Crl.A. 242/2003 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA This appeal is directed against the judgment and order, dated 25.06.2003, passed by the learned Addl. Sessions Judge, Darrang, Mangaldai, in Sessions Case No.73 (DMFT)2002. By the impugned judgment and order aforesaid, the learned Additional Sessions Judge, convicted the appellants for the offence under Section 498(A) I PC and sentenced each of them to suffer rigorous imprisonment for two years and pay a fine of Rs.2,000/-, in default, suffer another period of rigorous imprison ment for six months. 2. Being aggrieved by the said judgment and order, the appellants h ave come up with this appeal. 3. I have heard Mr. N. Majumder, learned counsel appearing for the appellants and Mr. B.B. Gogoi, learned Addl. Public Prosecutor, appearing on beh alf of the State-respondent. 4. The prosecution case, as revealed at the trial, in brief, may be stated as follows :- Smti. Chandana Ghosh (hereinafter called ’the deceased’), who was the daughter o f Sri Khudiram Ghosh (PW.1) and Smti Kalpana Ghosh (PW.2), was given in marriage with the appellant No.1, namely, Sri Nitya Ghosh. At the time of the said marri age, it was settled that an amount of Rs.60,000/-, including some articles would have to be given to the bride-groom and accordingly the parents of the deceased had given her ornaments and some articles valued at Rs.50,000/-. The remaining amount of Rs.10,000/- was required to be paid subsequently. Accordingly, the mar riage was performed, but after the marriage, her husband and members of his fami ly used to treat her with cruelty, both mentally and physically, demanding the r emaining amount of dowry. Being unable to bear the torture, at the hands of the appellants and the members of her in-laws’ family, the deceased, on 22.03.2002, committed suicide by consuming poison. On being informed about the said incident , the parents of the deceased rushed to the marital house of the deceased and fo und her dead. Accordingly, the father of the deceased i.e. PW.1 lodged the FIR w ith the Officer-in-charge, Mangaldai police station, which was registered as Man galdai P.S. Case No.78/02, under Section 498(A)/304(B) of IPC. After receipt of the said FIR, police launched investigation into the matter, got the autopsy don e in respect of the dead body of the deceased and recorded the statement of the witnesses. 5. At the close of the investigation, police submitted chargesheet against the appellants along with Sri Madhab Ghosh and Smti Kalpana Ghosh for th e offences under Sections 498(A)/306 IPC and forwarded them to the Court to stan d trial. 6. The offence, under Section 306 IPC, being exclusively triable by the Court of Sessions, the learned Additional Sessions Judge, framed charges ag ainst the said accused persons under Sections 498(A)/306 IPC. The charge was exp lained and read over to the accused persons, to which they pleaded not guilty an d claimed to be tried. 7. In order to prove the charges, the prosecution examined as many as 8 witnesses including the Medical Officer, who performed the autopsy and the Investigating Police Officer. 8. At the close of evidence for the prosecution, the accused person s were examined under Section 313 Cr.P.C. They denied the allegations and examin ed two witnesses in support of their plea of innocence. 9. Considering the evidence on record, the learned Addl. Sessions J udge, acquitted Sri Madhab Ghosh and Smti Kalpana Ghosh, for want of sufficient evidence. The appellants were also acquitted of the charge under Section 3 06 IPC for want of evidence. However, the learned Addl. Sessions Judge, convicte d the appellants for the offence under Section 498(A) IPC and sentenced them as indicated above. 10. Mr. Chakraborty, learned counsel, appearing for the appellants, has submitted that the prosecution failed to establish its case beyond all reaso nable doubt, by adducing cogent and reliable evidence and that the learned trial Judge committed error by recording the conviction and sentence without sufficie nt evidence on record. It is also submitted that there is no substantive evidenc e to believe that the appellants treated the deceased with cruelty, either physi cally or mentally and that the prosecution failed to state the material particul ars regarding the alleged cruelty/torture. In view of the above, it is submitted , on behalf of the appellants, that the impugned judgment and order is liable to be set aside and quashed. 11. Supporting the impugned judgment and order, rendered by the lear ned trial Judge, the learned Addl. Public Prosecutor, appearing for the State-re spondent, has submitted that the prosecution could establish its case by adducin g sufficient evidence and that the learned trial Judge committed no error by con victing and sentencing the appellants as indicated above. 12. In view of the rival submissions, advanced by the learned counse l, appearing on behalf of the parties and in order to appreciate the evidence on record, I feel it appropriate to briefly, recapitulate the evidence on record a s follows :- 13. Ext.1 is the FIR lodged by the father of the deceased. The fathe r of the deceased, who deposed as PW.1, has also exhibited his signature as Ext. 1/1. In the FIR aforesaid, it was stated that, for the last one year, the accuse d persons used to torture and assault the deceased, demanding her to bring money from her parents. In the FIR, it was also stated by the said informant i.e. the father of the deceased that, on 22.03.2003, he came to know that his daughter d ied in the Guwahati Medical College Hospital. PW.1, in his FIR, further stated t hat his daughter was killed by the members of her in-laws family by forcefully a dministering poison. In the FIR aforesaid, no specific mention was made regardin g the amount of dowry claimed by the appellants. The informant simply alleged th at the members of the in-laws of the deceased used to torture her demanding her to bring money from her parents. In his evidence given as PW.1, the father of th e deceased, stated that at the time of negotiation of the marriage, he agreed to pay an amount of Rs.60,000/- to the bride-groom and, accordingly, an amount of Rs.50,000/- was paid to the husband of the deceased. He further stated that the husband of the deceased and the other members of his family used to torture the deceased due to her failure to bring the remaining amount of Rs.10,000/- from he r parents. According to the PW.1, about 8 months prior to the occurrence, the de ceased went to her parents house and informed about the ill treatment caused by her husband and other members of his family. PW.1 further stated that he brought his daughter to her marital home about 8 months ago and thereafter he came to k now that his daughter had fallen ill. Accordingly, on being so informed, he rush ed to the marital home of the deceased and came to know that she had died. This witness stated that he had no information as to whether the deceased had consume d poison herself or poison was administered to her. In his cross-examination, PW .1 stated that, at the time of giving statement under Section 161 Cr.P.C. before the police, he did not tell the police regarding payment of Rs.50,000/- and the demand regarding balance amount of Rs.10,000/-. PW.1 also stated that he had in formed Sri Mantu Saha, Sakti Saha (DW.1) and Gayanath Biswas (DW.2), about the t orture committed on his daughter. From the evidence of this witness, it is found that he made the statement, regarding the demand of Rs.60,000/- and payment of Rs.50,000/-, leavi ng a balance of Rs.10,000/-, for the first time in the Court at the time of givi ng evidence. He neither disclosed this matter at the time of lodging the FIR, no r did he make any such statement before the police. That apart, his statements t hat the bride-groom had demanded Rs.60,000/- and that he had given Rs.50,000/-, keeping a balance of Rs.10,000/-, have not been supported by the PW.5, DW.1 and DW.2, who were also present at the time of negotiating the marriage. 14. Smti Kalpana Ghosh, the mother of the deceased, who deposed as P W.2, stated that, on being demanded by the bride-groom of her deceased daughter, they had paid dowry keeping a balance of Rs.10,000/- and due to failure to pay the said remaining amount of Rs.10,000/-, the appellants used to torture her dau ghter. She further stated that the deceased was once assaulted by the appellants in presence of her brother-in-law i.e. the husband of her elder sister and that once, the appellant No.2 i.e. Sri Sanjib Ghosh had grabbed her in the bed with ill intention. In her cross-examination, PW.2 denied the suggestion that she did not tell the police at the time of recording her statement under Section 161 Cr .P.C. regarding the demand of Rs.10,000/- by the appellants. Though PW.2 stated regarding the assault caused to the deceased by the appellants, PW.1 i.e. the hu sband of PW.2 did not whisper anything in this regard. In view of the above, I f ind no corroboration in the evidence of PW.2 to believe her statement regarding the said physical assault. Even the prosecution did not examine the said brother -in-law of the deceased, in whose presence, the deceased was alleged to have bee n assaulted. 15. Sri Ranendra Ghosh, who deposed as PW.3, stated that his daughte r and the deceased used to study together in the School and that he was present at the time of negotiation of the marriage. Supporting the evidence of PWs. 1 an d 2, PW.3 stated that at the time of negotiation of the marriage, the appellants had demanded Rs.60,000/- and, accordingly, the amount was paid keeping a balanc e of Rs.10,000/-. He further stated that due to failure, on the part of the pare nts of the deceased to pay the said remaining amount, the appellants used to tor ture the deceased. 16. Carefully perusing the evidence of PW.3, it is found that, he ha d no personal knowledge about the alleged torture and ill treatment meted out to the deceased. He came to know from his daughter, to whom the deceased had discl osed about the ill treatment meted out to her. The said daughter of PW.3 has not been examined in this case. In view of the above, the evidence of PW.3, being h earsay evidence, lacks sufficient force to inspire confidence. The evidence of P Ws. 1, 2 and 3, regarding the demand of Rs.60,000/- made by the appellants and p yment of the said amount keeping a balance of Rs.10,000/- stood belied by the ev idence of PW.5, who was also present at the time of the negotiation of the said marriage between the deceased and the appellant No.1 i.e. Sri Nitya Ghosh. 17. Sri Nagendra Ghosh, who deposed as PW.5, in his evidence, clearl y stated that at the time of negotiation of the marriage between the said couple , he was present along with Sri Saktipada Saha (DW.1) and others. He stated that at the time of settlement of the marriage, the parents of the deceased expresse d their inability to make any payment and that the bride-groom party also did no t demand anything from the parents of the deceased. In his cross-examination, th is witness stated that the bride-groom agreed to bear the entire expense of the marriage and that he did not demand any dowry from the parents of the deceased. 18. The evidence of PW.5 has been duly corroborated and supported by Sri Saktipada Saha (DW.1), who was present at the time of negotiation of the ma rriage. 19. DW.1, Sri Saktipada Saha denied the suggestion put to him by the prosecution that the bride-groom had demanded Rs.60,000/- from the parents of t he deceased. This witness stated that, at the time of settling the marriage betw een the deceased and the appellant No.1, the appellants made no demand regarding any dowry or any other articles. 20. Sri Gayanath Biswas, who was also present at the time of negotia tion of the said marriage, deposed as DW.2. In tune with the evidence of PW.5 an d DW.1, this witness stated that no dowry demand was made by the appellants at t he time of the marriage. According to DWs. 1 and 2, they used to visit the marit al house of the deceased and at no point of time, either the deceased or the par ents of the deceased had made any complaint to them regarding ill treatment mete d out to the deceased by the appellants. 21. Carefully scrutinizing the evidence of PWs. 1, 2, 3 on the one h and and the evidence of PW.5, DW.1 and DW.2 on the other hand, it is found that PW.5, DW.1 and DW.2 contradicted the evidence of the PWs. 1, 2 and 3, regarding the allegation of dowry demand and torture. The failure of the informant i.e. PW .1 failed to make any disclosure regarding such dowry demand and material partic ulars regarding ill treatment in the FIR, lodged by him, raises doubt about the veracity of the prosecution version. That apart, from the evidence of PWs. 1, 2 and 3, it is found that they did not make such disclosure at the initial stage i .e. at the time of making statement before the police. It transpires that the sa id three witnesses, for the first time, made statements regarding dowry demand i n the Court. Therefore, possibility of improving the prosecution story can’t be ruled out. This suspicion has been fortified by the contradictory evidence given by the PW.5, DW.1 and DW.2. 22. In the light of the above discussions, it is quite doubtful as t o whether the appellants had demanded any money from the parents of the deceased . 23. PWs. 1 and 2 i.e. the parents of the deceased, stated that their daughter, during her visit to their house, had informed that she was ill treate d and tortured by her husband and the members of his family, demanding her to br ing the remaining amount of dowry i.e. Rs.10,000/- from her parents. Except usin g the word ’torture’ or ’ill treatment’, the said witnesses failed to specifical ly state the material particulars i.e. the nature, gravity and manner of ill tre atment caused to the deceased. They made vague statement alleging torture. 24. In order to hold a person guilty of committing the offence under Section 498(A) IPC, the prosecution is required to establish that the woman was treated with cruelty by her husband or members of his family. The term ’cruelty ’ has been explained under Section 498(A) of IPC, which reads as follows:- S.498-A. Whoever, being the husband or the relative of the husband of a w oman, subjects such woman to cruelty shall be punished with imprisonment for a t erm which may extend to three years and shall also be liable to fine. Explanation- For the purposes of this section, ’cruelty’ means- (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 is on account of failure by her or any person related to her to meet such demand. 25. Carefully considering the evidence of PWs. 1 and 2, I find no su fficient materials to believe that the deceased was treated by the appellants in such a manner, which was sufficient to drive her to commit suicide or to cause injury or danger to her life or limb or health. That apart, from the evidence of PW.1, it is found that about eight months ago, the deceased had visited his hou se and narrated the story of torture etc. and thereafter she left to her marital home, and she remained there till her death. There is no evidence on record to show that the deceased was ill treated or tortured during the said intervening p eriod of eight months. Therefore, considering the proximity of the time and the nature of allegation made by the prosecution witnesses, more particularly the PW s. 1 and 2, it cannot be safely concluded that the alleged torture, if any, was the cause of death of the deceased. From the evidence on record, it appears that the deceased had expressed that there was age difference between her husband an d herself and that she was not happy with the marriage life. Therefore, committi ng suicide by the deceased due to frustration or depreciation cannot be ruled ou t. 26. It is settled law that in a criminal case, prosecution is requir ed to prove the charge brought against the accused beyond all reasonable doubt a nd in the event of existence of two inferences i.e. one going in favour of the a ccused and other going in favour of the prosecution, the benefit should always b e given to the accused person. 27. In view of the above discussions, it has been found that the pro secution failed to establish the charge brought against the accused persons beyo nd all reasonable doubt. Therefore, the accused persons are entitled to get the benefit of doubt. 28. Considering the entire evidence on record and in view of the abo ve discussion, I find sufficient merit in this appeal, requiring interference wi th the impugned judgment and order. Accordingly, the appeal is allowed. The impu gned judgment and order of conviction and sentence passed against the appellants are set aside and quashed. The appellants are acquitted and set at liberty fort hwith. Their bail bonds stand discharged. Return the Case Diary.