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2009 DIGILAW 515 (GAU)

Nikunja Chanda v. State of Assam

2009-07-31

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. S.C. Biswas, Learned Counsel for the accused-appellants and also heard Mr. D. Das, learned Additional P.P., Assam. 2. This appeal is directed against the judgment and order dated 30.11.2002 passed by the learned Sessions Judge, Sonitpur at Tezpur in Sessions Case No. 80/2001 convicting the accused-appellants under Section 498A/304B, IPC and sentencing him to undergo rigorous imprisonment for 2 (two) years, each, and also to pay fine of Rs. 200 (rupees two hundred) only each, in default, further to undergo rigorous imprisonment for another 1 (one) month each. 3. The prosecution story is based on a written FIR lodged on 13.1.2001 by one Sri Naresh Ch. Das with the Officer-in-Charge, Thelamara Police Station alleging that 10(ten) years ago his younger sister Munmun @ Rina Chanda was given in marriage to one Sri Niranjan Chanda and out of the said wedlock, two children were born to them but the in-laws, i.e., father-in-law, mother-in-law and sister-in-law of Munmun, started torturing her both physically and mentally. Before 11/2 month of lodging the said FIR informant's sister Munmun gave birth to a female child. It is alleged in the FIR that in the night of 11.1.2001 the informant's sister Munmun died due to torture on her by her in-laws and also due to want of treatment. A crime was registered under Sections 498A/304B, IPC and the police started investigation and arrested Sri Niranjan Chanda @ Ranjan Chanda; Smt. Sabitri Chanda @ Maya Rani Chanda; Smt. Sabita Chanda and Nikunja Chanda. After completion of the investigation, police submitted charge sheet under Sections 498A/304B/34, IPC against the accused, namely Sri Nikunja Chanda, Smt. Sabitri Chanda and Smt. Sabita Chanda. After committal at the case, the learned Sessions Judge, Sonitpur framed charge under Sections 498A/304B/34, IPC against the above named accused persons. The charge having been read over and explained, the accused persons pleaded not guilty and claimed to be tried. 4. The prosecution examined as many as 9 (nine) witnesses including the Investigating Officer and the Medical Officer while the defence examined none. The PWs 1, 2 and 3 are the co-villagers'. There is nothing from the evidence of the aforesaid witnesses that the deceased was tortured by the accused persons, who are her in-laws.; PW8 is the cousin brother of the husband of the deceased, who was declared hostile. The PWs 1, 2 and 3 are the co-villagers'. There is nothing from the evidence of the aforesaid witnesses that the deceased was tortured by the accused persons, who are her in-laws.; PW8 is the cousin brother of the husband of the deceased, who was declared hostile. This witness is son of Kumud Chanda, who is the brother of accused Nikunja's father, Binod Chanda. He was cross-examined by the Public Prosecutor. In his cross-examination, he admitted that before the police he made a statement to the effect that because of financial difficulties Sri Niranjan and his wife Munmun sold some ornaments to him and the said couple stayed in his two vacant rooms for few months and after that, they left his house and thereafter, stayed at Ali Singa under Dhekiajuli police station. After staying somewhere they ultimately returned to their house. According to this witness, the deceased Munmun and Niranjan had two children and Niranjan used to stay in Punjab and Munmun @ Rina used to stay at her matrimonial house alongwith her in-laws, i.e., the accused persons. The other important witness is PW6, Smt. Ila Rani Das, wife of Naresh Ch. Das, PW5. According to her, the marriage took place about 12 (twelve) years ago and after the marriage deceased Munmun was taken to her in-laws house. According to her, there was no complaint as to their conjugal life but after about 1(one) year and after she gave birth to a female child, she was ill treated and tortured by her in-law as their demand for extra dowry could not be met. Deceased Munmun had to stay for 2(two) months in her paternal house, she told the family members about the physical and mental torture inflicted on her. After 2 (two) months, Niranjan came and took her back home, but according to this witness, the in-laws did not take proper care during her pregnancy and delivery of the child. This witness deposed that when she visited the deceased/she found her unwell and sleeping on the ground in a sick condition. On being asked, according to this witness, the accused persons told her that they have taken care of Munmun by giving treatment from one pharmacy. At that time, the deceased even could not talk and, therefore, this witness alongwith other family members, admitted her in the Railway Hospital at Rangapara and she recovered from her ailments. On being asked, according to this witness, the accused persons told her that they have taken care of Munmun by giving treatment from one pharmacy. At that time, the deceased even could not talk and, therefore, this witness alongwith other family members, admitted her in the Railway Hospital at Rangapara and she recovered from her ailments. On her enquiry about the gold ornaments, the deceased told this witness that her in-laws had taken them away from her. According to this witness, the victim stayed for about 6 (six) months in her parental house and one day her husband Niranjan came from Punjab. He assured the family members of the deceased that no such ill treatment would be given to Munmun and on such assurance, Munmun was allowed to go with her husband but she had to come back to her paternal house due to the ill treatment from the in-laws'. She was again taken back by her in-laws. There was a communication gap for quite some time till the information was received about the death of Munmun. There was an arrangement for cremation of the deceased before arrival of the members of the family of the deceased and only when it was protested by the husband of this witness and on intervention of the police, the dead body of the deceased was kept on 'emaciated' condition in the house of the accused persons. This witness while looking at the dead body of the deceased, found that it was just a skeleton with 'emaciated' body with scar marks all over the body and some teeth were found broken and eyes gone deep. 5. PW5, Sri Naresh Ch. Das, elder brother of the deceased and PW7, Smt. Gayatri Maitra, wife of Sri Subudh Maitra (elder sister of the deceased) corroborated the evidence of PW6. PW7 categorically deposed that at the time of marriage, cash amount of Rs. 5,000 (rupees five thousand), a good number of ornaments and other household belongings, furniture etc. were given as a token of love to Munmun and all these tokens were taken away by her husband Niranjan after the marriage. She further deposed that after some time of the marriage, accused persons started making further dowry demand. Niranjan, the husband of the deceased, used to visit her house once in a year only and he did not send money for maintenance of his family. She further deposed that after some time of the marriage, accused persons started making further dowry demand. Niranjan, the husband of the deceased, used to visit her house once in a year only and he did not send money for maintenance of his family. It is categorically stated by this witness that accused persons started torturing Munmun @ Rina Chanda, the deceased. 6. Dr. Rana Mukur Keot was examined as PW4. He conducted post mortem. In his opinion, the deceased died due to chronic malnutrition accentuated by the recent pregnancy and delivery. In cross-examination, he stated that malnutrition could be caused for various reasons like chronic disease such as Discentry, TB, Sarcodosis etc. (systematic diseases). 7. From the evidence of the prosecution witnesses, it has become clear that the husband of the deceased used to stay away in Punjab and rarely used to come home. He also does not send money for maintenance of his family members. From the evidence; it does not appear that the husband of the deceased used to take her to his work place in Punjab and she was left at home uncured. There is positive evidence from PW8, who was declared hostile, that he purchased the ornaments of the deceased as she came alongwith her husband, due to financial difficulties. 8. The evidence is clear enough that she gave birth to three children. The first child died. As per the evidence of PW7, during delivery of third child, she was kept in the bamboo groves, which is unthinkable. All these happened in absence of her husband and the accused in-laws are responsible for such ill-treatment. Against such evidence, the defence did not adduce any evidence. 9. The term "cruelty" under Section 498A IPC, has been explained as follows: (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 to danger to life, limb or health (whether mental or physical), of the women. It is sufficiently clear from the evidence that the husband of the deceased was not sending money for her maintenance and obviously she was not in a position to have sufficient food and that may be the reason why she was suffering from malnutrition affecting her health. It is sufficiently clear from the evidence that the husband of the deceased was not sending money for her maintenance and obviously she was not in a position to have sufficient food and that may be the reason why she was suffering from malnutrition affecting her health. Over and above this, she was subjected to ill-treatment from her in-laws, which comes under the mischief of "cruelty" under Section 498A IPC. It may be appropriate to quote few lines from paragraph 17 of Onkar Nath Mishra v. State (NCT of Delhi) (2008) 2 SCC 561 as under - ...Therefore, the consequences of 'cruelty' which are either likely to drive a woman to commit suicide or to cause grave injury, danger to life, limb or health, whether mental or physical of a woman or the harassment of a woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand is required to be established in order to bring home an offence under Section 498A, IPC. 10. In the said judgment, the Apex Court observed that Section 498A IPC was introduced with an avowed object to combat the menace of harassment to a woman at the hands of her husband and/or his relatives but at the same time, the said provision should not be used as a device to achieve oblique motives. On the face of the proved case of negligence of the husband of the deceased and the torture inflicted by the relatives of her husband, there would-be no scope for importing oblique motive in the present case. It is beyond comprehension, how the prosecution failed to implicate the husband whose negligence of his deceased wife is the root cause for suffering torture at the hands of the accused-appellants. 11. In view of the aforesaid facts and circumstances and the evidence on record against the accused-appellants, I do not find any ground for taking a different view from the ones taken by the learned trial court and accordingly, the conviction recorded by the learned trial court is upheld. However, taking into the entire facts and circumstances and the antecedents of the accused-appellants, I would reduce the sentence to the period already undergone by the appellants with direction to pay a fine of Rs. However, taking into the entire facts and circumstances and the antecedents of the accused-appellants, I would reduce the sentence to the period already undergone by the appellants with direction to pay a fine of Rs. 40,000 (rupees forty thousand) only to be paid by the accused-appellants, which would be deposited under a fixed deposit scheme in the name of the surviving 2 (two) children (twenty thousand each) in a local nationalized bank for a period of 5 (five) years or till they attain the age of majority which ever is latter. The aforesaid fine amount shall be deposited within a period from 2 (two) months from today and after deposit of the same, the same may be brought to the notice of the learned trial court. Be it made clear that if the appellants fail to deposit the said amount as directed, they shall have to undergo simple imprisonment of 6 (six) months. 12. The appeal stands partly allowed with the above modification. 13. Send down the LCR forthwith.