JUMOR ALI and 2 ORS, vs THE STATE OF ASSAM

Heard Mr. N Ahmed, learned counsel for the petitioner and Mr. BB Gogoi, learned Addl. PP, Assam.

This appeal is directed against the judgment and order dated 13.11.2009 passed by the learned Addl. Sessions Judge (FTC), Barpeta in

Sessions Case No.92/2006. By the said judgment, learned Addl. Sessions Judge convicted the appellant under Section 306 IPC read with

Section 34 IPC and sentenced to RI for 5 (five) years and fine of Rs.1,000/- in default to further SI for 3 (three) months.

As per the prosecution case, the victim Maleka Khatun was married to the accused/appellant Jumor Ali. On 28.06.2004 the uncle of the victim

came to know that Maleka was seriously ill and accordingly, he along with his elder brother and other villagers went to the house of the appellants

and found the victim dead. On query, the appellants could not give any proper explanation as to the cause of death of the victim. Suspecting that

the victim might have succumbed to the injuries sustained due to physical assault, an FIR was lodged by PW-1, on the basis of which the police

registered a case and after usual investigation submitted charge-sheet against the husband of the victim and his brother.

In the course of trial, the mother of the accused was arrayed as an accused. Charge was framed under Section 306 IPC read with Section 34

IPC against all the three appellants to which they pleaded not guilty. Prosecution examined 9 (nine) witnesses to establish the charge. On

appreciation of evidence, learned trial Court having held the appellants guilty of committing offence under Section 306 IPC convicted them and

awarded sentence as indicated above.

Being aggrieved, the appellants have preferred the instant appeal.

Learned counsel for the appellant strenuously arguing for acquittal of the appellants submits that there was absolutely no incriminating evidence

on record against the appellants and learned trial Court convicted the accused/appellant only drawing a presumption under Section 113-A of the

Evidence Act, which was not permissible in the instant case as the necessary pre-conditions for drawing a presumption under Section 113-A was

totally absent.

It appears from the impugned judgment, that learned trial Court also recorded a categorical finding that there was no direct evidence regarding

abatement by the appellants. However, learned trial Court took presumption under Section 113-A IPC and convicted the appellants. Section 113-

A of the Evidence Act reads as under:

113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been

abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date

of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the

other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation : For the purpose of this section ""cruelty"" shall have the same meaning as in Section 498-A of the IPC.

A bare perusal of the provisions of Section 113-A of the Evidence Act makes it amply clear, that in order to draw a presumption under Section

113-A following pre-conditions are necessary:

The victim committed suicide within a period 7 years of marriage .

Her husband or relative of her husband subjected her to cruelty.

The cruelty meted out to the victim must be as defined in the explanation to Section 498-A IPC.

PW-6, the doctor who conducted post-mortem examination found as follows: External App: Partially decomposed female rigor mortis tongue

protruded. Mouth open, eyes open, body shows blisters.

Detailed injury: Partially decomposed body without rigor mortis with mouth open tongue protrude. No any mark of injury or ligature mark. Organs

sent for histopathological and chemical examinations:

(i) liver, (ii) Stomach and its contents, (iii) Kidney (Rt).

The doctor was of the opinion that cause of death could not be ascertained and therefore, he preserved the vicara for chemical examination.

PW-5, the in-charge Director of the Forensic Science Laboratory stated that chemical examination of the organs, gave positive tests for

oregano phosphoros pesticide. Thus the evidence of Pw-5 and the FSL expert clearly suggested that the victim consumed pesticide.

PW-1, PW-2 and PW-4 in their evidence stated that they have seen scar on the nose of the victim but the doctor who conducted the post-

mortem examination stated, that no sign of injury was found on the body of the victim. Apparently, there was no evidence even to remotely suggest

that pesticide was administered to the victim by any of the appellants. It is also evident that the victim committed suicide within 7 (seven) months of

her marriage. Thus, the evidence of Pw-1, PW-2, PW-4, PW-5 and PW-6 clearly established that the victim committed suicide by consuming

pesticides within the period of 7 (seven) months of her marriage. Thus the first and second condition for drawing a presumption under Section

113-A is found present in the instant case.

PW-3, PW-7 and PW-8 have stated nothing as to the cause of death. According to PW-1, the victim told him that after marriage she was

punished by her mother-in-law. But he did not make such statement either in the FIR lodged by him or in his previous statement recorded under

Section 161 Cr.P.C. and for the first time in Court he stated that he was told by the victim that the victim was punished by her mother-in-law.

PW-2 brother of the victim stated in his evidence that the husband and mother-inlaw did not like the victim and they also assaulted her.

According to him when the victim came to the parental home she told him about such torture. He further stated that the accused demanded money

which they could not give. There was absolutely no whisper in the evidence that the victim was tortured for demand of any property. According to

PW-2, 7 (seven) days before marriage, the victim came to their house. However, this witness also did not state anything regarding husband and

mother-in-law assaulting the victim or demand of money in his previous statement.

PW-4 the mother of the victim stated that after marriage, the accused tortured the victim and did not provide adequate food and cloths.

According to her, she met the victim for the last time, 5 (five) months before her death. So this statement of PW-4 that she did not met the victim

within 5 (five) months before her death belies the statement of PW-2 that before 7 (seven) days of the death she visited her paternal home. All the

three vital witnesses being PW-1, PW-2 and PW-4 who are close relations of the victim made absolutely vague and omnibus statement for the first

time in Court that victim was tortured.

Evidently the occurrence took place within 7 (seven) months of marriage. From the evidence of PW-4, it was clear that the victim did not visit

her paternal home atleast for five months prior to her death. None of the PW-1, PW-2 or PW-4 stated anything specifically as to the nature of

cruelty except making omnibus and vague statement that victim was tortured or she was punished. Though PW-2 stated that victim visited her

paternal home before seven day of death or informed about the torture, such testimony of the PW-2 was belied by PW-4, mother of the victim.

The explanation given in Section 113-A provides that the term ""cruelty"" for purpose of Section 113-A shall have the same meaning as in

Section 498-A IPC. Therefore, in order to draw a presumption under Section 113-A of the evidence Act, the cruelty meted out to the victim must

be as defined in Section 498-A IPC. Since the provision of law has provided a special meaning to the expression ''cruelty'' it has to be construed

within the said definition and not otherwise. In the present case, only omnibus and vague statement were made by PW-1, PW-2 and PW-4 for the

first time in Court that victim was tortured by the accused. The PW-4 even did not mention as to who out of the three appellants tortured her.

According to PW-1 only mother-in-law punished the victim whereas according to PW-2, the husband and motherin- law assaulted the victim. In

order to constitute ''cruelty'' within the meaning given by the explanation to Section 498-A IPC, the prosecution needs to prove that the degree or

intensity of willful conduct on the part of the accused persons is of such nature as is likely to drive the victim to commit suicide or to cause self

harm. Mere vague and omnibus statement that victim was punished or tortured for the first time in Court, that too self contradictory and unworthy

of attaching any credibility can by no stretch of imagination be called cruelty within the meaning of Section 498-A IPC.

In order to establish a charge against the accused, the prosecution needs to prove each and every ingredient of the offence beyond all

reasonable doubt. In the instant case, though the factum of the victim having suicide committed within 7 (seven) years of marriage had been

proved, the third ingredient that she was subjected to cruelty by the appellants has not been established in the instant case beyond all reasonable

doubt. All the pre-conditions necessary for drawing presumption under Section 113-A having been absent, no presumption could be drawn for

recording conviction of the accused/appellants. When there was no evidence that appellants abetted the victim to commit suicide and presumption

under section 113-A was also not possible for want of necessary pre-condition, the conviction and sentence of the accused/appellant cannot be

maintained. Accordingly, the impugned judgment of conviction and sentence is set-aside.

The bail bond, if any, stands discharged and the appeal stands allowed.

Send back the LCR.