Kanchan Chakraborty, J.
The challenge in this appeal is the judgment and order dated 5th September, 2009 passed by the learned Additional Sessions Judge, Fast Track Court-5,, Barasat in Sessions Case No.SC-2(3) of 2005 (S.T.1(7) of 2005) whereby the appellants Firoj Ali Molla and Siraj Ali were convicted for committing offence under Section 498A/306 of the I.P.C. and sentenced to suffer R.I. for seven years and two years respectively together with fine with a direction that the imprisonment would run concurrently.
The appellants have challenged the judgment on the following grounds;
a) that the learned Judge failed to appreciate the evidence on record in its true and proper perspective;
b) that the learned Judge was oblivious of the material discrepancies and contradiction in the evidence on record;
c) that the learned Judge relied on the evidence of interested witnesses only and passed the judgment;
d) that the judgment impugned, being bad in law, is liable to be set aside;
To appreciate the entire matter, it would be expedient to refer the factual matrix succinctly.
One Md. Nurul Islam of Chalkdhulot lodged one F.I.R. with Deganga Police Station alleging therein that her daughter Nazma bibi was married with Firoj Ali Molla, appellant no.1 on 2.11.2003 committed suicide after taking poison as she was subjected to mental and physical torture for not meeting the demand of dowry of the appellants. She died within a period of 7/8 months of her marriage. It was alleged further that there was love affairs between Firoj and Nazma and Firoj eloped her and subsequently in a ‘Salish’, it was decided that Firoj should marry Nazma. Despite unwillingness from the side of Nazma’s family, marriage had taken place. Nazma resided in her husband’s house for about three months after marriage but came back to her parents house as she was discarded by Firoj. She started residing in her paternal house and stayed there for about three months. One day prior to the death of incident, her mother took her to Firoj’s house but she was physically and mentally tortured by Firoj and other in-laws in presence of her mother. They had to come back and on the next day, she committed suicide by taking poison. On the basis of the said F.I.R., Deganga Police Station Case No.170 dated 2.11.2003 under Sections 498A/306 of the I.P.C. was started against four accused persons including the appellants. All the four accused persons including the appellants were arrayed to face the charges under Section 306/498A/34 of the I.P.C. to which they pleaded not guilty and accordingly, the trial commenced. In course of trial, prosecution examined as many as eight witnesses.
The F.I.R., sketch map of the place of occurrence and the post mortem report were admitted into evidence and marked exhibit on behalf of the prosecution. No witness was examined nor any document was placed in course of trial by the defence. The learned Trial Court, upon consideration of the evidence, oral and documentary, found that out of four accused persons, the appellants were guilty of the offence under Section 498A/306 of the I.P.C. and accordingly, recorded their conviction and sentences which is impugned in this appeal on the ground already stated.
Mr. Pal, learned Counsel appearing on behalf of the appellant no.2, Siraj Ali contended that there is no allegation, whatsoever, against Siraj be it causing torture ‘Nazma’ or abating her to commit suicide. He contended further that there was love affairs between Nazma and Firoj and the evidence adduced on behalf of the prosecution has made it clear that there was no demand of dowry at the time of marriage at any point of time. Nazma died not in her matrimonial house but in her paternal house. The visera was not placed before the Court and there was no examination of the Doctor who conducted the post mortem leaving a great doubt as to the cause of death. He contended that as far as his client Siraj is concerned, prosecution has miserably failed to bring home the charges.
Mrs. Sinha, learned Amicus Curiae appearing on behalf of the appellant Firoj Ali Molla contended that the F.I.R. being Ext.1 is conspicuously silent about the demand of dowry at any point of time.She submitted that the F.I.R. disclosed that Nazma was not in her matrimonial house but in her paternal house for last 3 / 4 months before her death. Therefore, there was no proximity between her death and overt act, if any, on the part of the appellant Firoj. The fact that her mother had been to the house of Firoj a day before her death although stated by the witnesses, it is confusing when she came back and what actually led her to commit suicide. Mrs. Sinha further stated that according to the prosecution, she was physically and mentally tortured by Firoj in her matrimonial house when she and her mother went there. But no mark of injury was found on her dead body.
At the Bar, the following decisions have been referred to;
a) Gangula Mohan Reddy Vs. State of Andhra Pradesh, reported in A.I.R. 2010 SC 327;
b) Hazarilal Vs. State of Madhya Pradesh, reported in (2009) 13 SCC 783;
c) State of Andhra Pradesh Vs. M. Madhusudhan Rao, reported in (2008) 15 SCC 582;
d) Ramprahalad Mishra and Ors. Vs. State of West Bengal and Ors., reported in 2008(4) CHN 921;
e) Bipul Ranjan Paul Vs. state of West Bengal, reported in 2007 (3) CHN 97;
f) Sanjoy Saha @ Sanju and Ors. Vs. State of West Bengal, reported in (2008) 1 C. Cr. LR (Cri) 115;
g) Swami Prahaladdas Vs. State of Madhya Pradesh and Anr. , reported in 1995 SCC (Cri) 943;
h) Subha Narayan Vs. State of West Bengal and Ors., reported in 2006 (3) CHN 651;
i) Annakali Dutta and Ors. Vs. State, reported in 1990 (2) CHN 38.
On careful appraisal of the evidence on record, it is found that the appellants never raised any question as to the nature of death of Nazma. No question, whatsoever, even in form of suggestion was put to any prosecution witnesses to the effect that the death of Nazma was natural and normal and not suicidal as claimed by the prosecution. The post mortem report which has been marked Ext.3 shows that there was nothing wrong in the organs of the Nazma but stomach was containing blackish colour fluid having foul smell unknown. Doctor kept his opinion reserved till chemical analysis of viscera. The witnesses examined on behalf of the prosecution categorically and consistently stated that Nazma committed suicide by taking poison. Although the inquest was done. The report was not admitted into evidence and marked exhibit. It has already been stated that the defence has admitted the position that Nazma’s death was unnatural and suicidal. That being the fact, this Court also thinks it that Nazma’s death was suicidal in nature.
Nazma’s marriage with appellant Firoj had taken place seven/eight months prior to her unnatural death. Apparently, there was no reason for Nazma to put an end to her life. The F.I.R. which has been marked as Ext.1 discloses that sometimes after marriage, there was discord between Nazma and her husband, appellant Firoj.Nazma came back to her paternal house and living there for about three months. Neither the appellants nor any member of their family came to take her back. Nazma’s mother took Nazma to her matrimonial house prior to her death at night. Nazma was physically and mentally tortured there. On the next date, the dead body of Nazma was found in her paternal house.
Mrs. Sinha, learned Amicus Curiae appearing on behalf of the appellant No.1, Firoj Ali Molla contended that the F.I.R. is conspicuously silent about the demands of dowry at any point of time. It is true that in the F.I.R. (Ext.1), nothing about the demand of dowry has been mentioned. But that cannot be a ground for discarding the prosecution case of demand of dowry afterwards by Firoj and his family members. The F.I.R. is not substantive piece of evidence nor it should disclose or contain each and every detail of fact. The fact that Nazma was tortured physically and mentally in presence of her mother in her matrimonial house before her death as been categorically mentioned in the F.I.R. This portion of the fact stated in the F.I.R. cannot possibly be ignored.
The lodger of the F.I.R. is the father of Nazma. He has been examined as P.W.1. He stated that Nazma consumed poison as she failed to bear the torture any more by her husband and in law’s. He stated further that Nazma was more or less all right in her matrimonial house for 3 / 4 days after marriage but thereafter she was subjected to physical and mental torture over demand of additional dowry of Rs.20,000/-, three sets of ornaments and utensils. He stated further that he assured the appellants and their family members that he would meet their demand within a considerable period of time. His daughter Nazma disclosed her plight to the P.W.1 and the torture continued for a period of about four months. She was assaulted and Nazma had to leave matrimonial house and started living in her paternal house. The appellants told Nazma to consume poison as P.W.1 could not satisfy their demand. On the next afternoon, Nazma consumed poison and died.
From the cross examination of P.W.1, it can be gathered that the P.W.1 told the scribe of the F.I.R. to write about the demand of dower by the appellants and their family members but the scribe did not incorporate the same in the F.I.R. It is also gathered from the cross examination of the P.W.1 that Firoj eloped Nazma as they had love affairs and after few days spending somewhere, they came back to the house of Firoj and marriage took place. There was no demand of dower at that time. The P.W.1 denied the suggestions put to him in his cross examination by defence that the appellants never tortured her physically and mentally and that there was no demand of dowry after the marriage and that they never instigated Nazma to commit suicide by consuming poison.
The P.W.2 Anju Manara Bibi, mother of Nazma. She corroborated the statement of P.W.1. Her statement is not only corroborating but also consistent and credible in a sense that she accompanied Nazma to the house of Firoj where Nzma was physically and mentally tortured in her presence for her failure to meet the demand of dower. She supported the prosecution case and the statement of the P.W.1 to the effect that the demand of dower was made 3 / 4 days after the marriage not at the time of marriage and for that she was subjected to physical and mental torture, she had to take shelter in her father’s house and that prior to her death, she had been to her matrimonial house with her mother (P.W.2) where she was physically and mentally tortured for not meeting the demand of dower and on the next date, she committed suicide. She stated further that torture continued for a period of 3 / 4 months.
I have carefully gone through the statement of the P.W.2 made in cross examination and found that her statement supporting the prosecution case has not been shakened at all rather she faced the test of cross examination quite confidently. The learned Trial Court believed the statement of P.Ws.1 and 2 and I do not find any reason to say that the learned Trial Court made mistake or error in accepting the statement of P.Ws.1 and 2.
The P.Ws.3 and 4 are brothers of Nazma. They have also corroborated the statements of their father and mother. There is nothing in their examination-in-chief or in cross-examination which would suggest that what they have stated and what the P.Ws.1 and 2 have stated is false.
The P.W.5 refused to make any comment but stated that Nazma committed suicide by consuming poison. He had no knowledge as to whether Nazma was subjected to torture in her matrimonial house.
P.W.6 is a relation of Nazma. He has stated that at the time of marriage, there was no talk for dower and the marriage took place against their will but immediately after the marriage, the demand of dower was made. The statement of P.W.6 supported the prosecution case as well as the statement of P.Ws.1, 2, 3 and 4. He supported the prosecution statement of the P.W.1 that assurance was given that the dower would be paid in future. He stated further that Nazma disclosed her plight whenever she visited his house and he further stated that Nazma along with her mother went to the matrimonial house on the previous date to request the appellant Firoj to take back Nazma at her matrimonial home but Nazma was assaulted in presence of her mother (P.W.2). Nazma’s mother returned but Nazma remained there and on the next morning, Nazma came back and committed suicide.
I have carefully scanned the statement of P.W.6 made in his cross-examination and it is astonishing to see that the defence failed to make out any case in their support rather the statement of the P.W.6 in his cross-examination strengthened the prosecution case.
In the case in hand, P.W.7 is the only independent witness examined on behalf of the prosecution. He is not related to either of the parties. He stated that there was a ‘Salish’ over the affairs of Firoj and Nazma who left their house together for a couple of days. There was a ‘Salish’ in the village and in that ‘Salish’, it was decided that Firoj should marry Nazma. There was no talk of demand of dower at that time. Nazma’s parent had to accept the said decision of ‘Salish’.P.W.7 stated that 3 / 4 months after the marriage, fresh demand for dower was made by Firoj and his family members. Nazma’s father failed to meet the demand. Firoj deserted Nazma for that reason and made it clear that Nazma would be taken back, if dower is paid.Nazma settled in her paternal house for 2 / 3 months and thereafter committed suicide. The P.W.7 denied the suggestion put to him in his cross examination that there was no demand of dower, Nazma was never taken by her mother to her matrimonial house prior to her death and that Nazma never disclosed to him about the demand of dower.
The P.W.8 is the I.O. of the case who sent viscera of Nazma for examination but could not collect it. There was no elaborate cross-examination of the P.W.8 nor contradiction of the statements made by the witnesses to him under Section 161 of the Cr. P. C. was taken seriously.
The learned Trial Court appraised the evidence and considered all the points raised in this appeal. The learned Court found that the evidence of P.W.1 was corroborated by P.Ws.2, 3, 4, 6 and 7. The learned Court also found that the fact that P.W.2 taken Nazma to her matrimonial house a day before her death was established by sufficient and satisfactory evidence. The learned Court also found that the fact that Nazma was assaulted by Firoj in presence of her mother and they had to return back home as Nazma was not accepted by Firoj, have also been established by trustworthy, credible, consistent and corroborating evidence.Therefore, the learned Court recorded the order of conviction and sentence.
Section 498A of the I.P.C. is set out below;
“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 purpose of this section, “cruelty” means
a) any wilful 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.”
A bare reading of the language of the Section makes it abundantly clear that the definition of cruelty is circumscribed by the explanation. In view of Clause (a) to the explanation, it must be a wilful conduct, which postulates an obstinate and deliberate behaviour on behalf of the offender. The conduct beside being willful must result in the likelihood of driving the woman concerned either to commit suicide, or to cause grave injury or danger to life, limb or health. To attract Section 498A of the I.P.C., it must be established that the cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide, or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract Section 498A of the I.P.C.
It is more or less settled principle of law that harassment for dowry also answers cruelty. When repeated demands for dowry on newly married bride and on her parents were made and the wife stated after her marriage till her death about the demand for dowry to her relations and others, the husband and in laws’ are liable for committing offence of cruelty within the meaning of Section 498A of the I.P.C.
In the instant case, although prosecution stated about the overt act of appellant Firoj in the matter of not fulfilling demand and causing cruelty by way of physical and mental torture of Nazma, no specific allegations has been made against the appellant Siraj Ali. It has no where been stated also that Siraj, in any manner, instigated Nazma to commit suicide as she failed to meet the demand of dowry made on behalf of the family of Firoj. To be stated precisely, prosecution evidence is lacking in respect of alleged offence of cruelty on Nazma and abating her to commit suicide as far as appellant Siraj is concerned. The learned Court found the other inmates not guilty and Siraj being brother-in-law of Nazma has been found guilty for no specific reason assigned by the learned Trial Court. It is already stated that there is no direct or indirect evidence against the appellant Siraj to the effect that he caused cruelty on Nazma and abated her to commit suicide in any manner.
On careful scrutiny of the evidence recorded by the learned Trial Court, I am of the opinion that the prosecution has failed to establish the case against the appellant Siraj and the learned Trial Court ought to have acquitted him in stead of recording his conviction.
Mr. Panda, learned advocate for the State of West Bengal, contended that there is clinching evidence supporting the prosecution case of cruelty on the victim by the appellants. He further contended that besides the P.Ws. 1, 2, 3 and 4, the independent witness, P.W. 7 has also supported the prosecution case of torture/cruelty on the victim, Nazma. Mr. Punda contended that the learned Trial Court made no error or wrong in convicting the appellants under Sections 498A and 306 of the Indian Penal Code.
As far as the appellant, Firoz is concerned, I find that there is consistent, corroborating and credible evidence against him in respect of inflicting cruelty on Nazma, the victim. Right from the First Information Report (Exhibit-1) to the evidences of P.Ws. 1, 2, 3, 4, 6 and 7 it is established that since after the marriage, Firoz demanded dowry and inflicted mental and physical torture on Nazma so long she was residing in her matrimonial house. She had to leave her matrimonial house and take shelter in her paternal house.Immediately before her death, her mother, (P.W. 2) took her to her matrimonial house so that Firoz might accept Nazma again. But, on that event also, she was tortured physically in presence of her mother and she had to return back to her paternal house. She was not accepted by Firoz Ali Molla as she failed to meet the demand of Firoz Ali Molla.
On careful appraisal of the evidence of the prosecution witnesses, it can be said without hesitation that there was no single incident of torture but it was continuos in nature immediately after marriage, which continued till the date her mother took her to her matrimonial house immediately before her death.
Mrs. Sinha, learned amicus curiae of the appellant, Firoz Ali Molla, contended that there was no mark of injury on the dead body of Nazma. This fact alone does not necessarily imply that Nazma was not manhandled by Firoz Ali Molla on the date she was taken by her mother to her matrimonial house or that she was not tortured during the period of her staying in her matrimonial house. It is not denied that Nazma died by taking poison and that too immediately after her return from her matrimonial house after being tortured. It has already stated that cruelty as defined in Section 498A of the Indian penal Code is circumscribed by the explanation and in view of clause (a) to the explanation, it must be a wilful conduct, which postulates an obstinate and deliberate behaviour on the part of the offender. The conduct besides being wilful, must result in the likelihood of driving the woman concerned either to commit suicide or to cause grave injury or danger to life, limb or death.
The deceased wife was physically tortured and abused by Firoz Ali Molla on the date her mother taken her to her matrimonial house so that matter can be settled between them. On the next date, she died. Prior to that, during her stay in her matrimonial house after marriage, she was also subjected to physical and mental torture. That fact has been reflected in the evidence categorically. The only independent witness, i.e., the P.W. 7, has stated categorically that demand of dowry was raised by Firoz after marriage and due to poverty, the father of Nazma failed to satisfy the demand. Firoz left his wife as demand was not met. Firoz made it clear that he would take back his wife if dower is paid. This is an example of torture, which is amounting to cruelty within the meaning of Section 498A of the Indian Penal Code.
In Hazarilal’s case (supra) there was no material before the Court to show as to how the deceased was being harassed or subjected to cruelty. Therefore, the Hon’ble Apex Court found that the prosecution case failed in absence of any material. This is not the exact position in the case in hands. In the case in hands, there are materials enough to show that demand of dowry was made immediately after the marriage and for that, the victim was subjected to physical and mental torture, which actually had driven her to put an end to her life.
The factual aspects in the case of State of Andhra Pradesh (supra) are quite different than that of this case. There was an attempt to commit suicide and the Hon’ble Court came to a conclusion that merely because there was an attempt to commit suicide, it cannot be presumed that it was on account of harassment or cruelty meted out to her. In that case, the sole testimony of the victim was relied on by the Court and the Hon’ble Apex Court found discrepancies on material points and found that the prosecution failed to prove the case under Section 498A of the Indian Penal Code against the appellant. In the instant case, the factual aspect is quite different. Here, the victim committed suicide almost immediately after she was manhandled in presence of her matter for not meeting the demand of dowry. Prior to that, while she living in her matrimonial house for 3-4 months, she was subjected to physical and mental torture, which has been stated categorically by all the witnesses including the independent witness, the P.W. 7.
The decision in Ramprahalad Mishra (supra) is not applicable in the instant case. It was a decision in revision and this Court set out the principles relating to exercising of power of revisional Court.
The factual aspect of that case is also quite different than that of this case. There was serious dispute or quarrel between the victim and the mother-in-law and excepting that dispute and quarrel, which is normal in every family, no other evidence regarding torture, mental and physical, was found place on the record.
In Sanjoy Saha @ Sanju (supra), the Court found that the prosecution witnesses were not reliable. It was a case of burn injury and husband himself received burn injuries in order to save the victim. Evidence also proved that there was cordial relationship between the two families and there was no evidence of demand of dowry. Therefore, Court has taken a view that offence under Section 498A of the Indian Penal Code was not established.
It has already been stated that the prosecution has adduced cogent, credible, consistent and trustworthy evidence regarding demand of dowry immediately after marriage and physical and mental torture on the victim who, ultimately, died by taking poison immediately after the incident of harassment took place in presence of her mother. During her stay in her matrimonial house, there was constant demand of dowry and she had to take shelter in her paternal house. Her mother tried to resolve the differences and had taken her to her matrimonial house. She was not only abused and manhandled but was asked not to come again without fulfilling the demand. This is, in my humble estimate, is cruelty/harassment within the meaning of Section 498A of the Indian Penal Code as the victim could not bear the harassment/cruelty and put her life to an end by taking poison on the next date.
Mrs. Sinha, the learned amicus curiae for the appellant, Firoz Ali Molla, contended that there was no proximity in between the overt act on the part of Firoz and the death of Nazma. I do not accept this contention of Mrs. Sinha. The death was caused within few hours of the incident of manhandling and harassment in presence of the P.W.
2. So, it has got connection with each other. Accordingly, this Court is of the view that the prosecution has successfully brought home the charge under Section 498A of the Indian Penal Code against the appellant, Firoz.
As regards the offence under Section 306 of the Indian Penal Code, suffice it to say that the learned Court has made an error in convicting the appellants under Section 306 of the Indian penal Code because there is no element or evidence on the prosecution side suggesting that the appellants abated Nazma to commit suicide in any manner, whatsoever.
On careful appraisal of the evidence it appears that on the date the victim was manhandled in presence of her mother, Firoz did not utter anything amounting to instigating the victim to commit suicide. She was simply manhandled and harassed in presence of her mother and asked not to come against without meeting the demand.This action or overt act on the part of Firoz might have prompted the victim to commit suicide, but it cannot be said that the appellant, Firoz has instigated her to commit suicide by doing so. He had been torturing, mentally, and physically, the victim since marriage. He might have said once that victim should commit suicide, but that fact has no proximity or cannot be said to be the proximate cause for commission of suicide. In this respect, the decisions referred to in Swamy Prahaladdas vs. State of M.P. and Anr. (supra), Subha Narayan vs. State of West Bengal and Ors. (supra) and Annakali Dutta vs. State (supra) can well be referred to.
This Court finds that the learned Trial Court did not discuss as to how the appellants have abated the victim to commit suicide. This portion of the prosecution case was not at all discussed by the learned Judge. “Abetment” as has been defined in Section 107 of the Indian Penal Code, is set out below:
“107. Abetment of a thing. – A person abets the doing of a thing, who –
First. – Instigates any person to do that thing; or
Secondly. – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly. – Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. – A person who, by willful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”
On careful appraisal of the evidence on record it appears that there was no instigation or conspiracy or any overt act or omission or intentional aid on the part of the appellants amounting to abatement to commit suicide of Nazma. Simply because Nazma was subjected to torture does not necessarily meant that there was abatement to commit suicide. The learned Trial Court failed to appreciate that legal position in this respect and, in fact, restrained from discussing over the issue without assigning any reason.
Be that as it may, this Court is of the opinion that the prosecution has failed to bring home the charge under Section 306 of the Indian Penal Code against both the appellants. Therefore, they ought to have been acquitted from the charge under Section 306 of the Indian Penal Code.
In view of discussion above, I allow the appeal in part. While setting aside the order of conviction of Appellant Siraj Ali Molla, this Court upholds the order of conviction and sentence in respect of appellant Firoz Ali Molla under Section 498A of the Indian Penal Code.The order of conviction and sentence under Section 306 of the Indian Penal Code against the appellant Firoz Ali Molla is also set aside.
Firoz Ali Molla is in custody since 4th September, 2009 in connection with this case, i.e., he has already undergone the sentence imposed by the Court for committing offence under Section 498A of the Indian Penal Code. That being so, he should be released without delay.
Accordingly, the appeal is disposed of.
There will, however, be no order as to costs.
Interim order, if any, stands vacated.
I would like to appreciate the service rendered by Mrs. Sinha as amicus curiae. She deserves fees for that purpose. Accordingly, I direct the Secretary, High Court Legal Service Authority, to pay Rs.1000/- (One thousand) to Mrs. Sinha.
Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.