Crl.A./36/2010
2022 Latest Caselaw 4438 Gua

                                                                          Page No.# 1/14

GAHC010105862010




                     THE GAUHATI HIGH COURT AT GUWAHATI
          (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                     PRINCIPAL SEAT


                                Criminal Appeal No. 36/2010


1.   Smt Radhika Kalita,
     Wife of Late Doloi Kalita,
     Resident of Village- Haberikura,
      P.S.- Kamalpur, District-Kamrup (Assam)



                                                    .............Appellant/Accused.


                     -Versus-




     The State of Assam.


                                                                ...............Respondent

Advocates for the appellant: Mr U Choudhury.

Advocate for the respondents: Mr M P Goswami, Addl. P.P.

                                                                                  Page No.# 2/14

                                           BEFORE
                        HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Judgment             :    14.11.2022


                             JUDGEMENT AND ORDER (CAV)

Heard Mr U Choudhury, learned counsel for the appellant and Mr M P Goswami,

learned Additional Public Prosecutor for the State respondent.

2. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure,

1973, against the Judgment and Order of conviction and sentence dated 31.12.09, passed by

the learned Sessions Judge (FTC) Rangiya, District-Kamrup, in Sessions Case No. 66 (K)/2007,

convicting and sentencing the accused appellant to suffer Rigorous Imprisonment for 2 (two)

years and also to pay a fine of Rs. 2,000/- (Rupees Two Thousand Only) in default of

payment of fine, to suffer Rigorous Imprisonment for another period of 3 (three) months

under Section 498 (A) of the Indian Penal Code, 1860.

3. The brief facts of the case is that one Bhabesh Barman lodged an ejahar before the

Officer-In-Charge, Kamalpur Police Station, on 27.07.2001, stating inter alia that his sister

Alaka Barman was given in marriage to one Atul Kalita about 11 years back and since after

her marriage Alaka's mother-in-law had been continuously torturing her both mentally as well

as physically by demanding dowry items like ornaments and money. Though the informant

requested her mother-in-law to stop doing such inhuman acts like torturing her daughter in

law, but she did not pay heed to her request. Subsequently, Alaka's husband Atul Kalita also

started torturing her on several occasions on various pretexts. He tortured her brutally several

times in inebriated condition. On 27.07.2001, at about 12.30 pm he got the information that Page No.# 3/14

Alaka had committed suicide. On his arrival at the place of occurrence, he noticed the dead

body was hanging in a partition of the room. As such, he suspected that there was some foul

play in committing suicide by Alaka.

4. On receipt of the complaint, a case was registered vide Kamalpur PS Case No.

125/2001, under Section 304 (B) IPC, read with Sections 3 and 4 of Dowry Prohibition Act

and the investigation was started. During investigation, the Investigating Officer visited the

place of occurrence and examined the witnesses. The inquest of the dead body of the

deceased was conducted and subsequently, forwarded the dead body for Post-Mortem

examination.

5. After completion of investigation, charge sheet was submitted against Atul Kalita and

the present appellant, Radhika Kalita, under Section 304 (B) IPC, read with Sections 3 and 4

of Dowry Prohibition Act, before the Court of learned SDJM, Rangiya. As the case was

exclusively triable by the Court of Sessions, the case was committed accordingly.

6. It is pertinent to say here that after submission of charge sheet one of the accused, Atul

Kalita died and the case against him was abated.

7. On receipt of the case from the committal Court, the charge was framed on appearance

of the present accused appellant before the trial Court, under Section 304 (B) IPC, read with

Sections 3 and 4 of Dowry Prohibition Act, which was read over and explained to the accused,

to which she pleaded not guilty and claimed to be tried.

8. To substantiate the case of the prosecution, as many as six witnesses were examined

and some documents were also exhibited. On the other hand, the accused did not choose to Page No.# 4/14

adduce any evidence. However, the plea of the accused appellant was of total denial. On

completion of the evidence on the side of the prosecution, the accused was questioned under

Section 313 CrPC, as to the incriminating circumstances, found in the evidence of prosecution

witnesses and the accused appellant has come with the version of total denial and stated that

she has been falsely implicated in this case. After hearing the argument of the learned

counsel of both the parties, the trial Court had convicted the accused appellant as aforesaid.

Hence, this appeal.

9. It was urged by the learned counsel for the appellant that the appellant was around 82

years of age, when her statement was recorded under Section 313 CrPC, on 23.12.2001.

After more than 12 years, she is now around 94 years of age and it is not known whether she

is alive or not. Apart from that, the prosecution has miserably failed to prove the guilt of the

accused/appellant for the offence under Section 498(A) IPC, by letting in cogent and

convincing evidence, both oral and documentary and in other words, the essential ingredients

of Section 498(A) IPC have not been made out to warrant conviction on the accused

appellant.

10. It is also the submission of the learned counsel for the appellant that no charge was

framed under Section 498(A) IPC and the charge was not altered also during or after the trial.

The appellant was not given an opportunity to take appropriate defences against the alleged

offence punishable under Section 498 (A) IPC. As the accused appellant was acquitted under

Section 3 and 4 of the Dowry Prohibition Act, the learned trial Court has wrongly convicted

the accused under Section 498(A) IPC under same allegation of demand of dowry. As such,

the judgment and order is liable to be set aside.

Page No.# 5/14

11. On the other hand, learned Additional Public Prosecutor while supporting the impugned

judgment of conviction and sentence would contend that the death of the deceased had

occurred in the house of the accused and the deceased committed suicide due to demand of

dowry articles and money by the accused appellant, which is evident from the evidence of

witnesses. It transpires that the deceased was subjected to harassment and cruelty in

connection with the demand of dowry and on the basis of evidence of the witnesses, the

learned trial Court has rightly convicted the accused appellant under Section 498 (A) IPC.

Hence, the impugned judgment of conviction and sentence warrants no interference by this

Court .

12. I have given my careful and anxious consideration to the rival contentions forwarded by

the either side and thoroughly scanned the entire evidence available on record and also

perused the impugned judgment of conviction, including the relevant provisions of law.

13. What is to be seen in this appeal is as to whether the prosecution has proved this case

beyond all reasonable doubt by cogent evidence and satisfied the essential ingredients of

Section 498(A) IPC.

14. At the outset, it is pertinent to say that the Hon'ble Supreme Court in various decisions

had held that nobody be convicted on surmises and conjectures. Similarly, nobody be

convicted on mere suspicion however, strong it may be. Similarly, it has been held that the

evidence can be rejected if it suffers from any serious infirmities or if there is any inherent

inconsistency in the testimony. At the same time, if there is intrinsic merit in the evidence of

the witnesses, the same cannot be rejected. Discrepancies and contradiction if found material

and substantial in respect of vital aspects of the facts, then the entire testimony can be Page No.# 6/14

discarded. Bearing in mind the aforesaid principle, the rival submissions made by the parties

are to be analysed in detail and proper analysis of the evidence is essentially required.

15. PW-1, who is the informant as well as brother of the deceased. He deposed in his

evidence that his younger sister Alaka got married to Atul Kalita, about 18/19 years back. She

died in 2001, in the house of her husband. On the date of incident, he (PW-1) was in his

house. Around 12:30 pm, some boys of their village informed him that Alaka had committed

suicide. She went there along with his elder brother, sister-in-law and his cousin. He found

Alaka in the house of the accused, hanging on the partition door. Her apparels were untidy. At

that time, Atul Kalita, his mother Radhika Kalita and his younger brother and his wife were

also present. On enquiry they came to know that around 10:00 am Alaka died. Subsequently,

he lodged the FIR, stating that Alaka had been killed, vide Exhibit- 1.

16. It is also stated by PW-1 that Alaka's husband and mother-in-law tortured her since

after her marriage. They scolded and assaulted her. They asked Alaka to bring money. He

came to know about it from Alaka, when he visited her house. At the time of her death, Alaka

had two daughters. Her younger daughter was with them and her elder daughter was with

her father,

17. In his cross-examination, PW-1 replied that his co-villager, Jogen Das informed him

about the incident. Arriving there, he found his sister hanging on the partition, He suspected

that the accused persons had killed her by hanging. He could not remember as to how many

times, Alaka had complained before them. They did not lodge any FIR at that time. The

neighbours tried to settle the matter. The husband of the deceased was the Headmaster of a

School.

Page No.# 7/14

18. PW-2 is Ratna Goswami (Barman). From her deposition, it reveals that the deceased

Alaka, got married to Atul Kalita. Alaka died in the year 2001. She came to know that Alaka

had committed suicide in the house of her husband. On receipt of the information, she went

to Alaka's house and saw her hanging in the frame of a door. At that time, Atul and his

mother were also present at home. Alaka had been tortured since after her marriage. She

was scolded and articles were also demanded. Her mother-in-law used to torture her. Atul

Kalita was a teacher in a venture School.

19. In her cross-examination, PW-2 replied that the deceased was asked to bring articles.

They claimed maintenance and they often provided it.

20. PW-3 is Tarakeshwar Mahanta, who was the Headmaster of Swahid Kanaklata Balika

Vidyalaya He deposed in his evidence that the deceased Alaka died in the house of her

husband, Atul Kalita. On the date of incident, when he was in school, Jogesh Das informed

that Alaka had died. On receipt of the information, he went to Alaka's matrimonial home and

found that Alaka's neck was fastened with a chadar and lower part of her body was touching

the ground. At that time, he saw Alaka's husband Atul, his younger brother and many

villagers.

21. This witness also stated that about six/seven years back, Alaka's marriage was

solemnized socially with Atul. He heard that at first, quarrel took place between Atul and

Alaka. The reason behind the quarrel was Alaka's inability to give birth to a baby boy. Another

reason was that her Stridhan property was of low quality. Although at first, quarrel took place

between Atul and his wife, but later on, Atul's younger brother Karuna Kalita also took part in

the quarrel.

Page No.# 8/14

22. In cross-examination, PW-3 replied that he could not remember the exact date of

marriage. Alaka's husband was a teacher in a venture school. Alaka and her family members

told him that the reason behind the quarrel was her inability to give birth to a baby boy. In

the first one/two years of their marriage, they had a cordial relation, but after the birth of

their two daughters, the quarrel took place between them. Alaka told that quarrel took place

between them as her Stridhan was of low quality.

23. PW-4 is Kalpana Kalita. From her deposition, it reveals that the accused appellant is her

sister-in-law. Deceased Alaka was her niece-in-law. She came to know that Alaka had died in

the house of her husband. She did not know as to how Alaka died.

24. In her cross-examination, PW-4 replied that Atul's house is situated at a little distance

from their house. She did not know about any quarrel, which took place between them.

Deceased Alaka also did not tell her anything during her lifetime.

25. PW-5 is Gargeswar Das, the Investigating Officer of the case, who deposed in his

evidence that on 27.07.2001, he was working at Kamalpur Police Station. On that day,

receiving a written ejahar from one Karuna Kalita, Officer-In-Charge of Kamalpur Police

Station registered a UD Case being No. 15/2001 and the charge of primary investigation was

entrusted upon him. He took the charge of investigation and proceeded to the place of

occurrence, i.e., Atul Kalita's house. He visited the place of occurrence and interrogated the

witnesses and held inquest on the dead body of the deceased vide Exhibit-2. After holding

inquest, he sent the dead body to GMCH for Post-Mortem examination. Subsequently, on

27.07.2001, another written ejahar was received from Bhabesh Kalita and the case was

registered vide Kamalpur P S Case No. 125/2001, under Section 304(B) IPC, read with Page No.# 9/14

Section 3/4 of Dowry Prohibition Act, and Officer-In-Charge himself took the charge of

investigation. He (PW-5) submitted the Final Report in the UD case.

26. In his cross- examination, PW-5 replied that when inquest was held on the dead body

of the deceased, he did not find any mark of injury. When he examined the witnesses

regarding the death of the deceased, he came to know that she had committed suicide

without the knowledge of her family members and he mentioned the same in the Inquest

Report. Although the date of lodging of ejahar was 27.07.2001, but the date of registration of

the said ejahar was 28.07.2001, He made Atul Kalita Radhika Kalita, Padmedhar Deka and

Karuna Kalita as witnesses.

27. PW-6 was the Medical Officer, who conducted Post Mortem examination on the dead

body of the deceased. From his deposition, it discloses that on 28.08.2001, he performed

Post Mortem examination, on the dead body of Alaka Kalita, in connection with Kamalpur UD

Case No. 15/2001, on police requisition and found the following:

On External examination:-

Female body of average built, complexion dark brown, eyes were closed, mouth partly

opened and tip of tongue was in between teeth. Finger nails were blue, anus and vagina was

healthy.

Post-Mortem Hypostagis was present on legs and on back and rigor mortis was present all

over the body. Dribling of saliva was present along left angle of mouth.

No external injury was detected except the ligature mark around neck.

Page No.# 10/14

On neck, one oblique and non-continuous ligature mark measuring 29 cm. x 3 cm. in size

present high up around the neck, the non-continuity (position of knot) be present behind the

right ear and below the right mastoid tip.

On dissection:-

Parchment like appears on the floor of ligature mark and congestion and contusion of neck

tissues around the ligature mark present.

All other organs were healthy and congested.

Both lungs were congested. Heart was healthy, right side of hear contains liquid blood,

left side-empty.

Stomach was healthy and empty.

Brain- Brain was congested. Organs of generation-all were healthy. Uterious was empty

(porous uterus).

The doctor opined that death was due to asphyxia, as a result of hanging, which was

antemortem and suicidal in nature.

28. On perusal of the evidence of aforesaid witnesses, it reveals that PW-1 , who is the

brother of the deceased, had only alleged Alaka's husband and her mother-in-law used to

torture her since after her marriage. They had scolded and assaulted her. They had asked

Alka to bring money. But there is no any specific complaint made against the accused

appellant that she demanded money from the deceased, for which she committed suicide.

The other witnesses examined by the prosecution, did not utter a single word that the Page No.# 11/14

accused appellant used to torture the deceased on demand of money and other dowry

articles. The vague allegation made by PW-2 was that the deceased was asked to bring

articles.

29. PW-3 deposed in his evidence that quarrel took place between the deceased Alaka and

Atul and the reason behind their quarrel was her inability to give birth to a baby boy. Perhaps

this is the main issue of quarrel between the deceased and her husband and mother-in-law.

It appears from the evidence of witnesses that the deceased had two daughters at the time

of her death. The Medical Officer also did not support the case of prosecution regarding any

torture towards the deceased, as it appears from the Post-Mortem Report that no external

injury was detected except the ligature mark around the neck of the deceased.

30. In the case at hand, the fact that the deceased had committed suicide by hanging is

not in dispute. In order to attract the provision of Section 498(A) IPC, the cruelty and

harassment meted out to the wife by her husband or her relatives of her husband should be

to the extent that it became unbearable. Thus, the essential ingredients of the Section 498

(A) IPC are:-.

a) Woman must be married.

b) She must be subjected to cruelty.

c) Cruelty must be of the nature of harassment of such woman with a view to coerce her

to meet unlawful demand for property or valuable security.

31. On a careful scrutiny of the evidence, both oral and documentary, it is seen that in the

complaint given by PW-1, who is the brother of the deceased, the allegation was only Page No.# 12/14

regarding torture on demanding dowry items like ornaments and money, but no specific date

has been mentioned either in the evidence or in the complaint when the torture has been

started on demand of dowry articles and money.

32. From the cross-examination of PW-3, it reveals that in the first one or two years of their

marriage, the deceased and her husband had a cordial relationship, but after the birth of two

daughters quarrel started between them. Alaka told that her husband scolded her because

her Stridhan was of low quality. It is also stated by PW-3 that he settled the matter on two

occasions. The matter about dowry was raised only after the birth of her daughters. But there

is no specific allegation by any of the witnesses that the present accused appellant demanded

any kind of dowry articles or money from the deceased, for which she took such a drastic

step in committing suicide.

33. The trial Court has acquitted the accused appellant under Section 4 of the Dowry

Prohibition Act, which provides for penalty for demanding dowry. When the accused appellant

was acquitted from the offence under Section 4 of D P Act, on same set of facts, convicting

the accused appellant under Section 498(A) IPC is not proper.

34. Adverting to the relevant statutory provisions, it may be noticed that cruelty as defined

in Section 498 (A) IPC means any willful conduct 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 or

harassment of the woman with a view to coercing her or any person related to her to meet

any unlawful demand for any property or valuable security on account of failure by them to

meet such demand.

Page No.# 13/14

35. In the instant case, while scrutinizing the evidence, both oral and documentary, as has

been discussed above, it came to light that there is no specific evidence let in by the

prosecution to prove that the deceased was subjected to cruelty or harassment by the

accused appellant and that such cruelty or harassment was for or in connection with any

demand for dowry.

36. In the case of Bipin Jaiswal -vs- State of Andhra Pradesh, reported in (2013) 3

SCC 684, the Hon'ble Supreme Court has laid down that the prosecution is required to prove

beyond all reasonable doubt that the deceased was subjected to cruelty or harassment by the

accused and that the onus was on the prosecution to prove beyond reasonable doubt the

ingredients of Section 498 (A) IPC and that since prosecution was not able to prove the

same, set aside the impugned Judgment of conviction and sentence.

37. In the case at hand, examining the relevant evidence as aforesaid, for the purpose of

application of aforesaid statutory provisions regarding the cause of death of the deceased,

the evidence laid down by the prosecution is not definite and there is every room for doubt.

The testimony of the prosecution witnesses cannot lead to an inference that the accused

appellant caused harassment, driving the deceased to commit suicide. In the absence of any

direct evidence, the trial Court had erred in holding that the accused appellant had driven the

deceased to commit suicide.

38. The sum and substance of the analysis of the background facts are that there is no

reliable evidence to hold that the deceased was harassed within the meaning of Section 498

A IPC. On a scrutiny of the entire evidence, I am of the considered view that the

circumstances and instances shown by the prosecution are far too meager for reaching the Page No.# 14/14

conclusion that the accused appellant had subjected her to cruelty or harassed her for or in

connection with any demand of dowry. That being so, the criminal appeal deserves to be

allowed.

39. In the result, the criminal appeal is allowed. The impugned judgment of conviction and

sentence is set aside. The accused appellant is acquitted from all the charges. The fine

amount, if any paid by the appellant is ordered to be refunded to her.

40. Send down the LCR.

JUDGE

Comparing Assistant