Cruelty To Wife For Dark Complexion Attracts Section 498A IPC : Calcutta HC [Read Judgment]

The Calcutta High Court has held that causing cruelty to a wife for dark complexion by her husband and in-laws will attract the offence of cruelty under Section 498A of the Indian Penal Code (IPC).

"Causing cruelty to the deceased victim for her black complexion even after her marriage by the in-laws would definitely attract Section 498A/34 I.P.C. against the in-laws, including the accused husband", said the Court while sustaining the conviction of a man for the murder of his wife.

A Division Bench comprising Justices Sahidullah Munshi and Subhasis Dasgupta was hearing an appeal against the conviction of the husband and his family members, for causing death of the victim by hanging about 7 months after the marriage.

"The cause of inflicting torture was the black complexion of deceased victim, which lead the in-law's members of victim including her accused husband to cause physical cruelty upon her", the bench said while maintaining his conviction and sentence under Section 498A/302/34 of the Indian Penal Code in the case Mazidul Miah @ Mia & Others vs State of West Bengal.

Though the court acquitted the mother-in-law of the deceased of murder charges, her conviction for domestic cruelty under Section 498A IPC was sustained.

"The established fact is that there was an unnatural death of deceased held within seven months of her marriage. Such unnatural death was admittedly held in the in-law's house of deceased victim. There was sufficient evidence to show that the victim received oppression, illtreatment, torture, cruelty in her in-law's house by her in-law's members for her black complexion. Victim was further threatened to be driven out from her matrimonial home for giving second marriage of her husband", the Court noted.

'It is ordinary conduct that parents would prefer to persuade daughter to ignore torture, cruelty for future's sake'

"At the very threshold of this case, this may be mentioned that the instant case is not based on dowry demand. The death of the deceased, as set up by prosecution during trial, was the dissatisfaction of accused persons expressed with regard to black complexion of the deceased victim in a case where marriage was admittedly a negotiable one", noted the bench.

The High Court judgment records that the victim, a 20-year old girl, was given in marriage to accused/appellant no. 1 on 16.10.1997, according to Mohammedan rites and customs, satisfying the demands of his family for cash of Rs.11,000/- (Rupees Eleven Thousand), silver ornaments of three descriptions along with one Hero cycle and other valuables.

After moving to her matrimonial house, the deceased victim suffered cruelty, oppression and ill-treatment at the hands of her in-laws, including her accused husband for her black complexion. She was not loved by the in-laws, and frequently abused with the threat that the accused husband would enter into a second marriage,shortly after repealing her marriage and driving her out of the matrimonial home.

Just three days after her marriage, she was made to stay in a cow shed, The accused husband beat her physically with a cycle chain.

"Though argument was raised that prosecution case could not be believed on the ground that even after knowing the commission of cruelty upon the victim, and cause of cruelty, the parents of victim never reported the same to police station or to panchyaat body, and the neighbouring people living around in-law's house of deceased victim, but this cannot be invariable rule that parent would immediately lodge a complaint immediately after knowing commission of cruelty upon their daughter, ignoring possibility of reconciliation mutually. It is ordinary conduct that parents would prefer to persuade their daughter ignoring the torture, and the cruelty for the future benefit of their daughter", said the Court.

It proceeded to observe, "This is a case where PW-1/father of victim owns 15-16 kathas of agricultural land for his livelihood. Naturally, the father was left with best option to persuade his daughter for rejoining her in-law's house, foregoing the torture, ill-treatment, cruelty for future prospect, and this was rightly done by father/PW-1 by persuading his daughter, so that she could be made to return to her in-law's house for leading a peaceful conjugal life with husband".

'Non-production of weapon in murder trial will not lead to the rejection of testimony of Autopsy Surgeon of homicidal death'

The bench noted that in the instant case, the deceased victim being the second daughter of the de-facto complainant suffered her death by hanging in her in-laws' house. The south facing room situated to the north of the house was ordinarily shared by the deceased and her accused husband, after they got married.

"We should not be forgetful to take note of evidence adduced in the testimony of PW-7 (Autopsy Surgeon) that the seized chord was shown to Autopsy Surgeon by the escorting police producing the dead body for holding post-mortem examination. Such part of the evidence of Autopsy Surgeon remained undisturbed even in cross-examination of Autopsy Surgeon", said the bench.

The court acknowledged that the in-laws' house being situated at a distance of 6-7 miles away from the paternal house, it was quite impossible for the de-facto complainant's family members to be physically present at the time of commission of cruelty upon the victim- "Prosecution is thus in an extremely difficult situation to adduce foundational evidence in respect of facts, which are known exclusively to the knowledge of the in-law's members, as to how the deceased victim suffered her death in her in-law's house"

Taking recourse to Section 106 of Evidence Act, the bench opined that as the injured victim suffered death in her dwelling home, where the victim and her husband ordinarily resided, in view of section 106 providing inter alia that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him- "when the victim was put to suffer her death by hanging in a room situated to the north of in-law's house of deceased victim, ordinarily and commonly shared by deceased herself and her accused husband together after they got themselves married. That being the present situation, the accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of the accused husband".

"The denial of prosecution case by accused husband coupled with absence of explanation, in our considered view, appears to be inconsistent with the innocence of accused, but consistent with hypothesis of guilt of accused husband. More so, since deceased was put to suffer her death in her matrimonial home in the manner as disclosed by Autopsy Surgeon, in the absence of any cogent evidence in the cross- examination of witnesses that there was a fair possibility of an outsider committing the offence, the plea of denial with false implication is inconsequential. It was for the husband alone to explain the grounds for the unnatural death of his wife", concluded the court.

The bench reflected that the deceased victim thus having suffered unnatural death in a room of her in-laws' house, ordinarily shared together with her husband, the husband would necessarily under his obligation to give an explanation for the cause of her death, either by furnishing statement under Section 313 Cr.P.C. or by adducing evidence independently after entering into defence under Section 233 Cr.P.C.

"True it is that there was no explanation for the non-production of offending weapon in court, and there was no explanation offered to that effect by the prosecuting agency, but at any rate the offending weapon cannot be said to have been lost for want of explanation being offered. Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon", stated the bench.

It proceeded to assert that "When the homicidal death of the deceased held in her matrimonial home caused with use of chord, as already seized and produced before the Autopsy Surgeon at the time of post-mortem examination, remained unchallenged in the cross-examination of witnesses, particularly, the Autopsy Surgeon, mere non production of offending weapon in the court, and mere non-showing of the same to Autopsy Surgeon at the time of his deposition in court would be inconsequential , and in no manner it would weaken the prosecution case".

The Court held that he facts and circumstances unerringly pointed to the guilt of the accused husband/appellant for causing homicidal death of the deceased/wife by strangulation on account of the motive originating from his non-satisfaction over her black complexion.

'Person committing homicidal death would ordinarily leave the place of occurrence anticipating the consequence': Mother-in-law acquitted for offence under sections 302/34 IPC

"The post conduct of the mother-in-law revealed from the testimony of PW-5 and 6, who found mother-in-law crying taking the dead body of deceased victim, according to appellant, would not necessarily leave materials against her for commission of a homicidal death, though it might be suggestive of suicidal death", inferred the bench.

The Court expressed the view that the person committing homicidal death would ordinarily leave the place of occurrence anticipating the consequence- "When mother-in- law/accused was found to remain present in her own house, even after the crime was over, and seen crying taking the dead body of her daughter-in-law, such post conduct of accused/mother-in-law is a strong fact requiring due consideration"

The bench said that when the unnatural homicidal death was held in the victim's dwelling room of her in-laws' house, ordinarily shared with her husband, and the cause of such death being pre-eminently and exceptionally within the knowledge of her accused husband, which remained un-explained by the accused husband himself, recording an order of conviction under Section 302/34 I.P.C. as against appellant mother- in-law even after taking note of such facts would be without any reasons and not justified accordingly.

"The commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34 I.P.C., but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 I.P.C. on the simple ground that death of the victim was held in her matrimonial home", asserted the bench.

The Court stated that the essence of Section 34 being conscious meeting of minds of persons participating in the criminal action, there is hardly any scope of drawing application of Section 34 against the appellant mother-in-law for causing homicidal death of the victim, which was admittedly held in a room ordinarily occupied together by the deceased herself and the accused husband.

"The conviction and sentence as against the accused mother-in-law needs sufficient modification. Accordingly, we modify the conviction and sentence of accused mother-in-law under Section 498A/34 I.P.C., and she deserves to be favoured with an order of acquittal for offence under Section 302/34 I.P.C", ordered the bench, directing that the Accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34.

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