingredient of cruelty in the present case. 19. Section 498A of the IPC provides as follows. “498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the 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 purposes of this section, “cruelty” means – (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. 9. Extended meaning of cruelty. – (1) Clause (a). – Explanation (a) gives meaning of cruelty. The meaning of ‘cruelty’ for the purposes of this section has to be gathered from the language as found in section 498A and as per that section ‘cruelty’ means “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, etc. or harassment to coerce her or any other 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. A new dimension has been given to the concept of cruelty. Explanation to section 498A provides that any willful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such willful conduct which is likely to take grave injury or danger to life, limb or health whether mental or physical of the woman would also amount to cruelty. 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 would also constitute cruelty. The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. ‘Cruelty’ for the purposes of constituting the offence under section 498A need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. (2) Clause (b). – Clause (b) of Explanation to Section 498A enacts that the 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 property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of section 498A. Clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment is not cruelty. Mere demand for property, etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this is made punishable under the section”. 20. As has been discussed above, the prosecution has not been able to prove the cruelty as embodied U/S 498(A) IPC and as such finding of guilt under the aforesaid section of law cannot be sustained.21. In the result the impugned judgment and order of conviction dated 12.5.2008, passed by the learned Sessions Judge, Darrang Mangaldai in Sessions Case No.97(DM)06 (GR Case No.193 of 2006) U/Ss 498-A/304-B/34 IPC is hereby set aside and quashed and the accused appellants are acquitted from the charges on benefit of doubt.22. Return the LCRs.Appeal stands allowed.