High Court · 2012

The FIR was lodged by the mother of the deceased, which was regi 3. stered under Section 302/201 of the Indian Penal Code. However, after investigat ion, charge sheet under Section 498-A/306 IPC was submitted and the accused was tried for these offences and after full trial he has been convicted only under S ection 498-A. The learned Sessions Judge acquitted the accused from the offence under Section 306 IPC.

4. The prosecution case in a narrow compass is that the marriage be tween the deceased and the appellant took place about 13 years ago from the date of incident and there used to be frequent quarrel and the accused was demanding share of parental property of the deceased Sahera. Further prosecution case is that on the relevant day also there was a quarrel between the husband and the wi fe and within the minutes of the quarrel, the deceased committed suicide by sett ing fire on her body.

5. Mr. HRA Choudhury, learned Senior counsel for the appellant subm itted that there is no legal evidence of demand of dowry and minor quarrel canno t be a ground to draw a presumption that the husband had instigated his wife to take the extreme step of ending her life. The learned counsel also submitted that minor quarrel also canno 6. t bring the offence within the mischief of Section 498-A IPC, referring to the j udgments of the Hon’ble Supreme Court rendered in the Case of Hazarilal Vs. Stat e of Madhya Pradesh (2009) 13 Supreme Court Cases 783 and Gopal Vs. State of Raj asthan, (2009) 11 Supreme Court Cases 314. The learned counsel also submitted th at the prosecution has to establish and prove beyond reasonable doubt that the v ictim was subjected to cruelty.

7. In the case before me, altogether six witnesses were examined by the prosecution. PW-1 is the Autopsy Doctor and PW-6 is the Investigating Offic er. PW-3 is an independent witness and the remaining 3 (three) witnesses are the family members of the deceased being the father, aunt and uncle of the deceased respectively.

8. The doctor has opined that Sahera Begum died due to asphyxia, as a result of extensive burn injuries. He could not give any opinion whether it w as a case of homicide or suicide. Since the appellant has been acquitted from th e offence under Section 306 IPC the doctor’s opinion is virtually redundant, sin ce there is no dispute from the side of the accused that his wife had committed suicide. The co-villager of the accused has only spoken about unnatural d 9. eath of the appellant’s wife. He has totally silent about the marital relation b In this way the etween the appellant and his wife and also about the incident. entire prosecution case set upon the testimony of PWs.- 2, 4 & 5.

10. PW-2 has deposed that his daughter died due to burn injuries in the dwelling house of her husband. PW-2 was told about the incident by his siste r. PW-2 has further deposed that when he visited the place of occurrence the acc used was also present there. In the cross-examination PW-2 has denied the defenc e suggestion that there was no quarrel between the appellant and his wife, meani ng thereby the witness has approved the deposition of other witnesses that there they used to be quarrel between the husband and the wife.

11. PW-4 is the aunt of the deceased. She is the ace witness of the prosecution. According to PW-4 on the relevant day (06.11.2001) at about 10:30 a .m., the appellant went to her house and told her that there was a quarrel with Sahera and he would not allow her to return their house, if she at all comes bac k. PW-4 further deposed that after saying so the appellant left her house and w ithin 15 minutes children of the deceased came and reported her that Sahera died due to burn injuries. Thereafter, PW-4 proceeded to the house of the appellant and found that the entire body was burned down from head to toe.

12. PW-5 is the uncle of the deceased. At the relevant time this wit ness was staying at a different place, namely Tinsukia and as such he could not say as to how the incident took place. However, PW-1 has deposed that there used to be quarrel in between the deceased and the husband. All the aforesaid family witnesses, PWs-2, 4 & 5 were not given 13. any suggestion that Sahera did not die due to burn injuries nor any defence stor y was put forward that the deceased was a mentally weak lady. However, while giv ing statement under Section 313 Cr.PC the accused stated that his wife was not m entally sound. In my considered opinion this plea taken in Section 313 Cr.PC. st atement cannot be considered since no evidence in this regard was adduced by the accused.

14. 98-A, which is as given below: To decide this appeal it would be just and proper to reproduce Section 4 (cid:28) & &..498-A. 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, s ubjects such woman to cruelty shall be punished with imprisonment for a term whi ch may extend to three years and shall also be liable to fine. Explanation- For the purposes of this section,’cruelty’ menas- (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 heal th (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 o r valuable security or is on account of failure by her or any person related to her to meet such demand. (cid:29)

9. (cid:28)11 &.Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether men tal or physical of the woman are required to be established in order to bring ho me the application of Section 498-A IPC. Cruelty has been defined in the Explana tion for the purpose of Section 498-A. Substantive Section 498-A IPC and presump tive Section 113-B of the Evidence Act have been inserted in the respective stat us by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sect ions 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisio ns deal with two distinct offences. It is true that cruelty is a common essentia l to both the sections and that has to be proved. The Explanation to Section 498 -A gives the meaning of ’cruelty’. In Section 304-B there is no such explanation about the meaning of ’cruelty’. But having regard to the common background of t hese offences it has to be taken that the meaning of ’cruelty’ or ’harassment’ i s the same as prescribed in the Explanation to Section 498-A under which ’cruelt y’ by itself amounts to an offence. Under Section 304-B it is ’dowry death’ that is punishable and such death should have occurred within seven years of marriag e. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-a without that charge bei ng there, if such a case is made out. If the case is established, there can be a conviction under both the sections. Section 498-A IPC and Section 113-a of the Evidence Act include in their amplitude past events of cruelty. Period of operat ion of Section 113-A of the Evidence Act is seven years; presumption arises &. Wh en a woman committed suicide within a period of seven years from the date of mar riage & 10. Section 498-A IPC has two limbs. The first limb of Section 498-A provides th at (cid:28)whoever, being the husband or the relative of the husband of a woman, subjec ts such woman to cruelty shall be punished (cid:29). (cid:28)Cruelty (cid:29) has been defined in claus e (a) of the Explanation to the said section as (cid:28) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide (cid:29). When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498-A. Clause-(a) of the Explanation has definite application to the facts of th e present case. Additionally, effect of Section 113-A of the Evidence Act cannot be lost sight of. (cid:29)

15. Apparently, the cruelty, as defined under Section 498-A IPC has two limb s. If the cruelty is related to misconduct of the husband or other relatives, wh ich may drive a woman to commit suicide etc. the offence would come under Sectio n 498-A (a) Explanation and if the cruelty and harassment is related to dowry th e offence would come under the purview of Clause- (b). In the case before me there is no evidence of demand of dowry. In other 16. words the prosecution case is that the deceased committed suicide due to mental and physical cruelty by her husband. PWs 2, 4 & 5 have spoken about frequent qua rrel between the husband and the wife. PW. 4 has spoken about intense quarrel on the relevant day.

17. In my considered opinion, giving warning to the wife after the q uarrel that she would not be allowed to return to the matrimonial home would amo unt to serious nature of cruelty and the offence would be covered under Section 498-A Explanation (a). Hence, I do not find any infirmity in the impugned judgment in convicting the ap pellant under Section 498-A IPC. The judgments cited by the learned counsel appearing for the app 18. ellant are distinguishable on facts. In the case of Hazarilal the case of cruelt y and harassment was set up with the allegation of demand of dowry. The Hon’ble Supreme Court acquitted the accused holding that there was no evidence that the deceased was being harassed for demand of dowry. In the present case, the appell ant has been convicted under Section 498-A Explanation- (a) and not under Clause - (b). Similarly, the judgment of Gopal (Supra) there was no evidence of suicide as well as demand of dowry. However, in the instant case there is evidence of f requent quarrel and also on the relevant day. The quarrel was so intense that th e deceased had committed suicide within minutes the husband left home.

19. Coming to the quantum of sentence, Mr. HRA Choudhury learned Sen ior counsel appearing for the appellant submitted that there was no demand of do wry and the incident of suicide took place after 13 years of marriage. Besides t his the appellant has 4 (four) minor children and longer period of sentence woul d cause hardship to the children.

20. In view of the aforesaid statements the substantive sentence of 3 (three) years is reduced to 1 (One) year rigorous imprisonment. However, the s entence of fine of Rs. 5,000/- with default sentence of further RI for 3 (three) months is maintained. In the result fact the appeal stands dismissed. The appellant is directe 21. d to surrender in the Court of learned Sessions Judge to undergo the remaining p eriod of sentence.

22. Return back the LCR.