1. In the instant application under Section 401 read with Section 482 Cr.P.C the judgement and order dated 22.12.2009 passed by the learned Additional Sessions Judge, Fast Track Court-I, Dinhata, Cooch Behar in Sessions Trial No. 2(v) of 2009 and Sessions Case No. 93 of 2009 arising out of Dinhata P. S. Case No. 65/08 dated 25.02.2008 under Section 498A/306 of the Indian Penal Code has been assailed. By the judgement and order the learned trial Judge acquitted the accused opposite party of all charges. Being aggrieved by and dissatisfied with such findings the de facto complainant has preferred this application contending inter alia, that the findings of the learned Trial Judge is perverse in as much as he has failed to appreciate the evidence adduced by the prosecution to prove the allegation of abatement by the relatives to commit suicide on demand of dowry followed by subsequent torture. It is contended that there are sufficient evidene on record to show that the victim was ill-treated which will be reflected from the individual role played by the accused persons in abetting the victim to commit suicide. From the conduct of the accused persons it will also be evident that immediately after the incident of the accused persons left the house leaving behind the deceased housewife in the house and it is only the adjoining neighbours who recovered the dead body and assisted the complainant party. In fact the opposite party nos. 2, 3 and 4 were solely responsible for the tragic death of the victim and ignoring the significance of the evidence of PWs 1, 2, 5 and 7 regarding cruelty and torture on demand of dowry the learned Judge has acquitted them. It is also argued that the latches of the investigating officer ought to have been ignored by the learend Trial Judge. Therefore, the judgement under appeal is not the outcome of any application of judicial mind and proper appreciation of the evidence on record leading to miscarriage of justice and therefore, the order of acquittal passed by the learned Trial Judge should be set aside. In support of such contention the learned lawyer for the petitioner has referred to and relied upon the principles laid down in AIR 2003 SC 11 (K. Prema S. Rao & Anr. Vs.- Yadla Srinivasa Rao & Ors.) and AIR 2004 SC 5097 (Randhir Singh & Anr. Vs.- State of Punjab).
2. In the case of Randhir Singh & Anr. Vs. State of Punjab (AIR 2004 SC 5097) it has been held, inter alia, that absence of victims statement before her friend about any harassment by itself is not sufficient to acquit accused when cogent and reliable evidence of relatives proved demand for dowry. In the said case evidence of relatives, more particularly, father and the mother clearly proves demand of dowry and the death occurred during seven years of marriage. Therefore, the Honble Apex Court upheld the order of conviction under Section 306 IPC. In the instant case the death occurred about 10 years after marriage and as such the facts and circumstances are not identical though the parents have complained of demand of dowry which was disbelieved by the learned Trial Court.
3. In the case of K. Prema S. Rao & Anr. Vs.- Yadla Srinivasa Rao & Ors. reported in AIR 2003 SC 11 the accused was convicted under Section 498A of the IPC on charge of forcing deceased wife to part with her land received by her in marriage as Stridhan for the purpose of which he concealed her postal mail and such conduct was treated as cruelty which had driven her to commit suicide and the presumption under Section 113A of the Evidence Act was raised against him. In the said case the marriage of the deceased did take place on 26.06.1988 while she was forced to commit suicide by consuming poisonous insecticide endusulphan on 22.10.1989. This fact is also not identical with the facts of the present case. However, learned lawyer for the petitioner has contended that the ratio in those cases should be applicable in the instant case but the learned Trial Judge has failed to appreciate the evidence in its proper perspective. It has been contended in the revisional application that the learned Court below has failed to appreciate the testimony of PWs 1, 2, 5 and 7 regarding the torture inflicted by the accused upon the victim on demand of dowry. Their testimony will certainly prove the charge under Section 498A IPC against opposite party nos. 2, 3 and 4 who were responsible for the tragic death of the victim.
4. I have perused the records of the learned Court below. PW 1, Nabir Mia is the de facto complainant and father of the victim. PW 2, Momina Bibi is the mother of the victim. PW 5, Sahidul Mia is a next- door-neighbour of the de facto complainant, PW 1. PW 7, Topcher Mia is the full brother of the de facto complainant, PW 1. In paragraph 20 of the judgement under assail, the learned Trial Judge has discussed the evidentiary value of the testimony of all those four PWs. Regarding the defence contention he has noted that there are major contradictions between the cases disclosed in the FIR and the evidence of the prosecution witnesses. PWs 1, 2, 5 and 7 have stated omnibus allegation of demand of money by the accused persons without specifying any date, month or year when such alleged demands were made or the deceased was harassed by the accused persons. The learned Court while appreciating their evidence has come to the conclusion that the allegation of assault and physical torture upon the victim Nurjahan by the accused person on demand of Rs. 10,000/- is a post-dated allegation and no previous complaint was made either to police or to any local Panchyat about such cruel treatment on demand of money from the deceased. On the above background he has assessed the evidentiary value of the prosecution witnesses. In the FIR (Exhibit 5) which is the foundation of the prosecution case it is stated that since Nurjahan gave birth to her second son, her husband at the instigation of his father and mother subjected her to physical and mental torture on demand of Rs. 10,000/- and they also deprived her of food. It is further stated in the FIR that sometimes the deceased used to stay in her fathers house but it appears from the FIR and evidence of PW 1 that the youngest son of the deceased was four years of age at the time of her suicide. If it is assumed that the torture on Nurjahan was unleashed four years before her death, then evidence of PW 2 and PW 7 that the accused persons subjected her to torture on demand of Rs. 10,000/- after she gave birth to her first son five years before her death gives rise to a major contradiction to the prosecution story regarding the vital time when such alleged torture was initiated. Therefore, the testimony of PWs 1, 2 and 7 fails to confirm the actual time when the alleged torture was perpetrated against the accused. Moreover, PWs 1, 2, 5, 6 and 7 in a orchestrated manner have deposed that Aminul demanded Rs. 10,000/- from Nurjahans father as dowry about two years ago. If this evidence is accepted and relied upon the prosecution case of unlawful demand of money made by the accused persons since Nurjahan gave birth to her first son stand futile and unreliable. Learned Trial Judge further held that it is accepted principle that prosecution evidence is led to substantiate the allegation made in the FIR. If the FIR discloses any fact or sequences of events constituting the alleged offence of cruelty or abatement to commit suicide, the testimony of the prosecution witnesses should be appreciated by the Court keeping in view the allegations made in the FIR. If there is departure from the allegation made in the FIR at the time of examination of the witnesses in Court or with regard to all statements of witnesses recorded by the IO under Section 161 IPC, such departure and contradiction in between the FIR and the oral testimony makes the prosecution story disbelievable and the benefit of doubt must go in favour of the accused persons if such doubt cuts roots of the prosecution case.
5. In discarding the testimony of the prosecution witnesses the learned Court below has also noted the probability of human conduct in the nature of interaction and continuous leading of conjugal life by the victim with her husband with little interruption. Had there been really any continuous torture on demand of dowry she could never lead conjugal life continuously for more than ten years including her stay at Delhi with her husband where they went and stayed for about eight months. It is admitted by the PW 1, father of the victim, in his cross-examination that his daughter and son-in-law had been to Delhi to look for work and after staying there for eight months they returned home about one year prior to Nurjahans death. He has also deposed that two or three years ago the victim had been to his house to communicate him about the demand of money by the accused persons and she had been to the house on six occasions to ask for the money and on all these six occasions he sent his daughter back to her matrimonial home after consoling her. From such evidence it transpires that the alleged demand of money from Nurjahan and her harassment by the accused person in consequence of failure to meet such demand had taken place only before Nurjahan and her husband left for Delhi in search of livelihood. There is no evidence on record to prove how the deceased was treated on her matrimonial home after their return from Delhi to strike a cause and effect relationship between the demand of the accused at her matrimonial home and her eventual commission of suicide. PW 7, full brother of PW1, did not make any allegation of torture upon the victim by the accused father-in-law and mother-in-law on demand of money which is also a glaring departure from the FIR noted by the learned Trial Judge. He has rightly observed that there is a shift in the prosecution evidence regarding non-involvement of the accused Kasem Mia and Amina Bibi in perpetrating the alleged torture for a continuous period which might be a proximate cause of committing suicide by the victim. Therefore, the learned Court below was reluctant to place any reliance upon the credibility of the prosecution witnesses.
6. In AIR 2003 SC 11 [K. Prema S. Rao & Anr. Vs.- Yadla Srinivasa Rao & Ors.]. In the said case it has also been held, inter alia, that if the accused is convicted under Section 498A for the offence of cruelty, on same evidence he can be convicted for abatement of suicide under Section 306 IPC with the aid of Section 221 Cr.P.C. and presumption under Section 113A of the Evidence Act can be raised against him. In the said case accused no. 1 married the victim on 26.06.1988 but the victim committed suicide on 22.10.1989. In the instant case the victim died after more than ten years from her marriage and as such the said principle will not be applicable in this case. In AIR 2004 SC 5097 [Randhir Singh & Anr. Vs.- State of Punjab] the Honble Court, inter alia, placed reliance upon absence of victims the credibility of relative witness and held that if the evidence of relatives is not reliable the same principle cannot be applicable. In the instant case the learned Trial Judge has sufficiently explained why he is unable to place any reliance upon the testimony of PWs. 1, 2, 5, 6 and 7 for the reasons discussed above. Unless the evidence of the relative is reliable, no conviction of the accused on the basis of contradictory testimony of witnesses will be sustainable and as such I hold that the said principle is not applicable in the facts and circumstances of this case.
7. The cause of death, as mentioned in the Post Mortem Report, may be suspicious since, hyoid bone remained intact which is uncommon in the case of suicidal hanging. Yet doubt cannot take the place of proof and if there is any doubt the benefit should be bestowed upon the accused. Therefore, the distorted incident of demand of money cannot be treated as a demand of dowry and in the context of continuous living of conjugal life by the victim with her husband for more than ten years there must be some presumptive value of congenial atmosphere for which it was possible for her to lead conjugal life with the children for such a long time. Therefore, the allegation of inflicting torture or cruelty cannot be treated as a continuous one and the proximate cause of her death cannot be attributed to such allegation of cruelty. It is also improper for normal human conduct in the context of such demand of dowry to remain silent for a long time without lodging any complaint or without inviting neighbours to settle the dispute. In this context the learned Trial Judge has rightly observed that the element of continuity is lacking to constitute the organic components of cruelty and abatement of committing suicide and prosecution has utterly failed to establish that the death of the victim Nurjahan is a logical culmination of continuous torture for a long process which can be termed as ill-treatment or cruelty and her occasional report to parents regarding demand of money by the accused persons has no proximate relation to her death. Therefore, such evidence is inadmissible under Section 32(1) of the Evidence Act and in arriving at such a conclusion he has relied upon the ratio of the case of Niharbala Banerjee & Anr. Vs.- The State of West Bengal reported in 1989 C Cr. L R (Cal) 40. Since the charge of Section 498A IPC fails in the absence of sufficient proof of continuous ill-treatment it is not enough to prove beyond reasonable doubt that the accused persons are guilty of abetting the victim to commit suicide. The learned Trial Judge has rightly observed that there is dearth of sufficient materials to suggest that any of the accused persons had the intention to provoke, urge or encourage the victim to commit suicide. To constitute an offence under Section 306 IPC it is essential to prove that there was active complicity on the part of the accused to drive the deceased to commit suicide. He has referred to and relied upon the principles laid down in 2005 Cr L J (SC) 3439 to distinguish the basic difference between Section 306 and Section 498A IPC. It has been held therein by the Honble Apex Court that the basic difference is that of intention. From the testimony of prosecution witnesses the learned Trial Judge was not inspired to believe that the accused persons had any intention to instigate the victim to commit suicide.
8. He has also relied upon the principle laid down in the case of Harjit Singh Vs.- State of Punjab reported in AI Crl. L R 2006(1) (SC) page 437. It has been held therein that before invoking the provision of Section 306 IPC it is necessary to establish a) that the deceased committed suicide and b) that she had been subjected to cruelty within the meaning of Section 498A IPC. Since the charge of cruelty on demand of dowry under Section 498A fails the eventual charge under Section 306 IPC based upon the alleged torture on demand of money would automatically fail. In holding such view the learned Trial Judge has not committed any error and such a finding should not be interfered with in absence of sufficient credible evidence.
9. In view of the above facts and circumstances, I hold that the learned Trial Judge has rightly acquitted the accused and there is no merit in this appeal which is accordingly dismissed. Return the lower Court record immediately.
10. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.