Judgment · High Court · 2012

Musstt. Rushna Begum lodged a first information on 22-03-1995, o n the basis of which Karimganj PS Case No.145/95 u/s 498(A) IPC was registered n aming Md. Babul Miyan and Musstt. Kamalarun Bibi as the accused. [4] The police investigated the case and on completion of the same, filed a charge-sheet against the two accused persons u/s 498(A) IPC, showing the accused appellant as absconder. The aforesaid case was thereafter registered as G.R. Case No.273/1995 before the Criminal Court at Karimganj. Initially, a charge u/s 498(A) IPC was framed against the accuse [5] d persons. But it transpired that the informant had died in the meanwhile. Holdi ng that a prima facie case u/s 304(B) IPC was made out against the accused perso ns, the learned trial Court committed the case to the Court of Session, Karimgan j to conduct the trial, whereafter, in addition to the charge u/s 498(A) IPC, a further charge u/s 304 IPC was framed. [6] The prosecution side examined as many as 9(nine) witnesses where as the defence side examined only 1(one) witness. 4(four) witnesses were indepen dently examined by the Court. The statements of the accused persons were recorde d u/s 313 of the Code of Criminal Procedure (Cr.P.C.). The plea taken by the def ence was of complete denial. The learned Sessions Judge on perusal of the evidence, other mat [7] erials on record and after hearing the parties held that the charges could not b e proved against the accused Musstt. Kamalarun Bibi and accordingly, she was acq uitted. In so far the accused appellant is concerned, he was also acquitted agai nst the charge u/s 304 IPC but it was held that the charge u/s 498(A) IPC stood proved against him beyond all reasonable doubt. Accordingly, he was convicted un der the aforesaid section and the sentence as mentioned above was imposed on him . [8] Feeling aggrieved, he is before this Court in appeal. [9] This Court by order dated 26-09-2003 had admitted the appeal and by a separate order of the same date, had stayed the impugned judgment and orde r and also allowed the appellant to go on fresh bail. [10] d. Heard learned Counsel for the parties and perused the case recor Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant h [11] as forcefully argued that from a perusal of the evidence on record, it is quite clear that the ingredients constituting an offence u/s 498(A) IPC are totally ab sent to warrant conviction of the appellant under the aforesaid section. Referri ng to the definition of the term (cid:28)cruelty (cid:29) as appearing in the said section, par ticularly in Explanation (a) thereof, he submits that the conviction of the app ellant cannot be justified and the same is required to be set aside and quashed. He refers to the decision of the Apex Court in the case of Gopal -Vs- State of Rajasthan; reported in (2009) 11 SCC 314. [12] Resisting the above submission, Mr. B.S. Singha, learned Additio nal Public Prosecutor, Assam, appearing for the respondent state submits that th ere are enough materials to come to the one and only conclusion that the appella nt had subjected the informant to (cid:28)cruelty (cid:29) within the meaning of Section 498(A) IPC. He forcefully submits that the crime committed by the appellant is a heino us one and is a crime against womanhood. He therefore submits that no leniency s hould be shown to the appellant. [13] . The submissions made by both the sides have been duly considered Section 498(A) is included in Chapter XXA of the IPC. The said c [14] hapter containing the only section 498(A) was introduced to prevent the torture of a woman by her husband or by relatives of her husband. Section 498(A) provide s that if a husband or the relative of the husband of a woman subjects her to (cid:28)c ruelty (cid:29), the husband or the relative shall be guilty of the offence u/s 498(A) a nd shall be liable to be punished with imprisonment for a term which may extend to 3(three) years and shall also be liable to fine. The Explanation to the above section defines the word (cid:28)cruelty (cid:29). For the present case, Explanation (a) would be relevant. It says that for the purpose of section 498(A), (cid:28)cruelty (cid:29) would me an any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or is likely to cause grave injury or danger to her life, lim b or health, whether mental or physical. [15] In the understanding of the Court, to bring home the charge u/s 498(A), (cid:28)cruelty (cid:29) has to be proved. Under the aforesaid section, (cid:28)cruelty (cid:29) itsel f is an offence and is punishable. As defined by the Explanation (a) (relevant t o the present case), it much be such conduct which is likely to drive the victim woman to commit suicide or is likely to cause grave injury to her, which may be either mental or physical. To constitute (cid:28)cruelty (cid:29), neither any overt act is re quired nor is actual commission of suicide necessary. By the very definition, th e injury to the victim woman is either inflicted or is in danger of being inflic ted. [16] What would constitute cruelty would, however, depend upon and va ry from case to case. It would depend amongst others upon the family environment and the sensitivity of the victim woman. In a given case, even refusal to speak to the wife may amount to cruelty. [17] The Hon’ble Supreme Court in the Case of Md. Hoshan and another -vs- State of A.P; reported in 2002 Cri. L.J 4124 even accepted the view that ta unting or teasing the wife would amount to cruelty. [18] In the present case, PW 2 Musstt. Hawarun Bibi, who is the next door neighbour of the accused persons, stated in her evidence that on the day of occurrence at about 7am, she went to the house of the accused persons after hea ring the cry of the informant. There she saw the accused appellant assaulting th e informant with a stick. In her cross examination, she stated that it was a bam boo stick and she had to stop the appellant from further assaulting his wife. Sh e said that she saw 2(two) swelling injuries over the back of the informant. [19] Another witness Abdul Khalique, PW 4, deposed that he was procee ding from his house to the village shop on the fateful day. While he was in fron t of the house of the accused, he heard a hue and cry and saw the accused appell ant assaulting his wife with a bamboo stick, which forced him to intervene. This version of his could not be dislodged in the cross examination. [20] PW 8 is Ainub Bibi, another neighbour. In her evidence, she stat ed that on the date of occurrence at about 8am, she went to the house of the acc used on hearing a hue and cry and there she saw the accused appellant assaulting the informant by a bamboo stick. [21] Though the medical evidence opined that the cause of death of th e informant was anaemic heart failure due to cardio respiratory failure, the sam e cannot, in the considered opinion of the Court, dilute the direct evidence of the eye witnesses. However, even the post mortem report indicated a reddish patc h of size 2 (cid:29) x 2 (cid:29) over the back of the victim. [22] Though a doubt was sought to be created by the prosecution side about the marital status of the informant, the evidence of the Court witnesses c learly established that the informant was the wife of the appellant. [23] From the evidence on record, there cannot be even an iota of dou bt that the informant was subjected to severe cruelty by the accused appellant. The cruelty was inflicted on 13-03-1995 when she wanted to visit her parent’s ho use on coming to know of her father’s death and wanted to see the dead body of h er father for the last time. This is cruelty of the highest order and is of such a nature that it could have driven any woman to commit suicide. Most unfortunat ely, the informant died after a few days of the assault. The fact that she was f ound to be anaemic at the time of death is itself a pointer to the treatment met ed out to her in her matrimonial home. [24] The decision rendered in the case of Gopal -vs- State of Rajasth an (supra), in the considered opinion of the Court, cannot come to the aid of th e appellant as the facts are quite distinguishable. That was a case where the ac cused was acquitted by the trial Court from the charge under Section 498(A) and 306 IPC. On appeal by the State, the High Court held the appellant guilty of the offence punishable under Section 498(A) IPC while upholding the acquittal in re spect of the offence punishable under Section 306 IPC. This decision of the High Court was interfered with by the Hon’ble Supreme Court and the conviction as re corded by the High Court was set aside. In that case, the charge was not only un der section 498(A) Explanation(b) but also u/s 306 IPC. In the context of that c ase, the Hon’ble Supreme Court held that for bringing in application of Section 306 IPC, suicide has to be established and in so far Section 498(A) Explanation (b) is concerned, there must be evidence of demand of dowry. The facts of the pr esent case are totally different. Here it is a case coming under Section 498(A) Explanation (a). [25] For all the aforesaid reasons, this Court is not inclined to int erfere with the conviction and sentence of the appellant, which is hereby affirm ed. [26] Appeal accordingly stands dismissed. [27] appellant stands cancelled. Interim order passed on 26-09-2003 is vacated. Bail bond of the [28] Appellant to appear before the learned Adhoc Additional Sessions Judge, Karimganj within 30 days from today to serve out the sentence. [29] Registry to send down the LCR forthwith.