Calcutta High Court (Appellete Side)
Marjina Bibi & Ors vs State Of West Bengal on 7 February, 2022
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRA 333 of 2017
Marjina Bibi & Ors.
-Versus-
State of West Bengal
For the appellants : Md. Younush Mondal
For the respondent : Mr. Ranabir Roy Chowdhuri,
Mr. Mainak Gupta.
Heard & Judgement on : 07.02.2022.
Being aggrieved by and dissatisfied with the judgment and
order of conviction and sentence dated 17 th May, 2017 and 18th May,
2017 respectively passed by the Learned Additional Sessions Jude, 7 th
Court, Barasat at North 24-Parganas in Sessions Trial No.
03(09)/2013 arising out of Sessions Case No. 22(02)/2013, convicting
the appellants and sentencing them to suffer rigorous imprisonment
for two years with fine and default clause for committing offence
under Section 498A of the Indian Penal Code, the instant appeal is
filed by the convicts/appellants. The appellant no. 1 is the husband of
one Lachmi Bibi, since deceased. Appellant no. 2, Jhantu Mondal and
appellant no. 4, Tuku Mondal are the brother and sister of the
appellant no. 1 and appellant no. 3 is the wife of appellant no. 2.
One Anisur Mondal lodged a written complaint before the
Officer-in-Charge of Ashoknagar Police Station on 5 th May, 2011
stating, inter alia, that marriage of his sister, Lachmi Bibi was
contracted under Mohammedan rites and ceremonies with the
appellant no. 1 sometimes in the year 2002. At the time of marriage,
the de facto complainant gave a sum of Rs.1,00,000/- in cash and
other household furniture to the bride and bridegroom. However,
even after five years of marriage the husband and other matrimonial
relations started torturing Lachmi Bibi both physically and mentally on
demand of money. The de facto complainant further stated that they
satisfied the demand of the husband of Lachmi Bibi several times.
However, on 4th May, 2011 at about 7 p.m. he received an
information that his sister committed suicide by hanging. He rushed
to the matrimonial home of his sister and found her dead body lying
on the 'Varandah' of her matrimonial home. He and other people
took her to Ashoknagar Hospital but the Medical Officer on
examination declared her dead. It is stated by the de facto
complainant that Lachmi Bibi died as a result of torture inflicted upon
her by the appellants.
On the basis of the said complaint, Police registered Ashoknagar
Police Station Case No. 191/2011 dated 05.05.2011 under Sections
498A/306 of the Indian Penal Code and took up the case for
investigation. On completion of investigation charge-sheet was
submitted against the accused persons under Sections 498A/306 of
the Indian Penal Code.
After the case being committed to the Court of Sessions, it was
transferred to the 7th Court of the Learned Additional Sessions Judge
at Barasat for trial. The accused persons duly appeared before the
Learned Trial Judge. Charge was framed against them under Section
498A read with Section 34 of the Indian Penal Code and Section 306
read with Section 34 of the Indian Penal Code. As the accused
persons pleaded not guilty when the charge was read over and
explained to them, trial of the case commenced.
It is further found from the record that in order to bring home
the charge against the accused persons prosecution examined 13
witnesses. Amongst them, the de facto complainant deposed before
the Trial Court as P.W. 1. P.W. 2 is another brother of deceased
Lachmi Bibi. P.W. 3, Habibur Rahaman @ Mondal is also a brother of
deceased Lachmi Bibi. P.W. 4, Rashida Bibi is the younger sister of
deceased Lachmi Bibi. P.W. 5, Mominul Islam @ Momonur is a
neighbour of the matrimonial home of deceased Lachim Bibi. P.W. 6,
Safikul Islam is a resident of the paternal village of Lachmi Bibi. P.W.
7, Dr. Suprity Ghorai is the Autopsy Surgeon. P.W. 8, Prosanta Ghosh
was an Assistant Sub-Inspector of Police. He registered Ashoknagar
Police Station Case No. 191/2011 under Sections 498A/306 of the
Indian Penal Code on receipt of complaint from P.W. 1. P.W. 9,
Selima Bewa is another neighbour of the matrimonial home of Lachmi
Bibi. P.W. 11, Saidul Haque is a village quack who once medically
treated Lachmi Bibi. P.W. 12 and P.W. 13 are the Police Officers.
P.W. 12 held inquest over the dead body of Lachmi Bibi and P.W. 13
conducted investigation of the case.
From the evidence-on-record, it is ascertained that Lachmi Bibi
committed suicide by hanging at her matrimonial home after about
nine years of her marriage. The Learned Trial Judge rightly held that
as the victim died after nine years of marriage, prosecution is not
entitled to get presumptory benefit of Section 113A of the Evidence
Act. Therefore, abatement to commit suicide is required to be proved
by adducing cogent, satisfactory, believable and unblemished
evidence.
Bearing this principle in mind if the evidence-on-record is
scanned carefully it is found that P.W. 1 has alleged that after five
years of marriage the accused persons demanded money from the
deceased and tortured her both physically and mentally. The
introductory part of the evidence of P.W. 1 shows that he gave bridal
presents in the form of furniture and cash money to the husband of
his sister. But delivery of such furniture and cash money, even if
accepted in the absence of any documentary evidence, cannot be
termed as dowry because those were bridal presents not demanded
as a condition of marriage by appellant no. 1 with Lachmi Bibi. In his
cross-examination, he candidly admitted that during the lifetime of
Lachmi he went to her matrimonial home about 50/60 times. During
his visit, he was cordially treated by his sister and her husband. They
also used to visit the house of the de facto complainant and they were
cordially treated by the de facto complainant. Therefore, it is
ascertained from the evidence of the de facto complainant as well as
his brother and sisters that the relation between the said two families
were cordial and no occasion arose for the de facto complainant or his
sister, since deceased to lodge any complaint against the accused
persons.
The witnesses who are the neighbours of the matrimonial home
of the accused persons stated on oath that the relation between
Lachmi Bibi and her husband was very cordial till her unnatural death.
P.W. 11 who is a disinterested witness also stated that the relation
between Lachmi Bibi and her husband was very good and during her
illness her husband took her to P.W. 11 for her treatment.
Section 498A of the Indian Penal Code runs thus: -
"498A. Husband or relative 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".
Definition of 'cruelty' is available in explanation (a) and (b) of
Section 498A of the Indian Penal Code. On careful perusal of the
evidence in Lower Court Record I do not find any ingredient in support
of the essential element of Section 498A, explanation (a) to the effect
that the accused persons made certain wilful conduct which is of such
a nature as is likely to drive Lachmi Bibi to commit suicide. Evidence
on this score is absolutely silent. There is also no evidence that the
deceased was harassed to meet unlawful demand for money. In
order to prove such ingredient there must be substantial evidence to
indicate that illegal demand was made by the husband and other
matrimonial relations of the deceased. In respect of the death of a
married woman where the question is whether the death was suicide,
it may be necessary to determine whether the victim had been
subjected to harassment by her in-laws and this may be a continuous
built up right from the date of marriage. It is not every harassment
or every type of cruelty that would attract Section 498A of the Indian
Penal Code. It must be established that harassment was with a view
to force the wife to commit suicide or fulfil illegal demands of husband
and other matrimonial relations.
It is needless to say that the evidence-on-record is absolutely
silent on the above aspect of ingredient of evidence under Section
498A of the Indian Penal Code.
For the reasons stated above, this Court is of the view that the
judgment and order of conviction and sentence passed by the Learned
Trial Judge in Sessions Trial No. 03(09)/2013 cannot be sustained.
Accordingly, the instant appeal is allowed. The order of
conviction and sentence passed by Additional Sessions Judge, 7 th
Court, Barasat, North 24-Parganas in Sessions Trial No. 03(09)/2013
arising out of Sessions Case No. 22(02)/2013 is set aside.
The accused is acquitted from the charge, set at liberty and
release from his bail bond.
Parties are at liberty to act on the server copy of this order.
[Bibek Chaudhuri, J.]
Srimanta
A. R. (Court)
