Crl.A. 72/2001 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA THE GAUHATI HIGH COURT HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA; MIZORAM AND ARUNACHA L PRADESH CRIMINAL APPEAL NO.72 OF 2001 Mohd. Hafizuddin Ahmed Son of Late Didaruddin Ahmed Resident of Village: Bhuyanbari (Dokanpara) P.S. & P.O. Sipajhar, District: Darrang, Assam &..Accused/Appellant -Vs.- The State of Assam &..Respondent BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA For the appellant ::Mr.M.Choudhury, Mr.P.Bora Advocates. For the respondent ::Mr.D.Das, Addl.P.P.,Assam Date of hearing & Judgment ::6.11.2008 JUDGMENT & ORDER(ORAL) This appeal is directed against the judgment and order dated 7.3.2001 pa ssed by the learned Sessions Judge, Darrang, Mangaldai in Sessions Case No. 48(D M)/97 convicting the accused appellant under Section 498 A of the Indian Penal C ode(IPC for short) and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of rupees 1,000/- only , in default to undergo further rigorous imprisonment for three months. 2. The prosecution case in brief, is that the accused appellant married Gul Bahar Begum, the sister of the prosecutrix/complainant Gul Nahar Begum, accordi ng to Muslim rites and custom. At the time of her marriage, Gul Bahar Begum was presented with some goods and articles by her parents and relatives and after th e marriage they started to enjoy conjugal life. But off and on the accused appel lant used to demand dowry. For non-payment of demanded dowry and also on the pre text of not giving birth of a child, the accused started to torture Gulbahar and assaulted her and even driven her out many times. On 12.7.1996 at 10-30 P.M. th e accused assaulted and abused Gulbahar demanding various articles as dowry and the sister of the prosecutrix finding no alternative had to take shelter in the house of her parents with the prosecutrix as their parents already died. The wif e of the accused appellant being pregnant at that time, due to assault had suffe red from heavy bleeding and so she took treatment at Sipajhar Hospital, wherefro m she was referred to Mangaldai Civil Hospital wherein she was treated by Dr.Bin od Ch.Kalita and miscarried the child. 3. The said complaint was lodged on 3.8.1996 before the learned Chief Judi cial Magistrate (CJM for short) Darrang, Mangaldoi and the learned CJM on receip t of the said complaint forwarded the same to the Officer-in-Charge, Sipajhar Po lice Station for investigation. Aggrieved by the action of the police authority for not taking any steps in the complaint petition and also for not arresting th e accused the complainant filed a Narazi petition before the learned CJM, who transferred it to the Court of learned Judicial Magistrate for disposal. The lea rned court below after receipt of the alleged Narazi petition called for a rep ort from the police and upon receipt of the report from police, being not satisf ied, proceeded with the complaint case, recorded the statement of the complainan t under Section 202 of the Criminal Procedure code (Cr.P.C. for short) and findi ng a prima facie case against the accused appellant under Section 323/325/313/49 8-A/506 IPC, issued summon to the accused appellant. The offence being triable b y the court of Sessions, the learned Magistrate committed the same to the court of Sessions, Darrang after appearance of the accused appellant. 4. On the materials available on record and after hearing the learned couns el for the parties, the learned Sessions Judge framed charges under Section 313/ 498-A of the IPC. The charges being read over and explained to the accused, he p leaded not guilty and claimed to be tried. 5. During the course of trial the prosecution examined six witnesses includ ing the doctor and also exhibited certain documents. However defence did not add uce any evidence and the defence plea is that of total denial. The learned trial Court having considered the materials on record including the testimony of six witnesses so examined on behalf of the prosecution as well as having heard the l earned counsel appearing for the parties came to a finding vide judgment and ord er dated 7.3.2001 that the prosecution has proved the case beyond all reasonable doubt under Section 498 A IPC only. Accordingly, the appellant was convicted an d sentenced as already indicated above. Hence the instant appeal. 6. Heard Mr.M.Choudhury learned counsel appearing for the appellant. Also h eard Mr.D.Das learned Additional Public Prosecutor, Assam. 7. Assailing the impugned conviction and sentence, Mr.Choudhury, learned co unsel has strenuously argued that there was no convincing and compelling materia ls at all to rope with the appellant to the offence under Section 498 A IPC and such non- availability of the materials are apparent on the face of the record, particularly from the deposition of witnesses, namely, PWs 1,2 & 5,who are the m aterial witnesses. 8. On the other hand, Mr.Das, learned Addl. P.P. argued that the evidence o f PW 1 and PW 2 are sufficient to convict the appellant and categorically stated that basically the deposition of PW 1 is enough for convicting accused appellan t. Though there are some minor discrepancies in the evidence of prosecution witn esses that will not give away the conviction and sentence of the appellant. Ther efore, submitted Mr.Das, that the learned trial Court has rightly passed the jud gment of conviction, which may not be interfered in this appeal. 9. In view of the submissions and arguments advanced by the rival parties l et us evaluate the evidence on record. 10. PW 1 Gul Bahar Begum is the alleged victim. She had stated that her sist er Gul Nahar (PW 2) instituted the case. She stated that her pregnancy was termi nated at three months through administration of medicine. On three occasions, he r pregnancy was terminated. Again when she was seven months pregnancy, her husba nd tried to give medicine but when she refused she was tortured by her husband a nd thus she went to her parents house, which is nearby. She was admitted in the Sipajhar Hospital as there was bleeding, and thereafter she was shifted to the M angaldai Civil Hospital as per advise of doctor of Sipajhar Hospital where she w as treated by Dr.Binod Kalita. In Mangaldai Civil Hospital when she was under tr eatment a dead male child was born but her husband did not enquire nor borne any expenses though he was a clerk in the Deputy Commissioner’s office, Mangaldai. During her cross-examination PW-1 stated that she did not remember whether two c ases were filed or not. She did not know on which complaint, the case under tria l was registered. She further deposed that she did not know whether on 3.8.96 her sister Gul Nahar had written complaint and filed it before the Magistrate. S he even did not remember whether she had stated earlier about the termination of pregnancy of three months on three occasions. When asked about the termination of her pregnancy, PW 1 deposed that she did not remember when the doctor treated her for the first time and did not know the name of the doctor. She has stated that on each of the three occasions, the doctor had prescribed medicine in writi ng after termination of pregnancy but she did not know what had happened to thos e papers. She even did not know on which date she was driven out of her matrimon ial home. She stated that on the last occasion the doctor had not terminated the pregnancy and the foetus had automatically come out but she has specifically ad mitted that there was no injury on her body on the day when she alleged that she was driven out of the house by the accused appellant by beating and kicking. She has further stated that her husband had taken her for the purpose of examina tion to Gurucharan Nursing Home at Guwahati. On 20.5.1996 when she was pregnant, her husband again took her to Mangaldoi X-Ray clinic and Laboratory where she w as examined of ’Pelvic Organ’. The suggestion put to her that her husband had gi ven her Talaq as she came out from matrimonial house and that she was being tr eated by her husband have been denied. 11. PW 2 Gul Nahar Begum is the younger sister of PW 1 who lodged the first complaint on 3.8.96 as well as the second complaint on 10.10.96. She has deposed that the accused appellant had compelled her sister for abortion and the foetus was seven months old. Before that she was driven out of the matrimonial house i n the night, by the accused appellant, after being kicked in her sister’s abdome n. At that time she was pregnant. PW 1 came to their house and she told that she was driven out after being given blows and kick in the abdomen. PW 1 thereafter was taken to the Sipajhar Hospital for treatment wherefrom she was referred to the Mangaldai Civil Hospital. Dr.Binod Kalita treated PW 1 and a dead child was born to her on 3.8.96. On that day itself she lodged the complaint. She has furt her deposed about the circumstances leading to filing of the second complaint. During cross-examination PW 2 stated that she did not remember when PW 1 was dri ven out of the house by the accused appellant and she also did not remember the period during which PW 1 was at the hospital. She only remembered that her siste r was at hospital for 26 days. PW 2 has further stated that when her sister (PW 1) reached home on the day of the incident she was alone and at that time she wa s sleeping and no one had visited their house. She has also stated that after st aying 18 days in the hospital PW-1 gave birth to a dead child. The doctor at Man galdai Hospital advised them to go to Guwahati. PW-2 admitted that in the Ext.1, the complaint, dated 10.10.96 she mentioned the day of incident as 12.7.98. Ext .Ka was the complaint-dated 3.8.96. She stated that the complaint dated 3.8.96 a nd 10.10.96 were written according to her and she has been taking steps in the c ase from beginning. She has simply stated that village people know about demand of dowry. The suggestion put to her that as her sister PW-1 has come out from he r matrimonial house of her own and for that she was given Talaq by the accused a ppellant, the instant case was filed have been denied by the PW-2. 12. PW 3 Md. Indaz Ali is a near relative of PWs 1 & 2. He is also their cl ose neighbour. He stated that the accused appellant and PW 1 were married as per Muslim law. After one year of marriage the accused appellant had taken PW 1 to her parents house when she was pregnant and again took her back to his house. He further stated that PW-1 was bleeding when she was again beaten but when and ho w PW-1 was beaten this witness was completely silent. He stated that the family members had admitted PW 1 in the hospital where she stayed for about 26 days. During cross-examination PW-3 stated that Mujibur, Mokibur, Samser , Afzal etc. are neighbour of the accused appellant. Whether they knew about the beating of PW-1 by the accused appellant, he is not aware. PW 3 also was not aware about th e doctor who admitted PW-1 in the hospital and the doctor who treated her. He al so did not know when PW-1 was driven away by the accused appellant. PW 3 has spe cifically stated that PW-1 was not treated at Sipajhar Hospital. PW-3 did not sa y any thing about torture with respect to demand for dowry nor he stated anyth ing specifically about termination of pregnancy. 13. PW 4 Md.Afzal Ali has stated that the elder brother of PW 1 had called h im and Rupsed and told them about the physical assault caused by the accused app ellant upon PW 1. Thereafter she was taken to Sipajhar Hospital and on the advis e of doctors, she was shifted to Mangaldai Civil Hospital, where she stayed for 26 days. One dead child was born to PW 1 at Mangaldai Civil Hospital. Since ther eafter PW 1 is staying at her parental home. During cross-examination PW-3 stated that accused appellant had given Talaque t o PW 1. In another case instituted by PW 1 before the learned court below, PW-3 had deposed as witness. He has further stated that houses of PW 1 and the accuse d are near to each other. 14. PW 5 Md Muhibul Hoque is the elder brother of PW 1. He stated that the a ccused appellant and PW 1 were married according to Muslim rites and rituals. Af ter marriage both were living in the house of the accused appellant. He has furt her stated that the accused appellant used to beat PW 1 at the provocation of hi s sister-in-law. Sometimes the accused appellant after beating PW 1 used to driv e her out to her parental home and after consoling PW 1 they used to send her ba ck to the house of the accused appellant. However he did not say anything about the termination of pregnancy of PW 1 by the accused appellant. He has further st ated that on the last occasion PW 1 was driven out when she was pregnant and she was bleeding and he had taken her to Mangaldoi Civil Hospital on the advise of the doctor of Sipajhar Hospital. The treatment of PW 1 continued for 26 days an d one dead child was born to her at the Mangaldoi Civil Hospital, wherefrom she was taken to her parents house. PW 5 has further stated that the accused appella nt had sent talaq nama by post. During cross-examination PW 5 has stated that on the night of the incident about 10/15 persons gathered in their house. They are from the same village but not r elated to them. 15. PW 6 is the doctor Binod Ch.Kalita who was the Medical and health Office r-I at Mangaldai Civil Hospital at the relevant time. He stated that on 17.7.96 he examined PW 1 and found as follows: Gul Bahar was admitted in Mangaldoi Civil Hospital as indoor patient on 17.7.96 for mid-pregnancy with invariable abortion. Subsequently product of conception was expelled, spontaneously. She was discharged on request on 10.8.96 . Ext.2 is the Medical Certificate and Ext.2(1) is the signature of PW 6. Ext.3 is another certificate issued by PW 6 on 27.7.96. Ext.3(1) is the signatur e of PW 6. PW 6 further stated that PW 1 was admitted on 17.7.96 (i.e.after five days from the alleged date of incident on 12.7.96) at the Mangaldai Civil Hospital for mi d-pregnancy with vaginal bleeding due to placenta Prac and was advised to get t reatment in a well facilitated hospital until delivery. He stated that Ext.2 w as issued on 20.11.96 after PW 1 was discharged on 10.8.96. During cross-examination PW 6 stated that in normal course some women ma y have uterus trouble which might lead to abortion. PW 1 had abortion on natural way. PW 6 further stated that in human physiology such abortion may be caused d ue to some other factor. 16. On careful scrutiny of the evidence on record it would reveal as thus: (a) In her entire evidence PW 1 i.e. alleged victim had stated nothing about any demand of dowry by the accused appellant at any point of time during their married life, which raises a suspicion about the veracity of her deposition. PW 1 also had utterly failed to substantiate the allegations of termination of preg nancy with the accused appellant having any role in it. She admitted that foetus had automatically came out and the doctor had no role in it. (b) PW 2 who had specifically stated that she knew each and every incident a s both the complaints were lodged by her and in both her complaints this witness specifically alleged that the accused appellant used to torture PW 1 on the pr etext of dowry . But nowhere in her deposition she had stated that the accused a ppellant had demanded dowry from his wife and her family at any point of time wh en the marriage was subsisting. More so, suspicion arises about veracity of this witness on a conjoint reading of her evidence with the evidence of the doctor, PW 6 .PW 2 stated in her complaints that the date of incident was 12.7.96. She h as stated that when her sister PW 1 was driven out of her matrimonial home, PW 1 was heavily bleeding and in the next day she was taken to hospital for treatme nt. But from the evidence of the doctor PW 6 as well as from the Exts.2 and 3 , PW 1 was admitted in the hospital on 17.7.96. There are also some inconsistenci es in the deposition of PWs 2 and 5. (C) PW 5, the elder brother of PW 1 and 2 in his examination-in-chief had br ought forward a new story which is more convergent witness i.e. PWs 1&2 had not brought either in the complaints or in their evidence. PW 5 has stated that at t he provocation of his sister-in-law, sometimes the accused appellant used to dri ve PW 1 out of the house after beating and thereafter consoling PW 1, they used to send her back to her matrimonial home. On the other hand this witness has not stated anything about the allegations regarding termination of pregnancy by the accused appellant. (D) The doctor, PW 6 has stated that PW 1 was admitted on 17.7.96 (i.e.five days from the alleged date of incident i.e on 12.7.96) at the Mangaldoi Civil Ho spital for mid-pregnancy with vaginal bleeding due to ’Placenta Prac’ and was ad vised to get treatment in a well facilitated hospital until delivery. He has sta ted that PW 1 was discharged from hospital on 10.8.96 but the Ext 2 was issued o n 20.11.96. From the evidence of the doctor, it is clear that the abortion of th e child occurred in natural course and spontaneously .The doctor had opined that some women might have some uterus trouble, which might lead to abortion. 17. The learned trial court, while discussing the evidence on record, has fo und that there was no iota of material evidence that there was administration of medicine for abortion. On careful scrutiny of the evidence on record he found t hat there was no corroborative and acceptable evidence that the victim was subje cted to cruelty for realization of dowry and further observed from the facts and circumstances that the accused had no intention to cause mis-carriage. 18. Referring to the contradictory statements made by the prosecution witnes ses, Mr.Choudhury has strenuously urged that the learned trial court did not fin d the accused appellant guilty under Section 313 IPC on the ground that there wa s no corroborative and acceptable evidence that PW 1 was subjected to cruelty fo r realization of dowry. On the other hand the learned trial Court has also held that PW-2 to PW-5 are reported witnesses and the evidence of PW-6 also does not specifically indicated that the abortion was forceful one inasmuch as, there was no iota of evidence that there was administration of medicine for abortion. Mr. Choudhury therefore submitted that considering the evidence on record of PWs 2 t o 6 when the learned trial court has not found the accused appellant guilty un der Section 313 IPC, the accused appellant ought not to have been convicted unde r Section 498(A) IPC on the said set of evidence meaning thereby that the learne d trial Court has accepted the evidence of prosecution witnesses while convictin g the accused appellant under Section 498(A) IPC and discarded the evidence of s ame witnesses while acquitting him from the charge under Section 313 IPC. Mr Ch oudhury has submitted that the definition of cruelty as defined under Section 49 8-A is not attracted in the instant case for the reasons that there is no cogent evidence to bring home the said allegation inasmuch as there is no evidence of any willful conduct on the part of the accused appellant that there was administ ration of medicine and the abortion was forceful one. 19. In support of his submission Mr Choudhury has relied upon the following decisions: (i) 1992 Crl.L. J. 1017 Tapan Pal and Ors Vs. The State of W.Bengal, (ii) 1993 Crl.L.J.3019 Ravindra Pyarelal Bidlan and Ors Vs. State of Maharashtra. (iii) AIR 2002 SC 2078 Giridhar Shankar Vs.State of Maharastra At para 14 of Tapan Pal(supra) Division Bench of Calcutta High Court has held as follows: Even assuming that the alleged statements are admissible under S.32(1) of the Evidence Act, the same are insufficient to prove cruelty within the mea ning of S. 498 A.Basic facts from which cruelty is to be inferred are to be all eged and proved. It is not sufficient to say that the deceased was subjected to torture or cruelty. In the absence of specific acts of omission or commission th e court is not in a position to decide whether the conduct of the accused amount ed to cruelty within the meaning of S.498 A. So, the vague statements that the d eceased was subjected to tortures or cruelty is not sufficient to prove the char ge under S.498 A, IPC In Ravindra Pyarelal Bidlan(supra) it was held that to bring home charge under S ection 498(A) IPC, the Court is to see that it is not any and every cruelty that it is made punishable but only the cruelty as defined under the explanation. A s per explanation (a) cruelty has to be of such a gravity as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. At para 26 of Ravindra Pyaralal(supra) the Court held as thus : Sub Clause (b) of the explanation to Section 498(A) provides that cruelty mea ns 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 .Sub-Clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere hara ssment by itself is not cruelty. Mere demand for property etc. by itself is not cruelty. It is only where harassment is shown to have been committed for the pur pose of coercing a woman to meet the demands that is cruelty and this is made pu nishable under the Section. In other words, it is not every harassment or every type of cruelty that would attract Section 498(A). It must be established that t he beating or harassment was with a view to force the wife to commit suicide or to fulfill illegal demands of the husband or the in-laws. In Giridhar Shankar(supra) the Apex Court has held that in absence of cogent ev idence to bring home the charge under Section 498(A) the accused is entitled to be acquitted. 20. In the instant case from the evidence on record as well as the evidence of doctor i.e. PW-6, I found that the prosecution has failed to prove beyond rea sonable doubt that the accused had demanded dowry and that he had harassed or be aten his wife PW-1 for the purpose of