Crl.A. 39/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the convict is directed against the judgment of conviction dated 16.12.2002 passed by the learned Adhoc Additional Sessions Judge, Sankardev Naga r, Hojai, in Sessions Case No.157(N)/2001, convicting the appellant under Sectio n 498A IPC and sentencing him to undergo rigorous imprisonment for 2(two) years and also to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonmen t for another term of 3(three) months. 2. The prosecution story in brief is that the appellant Siben Debnath marri ed Smt. Chayarani Debnath 2(two) years prior to the date of occurrence and after few month of their marriage, as the appellant developed the extramarital relati onship with another woman at Borpathar, where he was working as tailor, he subje cted to his wife Chayarani both mental and physical torture because of the resis tance given by his wife and opposition to such extramarital relationship. It is also the prosecution story that Chayarani having failed to bear the torture comm itted suicide on 21.07.2000. 3. The investigating agency on completion of the investigation filed the ch arge-sheet under Section 306 IPC against the present appellant. The case being e xclusively triable by the Court of Sessions, was committed to the Court of Sessi ons by the learned Magistrate on 19.07.2001. The learned Sessions Judge thereaft er framed charge. Though initially charge under Section 306 IPC was framed, but subsequently charge under Section 498A IPC was also framed, which were read over and explained to the appellant, to which he pleaded not guilty. Hence the trial commenced. 4. The prosecution in order to bring home the charges under Section 306 and 498A IPC framed against the accused appellant examined 9(nine) witnesses, namel y, PW-1 Sri Nibas Debnath, the elder brother of the deceased; PW-2 Sri Subhas De bnath, younger brother of the deceased; PW-3 Sri Swapan Debnath, cousin brother of the deceased; PW-4 Smt. Bina Debnath, sister of the deceased; PW-5 Sri Nagend ra Debnath, a neighbour of Nibas Debnath; PW-6 Sri Kamla Kanta Deka, the investi gating officer, who submitted charge-sheet; PW-7 Sri Anantaram Baisya, Senior Sc ientific Officer, Forensic Science Laboratory, Guwahati, who examined the viscer a of the deceased; PW-8 Sri Phanibhusan Dhar, another investigating officer, who investigated the alleged offence up to the stage of receipt of the FSL report a nd PW-9 Dr. Jawahar Prasad Hazarika, who conducted the post mortem examination. The witnesses were duly cross-examined by the accused. No defence witness, howev er, was examined by the accused appellant. The accused examined under Section 31 3 Cr.P.C. 5. The learned Adhoc Additional Sessions Judge upon appreciation of the evi dences on record while acquitting the appellant from the charge framed under Sec tion 306 IPC, convicted him under Section 498A IPC and sentenced him to undergo rigorous imprisonment for 2(two) years and to pay a find of Rs.1,000/-, in defau lt to undergo rigorous imprisonment for another period of 3(three) months. Hence the appeal. 6. I have heard Mr. Pradhan, learned counsel for the appellant and Mr. K. M unir, learned Public Prosecutor, Assam. 7. It is the contention of the learned counsel for the appellant that PWs-1 to 4 being related witnesses, much credential should not be given to their test imony. It has also been submitted that those witnesses apart from PW-5, who is a neighbour of PW-1, did not say anything about subjecting Chayarani to mental an d physical torture, so as to constitute cruelty within the meaning of Section 49 8A IPC. The learned counsel submits that those witnesses have not stated that th e appellant had subjected his wife to cruelty or any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause gra ve injury or danger to life, limb or health of his wife and as such the judgment of conviction of the appellant under Section 498A IPC cannot be sustained. 8. The learned Public Prosecutor, on the other hand, referring to the depos itions of PWs-1 to 5, more particularly PW-5, who is an independent witness, has submitted that those witnesses have in clear terms depose about subjecting the wife to mental and physical torture of such a nature as is likely to drive the w oman to commit suicide or to cause grave injury or danger to life, limb or healt h of the woman and as such the learned Court below has rightly convicted the app ellant under Section 498A IPC. The learned Public Prosecutor further submits tha t though PWs-1 to 5 have stated about subjecting the wife to cruelty within the meaning of Section 498A IPC, there is no cross-examination by the appellant in t hat regard. 9. I have considered the submissions of the learned counsel for the parties and also perused the evidences on record. 10. PWs-1 to 4, who are related witnesses, their testimony cannot be disrega rded completely on that ground alone, when there are other corroborative evidenc e on record. Those witnesses have categorically stated about mental and physical torture meted out by the appellant to his wife. The testimony of PWs-1 to 4, is also corroborated by the independent witness PW-5, who also depose regarding su bjecting the wife to cruelty. PW-5 in examination-in-chief in specific terms has stated about mental and physical torture of the wife by the appellant. Those wi tnesses more particularly the PW-5 have not been cross-examined by the appellant about the deposition relating to the mental and physical torture. 11. Explanation of Section 498A IPC defines the cruelty as:- (a) any willful 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 heal th (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 o r valuable security or is on account of failure by her or any person related to her to meet such demand. 12. The husband or relative of a husband of a woman, who has been subjected to cruelty within the meaning of Section 498A, can be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. In the instant case, as discussed above, there are uncontroverted evidence of subj ecting the wife to mental and physical torture of such a nature as is likely to drive the woman to commit suicide. As noticed above, such positive assertion of PWs-1 to 5 has not been disputed by the appellant. There was no cross-examinatio n of those witnesses on such allegation. 13. That being the position, the judgment of conviction recorded by the lear ned Adhoc Additional Sessions Judge under Section 498A IPC does not require any interference. However, keeping in view the facts and circumstances involved in t he case, the sentence of imprisonment is reduced to the period already undergone . The fine imposed, however, is not interfered with in default of payment of the same the appellant shall undergo further imprisonment for a period of 3(three) months. 14. The appeal is accordingly partly allowed.