High Court
Case Details
Crl.A. 31/2006 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL The appellant herein stands convicted under Section 376 and 498-A of the Indian Penal code vide impugned Judgment and Order dated 12.1.2006 passed by th e learned Sessions Judge, Kamrup, Guwahati in Sessions Case No.115(K) of 2004. O n such conviction the appellant has been sentenced to undergo rigorous imprisonm ent for 7 years with fine of Rs.10,000/- under Section 376 IPC and another sente nce of 2 years rigorous imprisonment with fine of Rs.5000/- under Section 498(A) IPC. Both the sentences have been directed to run concurrently. 2. ed this appeal. Being aggrieved with the conviction and sentence the accused has preferr 3.
Legal Reasoning
Heard Mr. AK Bhattacharyya, learned senior counsel for the appellant and Mr. BB Gogoi, learned Additional Public Prosecutor for the State. Also perused the impugned judgment and the prosecution evidence, given in the trial court. Th e defense case was of total denial and no evidence in defense was proffered in t he trial court. 4. The offence of rape is against the maid servant, whereas, the offence of cruelty is against the wife. The prosecution case is in a nutshell is that the prosecutrix and the ap 5. pellant were married in the year 1990. The accused was an officer in the Food, C ivil Supply and Consumer Affairs Department, Government of Assam as Inspector at the relevant time and both the husband and wife were living at Hedayatpur, Guwa hati. Since it was a flood prone area the accused and his wife shifted to Lakhto kia area in the year 2000 and started living in a house, owned by the parents of the prosecutrix. At this place the marital relation between the husband and the wife became strained and the couple had shifted to a rented house in Pathar Kua ri area. In between this period, the accused was transferred to Karimganj and he used to visit the rented house at Pathar Kuari occasionally. During his intermi ttent visit to Guwahati also the accused used to misbehave and torture his wife, besides establishing illicit relationship with their domestic help. Hence, apar t from the allegation of physical and mental torture, the wife has slapped the a llegation of rape against her husband with the domestic help. 6. With the aforesaid story an FIR was lodged by PW-1 at All Women Police S tation, Panbazar on 21.06.2002 which was registered as GD Entry No.307. Another FIR was lodged at the same police station on 2.11.2002 alleging mental cruelty a nd for not providing maintenance allowance. Despite filing of two FIRs nothing m oved in the police station. Hence, the victim had to file a complaint in the Cou rt of learned CJM, Kamrup, Guwahati on 7.11.2002. This complaint was forwarded t o All Women Police Station, Panbazar and only thereafter a regular case, being A ll women PS Case No.50 of 2002 u/s 498(A) and 376 IPC was registered on the basi s of the ealier FIR dated 2.11.2002. After investigation the accused was challan ed for the said offence. 7. To establish the offence altogether six witnesses were examined by the p rosecution. PW-1 is the victim woman herself; PW-2 is their domestic help; PW-3 is distantly related grandmother of the prosecutrix and PW-4 is the daughter of PW-3 and PW-5 is the I.O. and PW-6 is the doctor. 8. Mr. Bhattacharyya, learned senior counsel for the appellant submitted th at entire trial is vitiated in law inasmuch as the learned CJM should not have f orwarded the complaint to the police station in view of specific statement there in about filing of an FIR at the police station. According to the learned counse l in view of Section 210 of the Code of Criminal Procedure, 1973, the learned Ma gistrate ought to have registered the complaint in his Court and after recording statement of the complainant and her witnesses under Chapter-XV of CrPC the lea rned Magistrate ought to have stayed further proceeding till the receipt of poli ce report on the FIR. 9. I agree with the learned senior counsel for the appellant that since the re was a mention of lodging an FIR it would have been proper for the Magistrate to first call for a report from the concerned police station instead of forwardi ng the complaint to the police station. At the same time, the entire trial canno t be declared void ab initio at this stage since I find that in the complaint pe tition itself it was clearly indicated that no action had been taken by the poli ce on the basis of the FIR. I have already mentioned earlier that despite filing two FIRs no regular police case was registered. Only a GD Entry No.307 dated 21 .6.2002 was recorded. Even otherwise Section 210 Cr.P.C. is attracted only if a Magistrate is made to appear during the course of enquiry or trial of a complain t that a police investigation is also in progress in relation to the same offenc e. In other words, there is no bar for the CJM/Magistrate to forward a complaint to the police Station even if an FIR has already been submitted at a particular police station for the same matter. In my considered opinion forwarding of the complaint to the same police station, where an FIR is pending investigation woul d, rather, meet the requirements of Section 210 CrPC. Accordingly, the question of maintainability of the complaint is hereby overruled. 10. On the merit of the case, the learned senior counsel for the appellant s ubmitted that the appellant could not have been convicted for the offence of rap e since the victim of sexual assault herself did not file any FIR. The learned c ounsel also submitted that the domestic help was admittedly an adult woman and s he was a divorcee. Though it is not clear from the deposition of the domestic he lp (PW-2) that she was a divorcee but it is abundantly clear that she was an adu lt woman of 22 years. According to he learned counsel for the appellant even if it is proved that there was physical relationship between the appellant and his domestic help it would not amount to the offence of rape since the victim must h ave been a consenting party for the sex. With regard to the offence of cruelty t he learned counsel argued that this offence has also not been proved with the ai d of any independent witness or the parents of the prosecutrix. Besides this the learned counsel submitted that the alleged torture do not attract the ingredien ts of Section 498-A IPC. 11. OFFENCE OF RAPE To establish the offence of rape it has to be established, inter- alia, by the prosecution that the sexual intercourse with a woman was against her will or consent and that the victim was not a girl of less than 16 years of age. In the case before me the victim was nearly 22 years old. This is as per the statem ent of the victim woman as well as medical opinion. With regard to factum of con sent it has to be inferred from the conduct of the victim woman. In the case bef ore me though there is an allegation of repeated sexual intercourse the domestic help herself did not file any FIR or complaint in the Court. I also find from h er oral testimony that after separation of the husband and wife she choose to st ay with her madam instead of living with the appellant. Apparently, the FIR was lodged after several months of separation. Since PW-2 (domestic help) was all al ong in the company of PW-1 she must have the knowledge of filing FIR/complaint i n the Police Station /Court. Despite that PW-2 did not lodge any separate FIR re garding her sexual assault. Besides this, PW-2 has also admitted that the appell ant had repeated sexual intercourse on many occasions and once she had also conc eived a child and the pregnancy was aborted after taking medicine. In view of th e aforesaid conduct of PW-2 it appears to me that the domestic help was a consen ting party to the sex. Resultantly, the conviction of the appellant under Sectio n 376 IPC is hereby set aside. 12. CRUELTY Section 498-A IPC relates to cruelty and harassment upon a married woman by her husband or relatives of her husband. To ascertain the justification of c onviction of the appellant under Section 498-A IPC and for proper appreciation o f oral evidence in this regard it would be just and proper to have a look at the panel provision, which is as under : (cid:28) 498-A-Husband or relative of husband of a woman subjecting her to cruelty- Who ever, 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 exten d to three years and shall also be liable to fine. Explanation- for the purpose of this Section, (cid:28)cruelty (cid:29) 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 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) 13. A bare reading of Section 498-A IPC shows that the offence embraces with in its fold any form of cruelty, which may drive the woman to commit suicide or inflict injury that may endanger her life under Explanation-(a). Explanation (b) relates to harassment of the woman for non-fulfillment of demand of dowry. In t he case before me though there is no demand of dowry before or soon after the ma rriage the prosecutrix has alleged that when they shifted to her parents’ house at Lakhtokia her husband was insisting that the flat should be transferred in hi s name. There is also allegation of demand of a car. However, I would prefer to ignore these allegations since these allegations were neither stated in the comp laint/FIR nor stated before the I.O. There is also an allegation of non-payment of money for medical treatment. However, there is no specific evidence as to how much money was demanded and when. Hence, I also choose to ignore this allegatio n. Though the learned Sessions Judge has not given due weightage to the allegati on of adultery for recording conviction under Section 498-A I am of the view tha t establishing physical relationship with the maid servant in the knowledge of the wife is a serious crime and, if proved, would certainly amount to mental cru elty within the meaning of Explanation-(a) to Section 498-A IPC. 14. In the case at hand the wife has directly alleged that one day she asked her maid servant to prepare some food. When the maid servant did not return wit h the food she went out only to find that her husband (accused) was embracing th e domestic help. PW-1 has further deposed that seeing this behavior of her husba nd she rebuked him for such misdeed with the maid servant. In return, the accuse d started strangulating her. However, she was capable to release herself from th e clutches of her husband. The prosecutrix has further alleged that in view of t he aforesaid conduct of the husband she had once tried to commit suicide but at the request of the maid servant her husband broke open the door and prevented he r from committing suicide. 15. The fact of illicit relationship with the domestic help has been elabora tely narrated by the domestic help herself as PW-2. This witness has deposed tha t one day the accused came to Guwahati from Karimganj and before that her Madam had undergone gal-bladder operation. PW-2 has further deposed that once her aun ty had asked to prepare tea and she then went to the kitchen for the said purpos e. Suddenly the accused entered the kitchen and embraced her and after undressin g her she was subjected to sexual intercourse. PW-2 has further clarified that t he act of adultery was seen by aunty. Though PW-1 has spoken about only noticing her husband embracing the maid servant and not in compromising position it has to be presumed that she had actually seen her husband indulging in sexual activi ty with the maid servant, since I do not find much difference in the expression ’embracing’ and ’compromising position’. PW-2 has further corroborated the prose cutrix by deposing that when the aunty protested the activities of her husband s he was rebuked and assaulted. The maid servant has further deposed that in the n ight her aunty returned to her grandmother’s house and in the night also she was sexually enjoyed by the accused/ appellant. PW-2 has further elaborated her sex ual abuse by deposing that the appellant had bite on her chest and other parts o f the body and she was given tablets by the accused for regular menstruation. 16. The testimony of PW-3 also supports the theory of illicit relationship w ith the maid servant and physical assault and mental torture upon the prosecutri x. PW-3 has deposed that being related she had the occasion to stay in the flat of the prosecutrix. Once she had noticed the accused sneaking into the bed of PW -2 meaning thereby the accused had gone to the bed of PW-2 for sexual activities during night hours. PW-3 has further deposed that when the prosecutrix demanded money for her expenses her husband had beaten her, instead of paying money for expenditure. 17. The testimony of PW-4 is confined to non-payment of money to the prosecu trix for celebrating the birthday of a child and also refusing to go for marketi ng on another occasion. Since the prosecutrix herself has not made serious alleg ation of non-payment of money for birthday celebrating and going together for ma rketing I am constraint to ignore these allegations made by PW-4. Similarly, I a lso ignore the allegation of the prosecutrix and other witnesses regarding non-p ayment of expenditure of gal-bladder operation since it is not clear as to who h ad ultimately footed the hospital bill. 18. While dealing with a case of torture U/s 498-A IPC the Hon’ble Supreme C ourt in the case of Kundula Bala vs- State of Andhra Pradesh;(1993) 2 SCC 684 : 1993 CrLJ 1635, has observed that the role of courts under the circumstances as sumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on accou nt of procedural technicalities or insignificant lacunas in the evidence as othe rwise the criminals would receive encouragement and the victims of crime would b e totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women. In my considered opinion, i ndulging in repeated illicit relationship with a maid servant in the presence an d knowledge of the wife is sufficient to hold that the woman was subjected to me ntal cruelty. In the case before me the prosecutrix has also deposed that once s he had attempted to commit suicide but that was prevented by her husband. Althou gh there is no corroborating evidence in this regard I hold that proved evidence of illicit relationship with the domestic help itself is enough to hold that it is an offence of mental and emotional cruelty. 19. In the case of Ramesh Kumar- vs- State of Chattisgarh; (2001) 9 SCC 618 the Hon’ble Supreme Court has held that teasing a wife regarding poor quality of dowry articles; ill treatment for mistakes in household works and physical beat ing amounts to cruelty within the meaning of Section 498-A IPC. Again in the cas e of Md. Hoshan-vs- State of Andhra Pradesh : (2002 CrLJ 4124): (2002) 7 SCC 414 the Hon’ble Suprme Court has approved the observations of the High Court that c ontinuous taunting and teasing amounts to cruelty. However, the Hon’ble Judges o f the Apex Court have observed that the impact of complaint, acquisition or taun ts on a person, amounting to cruelty, depends on various factors like sensitivit y of the individual victim concerned, social background, environment and educati on etc. 20. For the foregoing reasons I hold that it is a fit case wherein the convi ction of the appellant under Section 498-A IPC can be maintained. However, in ab sence of any FIR at the instance of the victim woman (PW-2) for her sexual abuse and finding some materials to hold that PW-2 was a consenting party I hereby se t aside the conviction of the appellant under Section 376 IPC. 21. With regard to the quantum of sentence I have already noted earlier that the learned Sessions Judge has sentenced the appellant to undergo rigorous impr isonment for 2 (two) years and also to pay fine of Rs.5000/- with default senten ce of further rigorous imprisonment for 6(six) months under Seciton 498-A IPC. 22. In the case of Pabitar Singh -vs- State of Bihar (CA No 128 of 1969, D/O on 22.3.1972); reported in 1972-AIR(SC)-O-1899, the Hon’ble Supreme Court has o bserved that while convicting a government employee great care and attention sho uld be devoted by the courts since any adverse judgment would affect the career of the employee. In the case before me the appellant was 49 years old, while giv ing statement under Section 313 Cr.P.C. on 6.7.2005 and by now he is approximate ly 57 years old. Besides this, both the children are in the custody of the prose cutrix and the appellant has no liability to maintain anyone. At the same time, the alleged offence was committed in the year 2002 and after more than 10 years it is not advisable to send the appellant to prison. I may also mention here tha t there is no scope of releasing the accused/appellant on probation on good cond uct since he is already living separately from his wife since more than 10 years . Hence, I hold that it is a fit case to convert the prison sentence to fine. Ev en otherwise under Section 5 of the Probation of Offenders Act, 1958 compensatio n can be provided to the victim payable by offender. 23. Considering all these aspects, including legal aspects, the sentence in the form of rigorous imprisonment for 2 years under Section 498-A IPC is hereby set aside. At the same time, the fine amount of Rs.5000/- is enhanced to Rs.1 La kh (One Lakh). The appellant is given 3(three) months time to deposit the fine a mount in the trial Court, failing which the appellant shall undergo rigorous imp risonment for 6(six) months. If the appellant deposits the fine amount in the Co urt the same shall be paid to the victim as compensation. 24. l stands dismissed. With the aforesaid modification in the conviction and sentence the appea