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Crl.A./36/2016 on 27 February, 2019

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GAHC010010032016

THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

PRINCIPAL SEAT AT GUWAHATI

Criminal Appeal No.43/2016

1. SMT NANDITA KONWAR,
DAUGHTER OF MR. DEVANAND KONWAR,
RESIDENT OF NEAR BORTHAKUR CLINIC,
KHARGHULI, GUWAHATI-4,
DISTRICT KAMRUP (M), ASSAM.

…… APPELLANT.
-Versus-

1. THE STATE OF ASSAM.
2. SRI UTPAL GOHAIN,
SON OF LATE JITENDRA NATH GOHAIN,
RESIDENT OF NEAR BORTHAKUR CLINIC,
KHARGHULI, GUWAHATI-4,
DISTRICT KAMRUP (M), ASSAM.

…… RESPONDENTS.

Advocate for the revision appellant: Mr. B.D. Konwar, Sr. Advocate.

Advocate for the respondents: Mr. P. Kataki,
Mr. U. Choudhury and
Mr. C. Phukan.

Criminal Appeal No.36/2016
1. SRI UTPAL GOHAIN,
SON OF LATE JITENDRA NATH GOHAIN,
RESIDENT OF KHARGHULI, NEAR BORTHAKUR CLINIC, GUWAHATI,
P.S. LATASIL,
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DISTRICT KAMRUP (M), ASSAM.

…… ACCUSED/APPELLANT.
-Versus-
1. THE STATE OF ASSAM.
2. MS. NANDITA KONWAR,
WIFE OF UTPAL GOHAIN,
RESIDENT OF KHARGHULI, NEAR BORTHAKUR CLINIC, GUWAHATI,
P.S. LATASIL,
DISTRICT KAMRUP (M), ASSAM.

…… RESPONDENTS.
Advocate for the revision accused/appellant: Mr. P. Kataki,
Mr. U. Choudhury and
Mr. C. Phukan.
Advocate for the respondents: Mr. B.D. Konwar, Sr. Advocate.

BEFORE
HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Dates of hearing : 14.02.2019 19.02.2019.
Date of delivery of judgment: 27.02.2019

JUDGEMENT AND ORDER (CAV)

Both these appeals are taken up together for hearing and disposal, as the same have arisen

out of same judgment and order dated 22.12.2015, passed by the learned Addl. Sessions Judge (FTC)

No.3, Kamrup (M) at Guwahati, in Sessions Case No.340/2012, under Section 498(A)/307 of the IPC,

convicting the accused (appellant in Crl. Appeal No.36/2016) by the trial Court to pay of fine of

Rs.1,000/- (Rupees one thousand) for the offence under Section 323 of the IPC and in default of

payment of fine, the accused was sentenced to undergo S.I. for 10 days.

2. Being aggrieved by the aforesaid judgment and order, the informant Nandita Konwar preferred

the Crl. Appeal No.43/2016 for alteration of the judgment on proper appreciation of evidence and

materials available on record and the convicted accused Utpal Gohain filed the Crl. Appeal

No.36/2016, for setting aside the impugned judgment and order of conviction and sentence and to

acquit the accused/appellant from the offence, as stated above.

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3. I have heard Mr. B.D. Konwar, learned senior counsel appearing for and on behalf of the

appellant in Crl. Appeal No.43/2016 and Mr. P. Kataki, learned counsel for and on behalf of the

accused/appellant in Crl. Appeal No.36/2016. I have also perused the materials available before the

Court and evidence on record (LCR).

4. In short the dispute between the parties may be narrated as follows:

On 25-03-2010, informant Smti Nandita Konwar who is an ACS (Assam Civil Services)

officer lodged an ejahar before the Officer-in-charge of All Women Police Station, Panbazar alleging

inter alia that she was married with accused Utpal Gohain, who is an Executive Engineer ASEB, on 20-

11-1994 and since after the marriage, the accused used to torture her both physically and mentally.

The accused person assaulted her several times during their conjugal life on flimsy domestic reasons.

On 18th December, 2004 her husband had mercilessly beaten her without provocation, causing

severe mental agony and since then she was compelled to sleep separately under the same roof and

her husband does not treat her as his wife. On 3rd February, 2010, her husband assaulted her

over flimsy reason. He caught hold her dress without any warning, knocked her to the floor

and started raining blows upon her. He dragged her along the floor of dining room to her

bedroom hitting her all the time. On 24th March, 2010 at 8.30 a.m., while she was preparing tea,

her husband suddenly went berserk and without any provocation attacked her from behind by

holding her hairs and pulling and dragging her from kitchen along the floor of the dining room. When

she was lying on the floor, her husband gave blows on her head, neck and pulled her hair out.

Thereafter he picked up a big brass ladle from the kitchen and aimed at her head and tried to kill her.

Had the blow struck her head, it could have caused fracture and cracked her skull. Somehow she

managed to get up and ran to her bedroom. Her husband chased her but she was able to slam the

door shut and latched the door from inside and thus save her life. Thereafter she informed the matter

to her parents. Her mother came to her matrimonial home and took her away.

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5. After the incident she visited Mahendra Mohan Choudhury Hospital for treatment and

thereafter visited Down Town Hospital for further treatment. Her mother-in-law Annada Gohain and

her brother-in-law Mrinal Gohain always poke their noses into the affairs of the couple and

interfere, harass and instigate in every sphere of day to day activities. The informant further

alleged that her mother-in-law always passes derogatory remarks at her not having child and has

been insisting her husband to divorce her. Her husband suffers from sexual inadequacies and her

advice to consult doctor went unheeded. Because of this her husband suffers from deep seated

complexes he indulges in abnormal and erratic behaviour. Her husband is highly suspicious and cast

aspersions on her character several times. Her husband addicted to pornography and her

request to stop this perverse behaviour has fallen on deaf ears.

6. On the basis of the ejahar lodged, the All Women P.S. Case No. 38/2010, under Sections 498-

A/307 IPC was registered. The Investigating Officer (I.O.) took up the investigation, visited place

of occurrence, prepared a sketch map, seized one brass ladle and recorded the statements of

the witnesses under section 161 CrPC.

7. After completion of the investigation, the I.O. submitted charge sheet against the

accused/husband of the complainant Utpal Gohain and her brother-in-law Mrinal Gohain, under

Sections 498-A/307/34 IPC.

8. The learned Additional Chief Judicial Magistrate, Kamrup (M) after furnishing the copies to the

accused, committed the case to the Court of learned Sessions Judge, Kamrup (M) Guwahati as

the case was exclusively triable by the Court of Session, to face the trial.

9. The learned Additional Sessions Judge No.1, Kamrup (M) at Guwahati, after perusal the

case record and the case diary and hearing learned counsel of the parties was pleased to

frame formal charge under Sections 498-A/307 IPC against the accused Utpal Gohain and

discharge accused Mrinal Gohain. The charges framed were read over and explained to the accused
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to which he pleaded not guilty and claimed to be tried.

10. During the trial, the prosecution examined six witnesses including the Medical Officer and the

Investigating Officer and the defence examined one witness.

11. The accused was examined under section 313 CrPC, wherein the accused persons denied

the allegations leveled against him and at the conclusion of trial, after hearing the arguments of the

parties, the accused Utpal Gohain was found guilty convicted u/s 323 IPC and sentenced him to pay of

fine of Rs.1,000/- (Rupees one thousand) and in default of payment of fine, the accused was

sentenced to undergo S.I. for 10 days, as stated earlier.

12. Being aggrieved by the impugned judgment and order, both the informant as well as the

accused/convict have filed separate appeals raising grievance upon their point of view, as mentioned

above.

13. I have heard the arguments advanced by the parties and perused the materials available on

record. Let us appreciate the evidence on record.

Evidence:

PW.1 Nandita Konwar, the informant of the case stated in her evidence that her marriage was

solemnized with the accused on 20-11-1994. They started their conjugal life in her matrimonial house

situated at Kharghuli. Her husband and his family members subjected her to physical and mental

cruelty from the date of her marriage. Her husband is an impotent person and therefore she could not

give birth but the family members of her husband knowing about his impotency, they insulted her as

barren without any reason and her husband’s family has a history of genetic sexual disorder. Her

husband and her family members never fed her properly and she had to live with half empty stomach

most of the time. For the same she suffered health breakdown and developed chronic sinusitis, fever,

hair loss and general weakness. She was compelled to eat out in hotel to satisfy her hunger.

Further she deposed that her husband was addicted to pornography and has large collection of
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pornographic books and magazines. He compelled her for unnatural sexual acts and behaviour. Being

a newly married wife she tried to make her husband happy despite it hurt her sense of dignity. Her

husband used to watch pornographic movies in her computer whole night disrupting her sleep and

she found difficult to work in her computer.

It is stated that a departmental proceeding was initiated against her husband but he did not

disclose the same to her and she came to know about the same which hurt her sentiment and mental

peace.

In August 2008, she was transferred from Goalpara to Guwahati and she informed her

husband that she was coming to Guwahati on that day but on her arrival in her matrimonial home,

she found the main door was locked and though she called her husband, he did not answer the

phone. Then she called her brother and sister-in-law to find out why the gate was locked. They

abused her over phone and refused to help her and she was compelled to remain standing outside for

three hours with luggage. Finally her brother-in-law sent the key and she entered into her house.

Such incident of harassment and torture caused her great depression and she was in the verge of

nervous break-down and almost compelled her to commit suicide.

She further stated that 18-12-2004, her husband supposed to go to Sivsagar to her father-in-

law’s house. At the last moment he insisted her to accompany with him but because of certain official

urgency she refused to go and then her husband attacked her like a mad dog and threw her to the

floor of dining room and tried to strangulate her. She was lying flat on the floor and her husband sat

on her stomach with both legs spread on both sides on her body. He rained several blows on her face

and tried to smash her nose and eyes. With great difficulty she avoided her head and saved her face.

He tried to strangulate her and she struggled for taking breath. Somehow she managed to escape

from the clutches of her husband and saved herself by taking shelter inside her room. She sustained

injuries in her neck, face, etc. That night her husband slept in the guest room and since then he has
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been sleeping in the guest room and she has been sleeping in her room bolting door of the room from

inside.

On 03-02-2010 her husband assaulted her over a very trivial matter in the dining room. He

pulled her hair and threw her on the floor of dining room. Thereafter he gave a fist blow over her face

and body and dragged her along floor of the dining room to her bedroom, without any provocation.

On 24-03-2010 at about 8.30 a.m. when she was preparing tea, her husband suddenly

attacked her from behind without any rhyme and reason. He grabbed her hair and pulled her hair with

both the hands from behind and pulled her out of the kitchen to dining room. She fell on the floor of

the dining room. Then her husband gave fist blows over her body. Her husband assaulted her like a

mad man. Her husband pulled her hair and assaulted her for about fifteen minutes. She tried to

protect herself but could do nothing. Thereafter her husband went to kitchen and brought a brass

ladle and tried to assault her by means of said ladle on her head. As she removed her head the blow

fell on the side of her neck and her hand. Had the brass ladle blow on her head the blow would have

killed her. Her husband tried to assault her with intent to kill her. Somehow she got up and ran to her

bed room and bolted the room from inside.

She informed about the incident to her parents and after one hour her mother Niva Konwar

came and took her away. The domestic help of her husband Biren Medhi heard the commotion. On

25-03-2010 she lodged FIR at All Women Police Station. The police sent her to MMCH for medical

examination. Doctor advised her to do x-ray of her head and skull which she did at Down Town

Hospital and submitted the report to police. After the incident she did not comb her hair for one week.

Ext. 1 is her FIR and Ext. 1 (1) is her signature. Police seized brass ladlevide Ext. 2 seizure list. Ext. 2

(1) is her signature. Material exhibit 1 is the seized brass ladle.

In her cross-examination, she has deposed that she has not filed divorce petition. She has

been staying in her matrimonial home on the strength of interim order passed in a case filed under
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the Domestic Violence Act. Her matrimonial house is a two storied building and she stays in the first

floor. But she does not know where her husband stays. The house belongs to her mother-in-law and

her brother-in-law stays in the ground floor. Before filing the FIR she and her husband stayed in the

first floor. On 12-07-1997 she had undergone an MTP operation in Delhi. By operation her pregnancy

was terminated. She has denied the suggestion of the defence that she did not disclose the same to

her husband and her allegation that her husband is an impotent is false. She could not remember the

name of doctor to whom she consulted for her health break-down for remaining under half empty

stomach. She has denied the suggestion of the defence that she did not suffer any health break-down

and she was not kept under starvation. She has denied the suggestion of defence that she did not tell

the investigating officer that her husband compelled her to take part in unnatural sex and behaviour.

She has denied the suggestion of the defence that she did not tell the investigating officer that her

husband used to view pornography in her computer.

She has admitted that in departmental proceeding no penalty was imposed upon her husband

only a warning was issued. She has denied the suggestion of the defence that on 01-12-2014 her

husband went to Sibsagar to meet his father and returned from Sibsagar either 20 or 21 December

2014. She has denied the suggestion of the defence that in the absence of her husband she took

leave from office for writing script for a documentary for Sanjeeb Bhattachryya. She has denied the

suggestion of the defence that while her husband questioned her about the leave she provoked and

assaulted him. She has admitted that after the incident of December 2004 they started staying

separately. She has denied the suggestion of the defence that on 18-12-2004 no such incident had

taken place. She has denied the suggestion of the defence that she directed her husband to clean the

toilet. She has admitted that on 24-03-2010 the cook was not present as he had left months ago. She

has denied the suggestion of the defence that on 24-03-2010 she asked her husband to take her

clothes to laundry and told her husband to work as servant which provoked him and he pushed her.

She has also denied the suggestion of the defence that on that day her mother came and took her to
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her parental home for a religious function. She has admitted that she prepared draft of FIR and got it

typed by a professional typist. She has admitted that she inserted word “and tried to kill me” before

filing the FIR. She has denied the suggestion of the defence that she inserted the said words after

lodging the FIR. She has admitted that while she was working as Sub-Divisional Officer (Civil) Bajali,

the Chairman of the Sub-Divisional Development Board lodged a complainant against her for her

arrogant behaviour and she was transferred from Bajali. While she was working as Executive

Magistrate in Guwahati, she was once censured by the Lower Assam Commissioner for making

sweeping allegations against a clerk. She made complaint against the D.C. Kamrup (M), Mr. Samir

Singha for sexual harassment and Home Commissioner stated that the allegations were false and

baseless and the said matter is pending before National Commission for Women. She has denied the

suggestion of the defence that she has the habit of making false allegations. The defence has

exhibited five pages of diary as Ext. A, seems to be written by her and she stated that her husband

stolen the same from her almirah and she filed a case against him. She once lodged complaint against

a bank before the Banking Ombudsman. She has denied the suggestion of the defence that once she

lodged complaint against her mother. She has denied the suggestion of the defence that she deposed

falsely.

PW.2 Biren Medhi was the domestic help of the accused. He has deposed that upon filing of

the case, the police came and interrogated him. On the day of the incident he heard that accused was

talking and upon asking as to what had happened he replied nothing. He could not say what had

happened on that day. At present he is working at DTDC and the mother of the accused is the owner

of DTDC.

In cross-examination he has deposed that he had been in the house of accused situated at

Kharghuli from 2007. He had never seen any dispute between the accused and the informant. After

receiving the summons the informant met her, and she asked him not to speak against her and if he

deposed against the accused she would arrange a job for him.

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PW.3 Samikshya Das is the sister-in-law of the accused. She has deposed that she is a teacher

and at the time of incident, she was not at her residence. After returning home she heard nothing.

Next day when police came then she came to know that the complainant filed the case.

In cross-examination she has deposed that from 1998 to 2000 all of them including the

informant were residing in the same house and shared same kitchen. In the year 2000 while the

accused came, then accused and the informant started to stay in the first floor of the house and

they used to stay in the ground floor. Her mother-in-law was with her. She could not say any dispute

between the accused and the informant.

PW.4 Dr. Satyendra Nath Choudhuryis the medical officer who examined the informant on

24.03.2010 in Mahendra Mohan Choudhury Hospital, Guwahati and found following

injuries:-

1. Bluish red contusion over left parietal eminence of scalp of the complainant. Size 2cm x 2cm.

She was advised to do x-ray of scalp. It was done outside of Down Town Hospital and shown to him

later did not reveal any bonny lesion.

2. Tenderness with contusion on nape of neck. It was bluish red in colour. 2 cm x 2 cm in size.

3. Bluish red contusion over left side of face 2 cm x 2 cm in size.

All injuries were fresh simple and caused by blunt and hard object. He has exhibited

the injury report as Ext. 3 and Ext. 3 (1) is his signature

In cross-examination he has deposed that injuries caused to the injured Nandita may be

caused by falling or dashing against a table or wall.

PW.5 Niva Konwar is the mother of the informant. She has deposed that on 25 th March, 2010

she got a phone call from her daughter Nandita from Kharghuli. Her daughter was in her in-laws

house. Her daughter was requesting her to come with crying and distress voice. She had never got

such type of phone call earlier from her daughter as she is a bold and strong girl. Her daughter told
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her that her husband wanted to kill her. So, she immediately rushed to the house of her daughter

and on arrival her daughter opened the door of her bed room and started crying. She was in

impatient mood. She asked her son-in-law regarding the fact who told him something in his

self defence. Thereafter she took her to her house at Dispur. She saw some injuries on her face and

neck and sent her to doctor for treatment. Her daughter told her that the accused assaulted her

with stick and serving spoon and wanted to kill her. Her daughter was not happy with her

married life.

In cross examination she has deposed that she sent her daughter to MMC hospital for

treatment from her house at about 12 noon and thereafter at Down Town Hospital for x-

ray. Her daughter returned to the house of her husband and staying in her husband’s house. She

asked her daughter to stay at Nayan Apartment at Christianbasti but her daughter was not

interested. Both her daughter and son-in-law were responsible for their misfortune.

PW.6 Bina Kakoty is the investigating officer who was the Officer-in-charge of All Women

Police Station on 25th March 2010. She received the ejahar and registered the same under section

498-A/307/34 IPC. She visited the place of occurrence and found the house was under lock and key.

She found domestic help Biren Medhi and quizzed him. She attempted to arrest the accused but could

not succeed. On 07-04-2010 accused Utpal Gohain and his brother Mrinal Gohain surrendered in the

police station with a copy of bail order. She examined them and granted bail. On 12-04-2010 she

collected medical report of the informant. On 30-05-2010 she seized a serving spoon from the

kitchen of the accused as shown by the informant. She examined other witnesses and also

prepared the sketch map of place of occurrence. On 11-02-2011 she submitted charge sheet against

the accused persons. She has exhibited the ejahar (Ext.1), the form of FIR (Ext.4), seizure

list (Ext.2), Sketch map of place of occurrence (Ext.5) and her signatures as Ext.1 (a), Ext. 4 (1), Ext

2(2) and Ext.5(1). She has also exhibited seized material as M. Ext. 1.

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In cross-examination she has confirmed that she received the FIR on 25-03-2010 at 8.30

a.m. The informant did not disclose before her that her husband demand for unnatural sex

and used to see pornography in her computer disturbing her sleep. She examined neighbor

Arun Mazumdar but others refused to say anything. She has denied the suggestion of the defence

that without having any material she submitted charge sheet against the accused.

DW.1 Mrinal Gohain is the younger brother of the accused. He has deposed that in the

year 1995 his brother and the informant went to New Delhi as they were posted there and the

informant returned in the year 1998 and his brother returned in the year 2000. The informant

did not maintain cordial relation with them and was harsh towards them. His brother was very much

upset and one day he noticed lacerated wound on his cheek. He came to know that his sister-in-

law attacked him. One day he heard shouting of his brother and the informant and he asked

them to talk slowly. Next day morning he received a phone call where he was informed

about arrival of police to his house. He inquired the matter from his brother who told that on

previous day morning the informant told him to wash cloths. His brother felt insulted and pushed

the informant.

In cross-examination he has deposed that he never asked the informant about the incident.

Biren Medhi was their domestic help. He continued to stay with them after expiry of his parents

although he has a full time job at DTDC. He had not asked the informant why she had shouted

in the morning on the day of incident. He has denied the suggestion of the prosecution that he

deposed falsely.

14. We may recall here that the informant has preferred the appeal being dissatisfied with the

order of conviction u/s 323 IPC and according to the appellant, there was no proper appreciation of

evidence on record and non-application of mind to the legal provision whereas the evidence on record

has established the offence u/s 498A/307 of IPC and the accused respondent should be punished
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accordingly. On the other hand according to the accused/appellant his conviction u/s 323 IPC is

unsustainable in view of the plea taken by him and the defence evidence which reveals all about the

erratic and mischievous conduct of the informant wife towards her husband and in-laws and he has

also explained all about the marital affairs between the parties, in his statement u/s 313 CrPC.

15. The learned counsel Mr. B D Konwar has vehemently argued that the evidence of the informant

is clear and convincing supported by medical evidence is enough to sustain conviction under the

charges that was framed by the trial Court. Referring to the decision (2013) 3 SCC 462 Vajresh

Venkatray Anvekar Vs. State of Karnataka it has been submitted that the wife has a right to live

with dignity and the husband has no right to assault his wife. Referring to the statement of the

accused u/s 313 CrPC where he has admitted about such pushing of his wife for the quarrel between

the parties it has been submitted that indirectly the husband has admitted about the injury sustained

by his wife. It has been stressed that in terms of the injury sustained by the appellant/informant as

found by the medical officer, there cannot be any denial that the informant/appellant was assaulted by

the husband/appellant. Thus, according to the learned counsel informant has made out a case of

cruelty against the appellant/husband as well as the offence u/s 307 IPC stands proved.

16. The learned counsel for the respondent has vehemently opposed such contention of the

petitioner side and on the contrary it has been submitted that there is no adequate evidence on

record so as to reveal the matter of cruelty and not to speak about attempt to murder as has been

alleged. It has been urged that the accused/appellant has fairly narrated all the episodes of the

marital affairs between the parties in his statement u/s 313 CrPC and on the last incident, the accused

appellant had to push his wife due to extreme provocation made by his wife. Attention of this Court is

also drawn to the statement given by the accused on each and every aspect in detail. Referring to the

entire conduct of the informant/appellant, it has been submitted on behalf of accused appellant that

in fact, husband was subjected to tremendous mental and even physical torture by his wife.

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17. Learned counsel for the appellant/husband has placed reliance in (2009) 13 SCC 330

Manjuram Kalita Vs. State of Assam and also (2011) Crl. Law Journal 399 Rajiv Neog Vs.

State of Assam to submit that in order to establish the cruelty u/s 498A IPC it is to be established

that the woman has been subjected to cruelty continuously, persistently or at least in close proximity

of time of lodging the complaint. The cruelty for the purpose of Section 498A is to be established in

the context of Section 498A of IPC as it may be different from other statutory provisions. It is to be

determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his

act and to find out whether it is likely to drive the women to commit suicide.

18. It has been urged that the evidence of the informant/wife/appellant is not at all proved by any

supporting evidence as regards the different episode of torture cited by the informant/appellant. The

evidence on record is highly insufficient to constitute cruelty within the meaning of Section 498A IPC.

On the other hand, the allegation of attempt to murder is also a false pretext as because, had the

accused/appellant intention to kill his wife, he could have easily done the same as none was there to

prevent him. Thus, it has been submitted that informant/appellant herself is the wrong doer for her

blame worthy conduct towards the husband thorought their martial life for which they even resided in

separate room under the same roof without there being any warmth of the relation since 2004.

19. To speak about the conduct of his wife in an around the home as well as outside, the relevant

portion of cross-examination of the informant/appellant is being pointed out, which according to the

appellant/husband is enough to show that his wife is of desperate character for which she did not

hesitate to raise wild allegation against different persons/officials including the husband. She has

admitted in cross-examination that because of her arrogant behaviour complaint was lodged against

her by the Chairman of the Sub-Divisional Board and she was transferred thereafter. Further She was

also censured by the lower Assam Commissioner for making sweeping allegation against a clerk. She

also herself lodged complaint against DC, Kamrup, Bank Ombudsman. The learned counsel for the

appellant/husband by way of additional affidavit has filed certain documents to show about the
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conduct of the respondent/wife who has desperately pursued before the concerned authority for

dismissal of the petitioner from the service by drawing disciplinary proceeding and urged this Court to

take judicial notice of the same, to which the learned counsel for the appellant/wife has objected.

20. Let us examine the provision of Section 498A as to what amounts to cruelty in the parlance of

law. The provision of the Section 498A IPC read as follows:

Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the

husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with

imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. — For the purposes of this section, “cruelty” means–

(a) any wilful 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 health (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 or valuable security or is on account of failure by her or any

person related to her to meet such demand.

“Cruelty has been defined by the Explanation added to the section itself. The basic ingredients of Section

498-A IPC are cruelty and harassment. The elements of cruelty so far as clause (a) is concerned, have been

classified as follows:

(i) any “wilful” conduct which is of such a nature as is likely to drive the woman to commit

suicide; or

(ii) any wilful conduct which is likely to cause grave injury to the woman ; or

(iii) any “wilful” act which is likely to cause danger to life, limb or health, whether physical or

mental of the woman.

For the purpose of clause (b) the essential ingredients are as under:

(i) the harassment of a married women.

(ii) with a view to coercing her or any person related to her to meet the unlawful
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demand of dowry or for any property or valuable security or on account of her failure of

any person related to her to meet such a demand.

Therefore, it is evident that the charge under section 498-A can be brought home if the

essential ingredients either in clause (a) or (b) or both are found duly established.

21. In Md. Hussain Vs. State of AP (2002) 7 SCC 414 it has been held that to constitute the

cruelty the mental and physical torture should be continuously practised by the accused on his wife.

Whether the once spouse is guilty of cruelty to the other is essentially a question of fact. The impact

of complaints, accusation or taunt on a person amounting to cruelty would depend on various factors

like social background, environment, education etc. In Rajrani Vs. State (Delhi Admin.) (2001)

SCC (Crl. 1518) and in Giridhar Sankar Tawade Vs. State of Maharastra (2002) 5 SCC 177

the Hon’ble Supreme Court held that while considering the case of cruelty in the context of the

provision of Section 498A IPC the Court must examine that allegations/accusation must be of a very

grave nature which will drive the women to commit suicide, and there should be a case of continuous

state of affairs of torture by one to another. Such a case is to be proved beyond all reasonable doubt.

22. The instant case is required to examine in the light of the settled legal proposition.

Ø The appellant Nandita Kownar was married to the accused Utpal Gohain far back in year

1994 she has filed the case in the year 2010 raising the allegation of cruelty by describing

certain incident of assault as on 18.12.2004, 03.02.2010 and 24.10.2010. The first incident

was of 2004 and second two was of 2010 so it cannot be said the torture was continuous. In

all those incidents she is stated to have beaten by her husband brutally but she has not

explained as to the reason why she was beaten by her husband. Point to be noted that both

the couples were highly educated and belongs to well to do family so it is very difficult to

accept the fact that the informant wife was beaten without any rhyme and reason. There is no

any evidence to show about mental disorder of the husband/appellant so as to assault his wife

without any rhyme and reason.

Page No.# 17/19

Ø All scanty evidence regarding such assault of different period, is without any supporting

evidence. We may understand that the scope of eye-witness is rare in a matrimonial matter

but it is difficult to accept as to why mother of the victim even failed to support the case of his

daughter about such alleged cruelty. As has been discussed above, the mother of the

informant is totally silent all about the earlier incident or any other torture upon the informant

as alleged by her. The evidence of mother is only relates to the last incident i.e on 24.03.2010,

while she was called by the informant and reported about the incident of assault and she saw

some injury on her face and neck.

Ø The allegation of cruelty cannot rest solely upon uncorroborated evidence of the

informant/victim on description of old, scanty incident without any corroborating evidence. Her

own witness PW-2, PW-3 and PW-5 are totally silent as about any sort of incident that has

been narrated by the informant in her evidence. Only the medical officer PW-4 has supported

the factum of injury sustained by the informant as on 24.03.2010. In such eventuality we can

at least held that on 24.03.2010 the petitioner sustained some injury on her person which is

stated to be inflicted by her husband and her husband has also admitted about some incident

on the fateful day.

Ø In his statement u/s 313 CrPC accused appellant has submitted that as on the day of

incident on 24.03.2010 while he was working in the kitchen, his wife thrown some bundle of

cloths to him and directing him to press in laundry immediately and told him that he has to do

such job of the servant as there is no servant in the house. Being provoked by such indecent

behaviour of his wife he pushed his wife who dashed against the dining table and he went out

and do not know about the injury. Such a plausible explanation given by the accused

/appellant can be accepted in the given facts and circumstances of the case.

Ø There is reason to believe that the informant/wife has given exaggerated version of the
Page No.# 18/19

different incident for which there is no any supporting oral or medical evidence including her

mother. Moreso, she has stated about certain incident of 2004 about brutal assault upon her

and also alleged continuous torture upon her but it cannot be understood as to why she did

not divulge such incident to any person nor opted for divorce being an educated and dignified

lady. But still she residing in the same house of the husband. No any dignified woman will

tolerate, such torture of her husband if it prevails over a period of time and here the informant

is a ACS Officer and she is not supposed to tolerate such torture if actually happens.

Ø Her evidence that she was frequently assaulted, harassed without providing food,

compelling to lead a unusual sexual life, that the husband is impotent person of suspicious

character etc. is not at all convincing nor supported by any sort of evidence. It is not at all

conceivable that a daughter will not report such marital misfortune to her mother and

admittedly her mother has not lent support any of such allegation that has been raised by the

informant.

Ø The allegation that husband is impotent is totally a false pretext while she admitted in her

cross-examination that she became pregnant in the year 1997 and the same was terminated in

Delhi. The accused in his statement has stated that pregnancy was terminated by her without

intimation or permission of him while he was in Canada.

Ø None of the witnesses who happened to reside in the same house has supported any of the

allegation raised by the informant. In his evidence PW-2 has stated that he was directed by

informant to speak against the accused person and he will be benefited if he deposed in her

favour. The credibility of the evidence of informant is lost for all such serious infirmities.

Ø Regarding the allegation that accused compelled her to see pornography picture and

indulged in unnatural sex is also remained uncorroborated as same was even not stated before

the I/O (as confirmed by the IO). Thus each and every material allegation remains
Page No.# 19/19

uncorroborated hence not sustainable.

Ø The brother-in-law of the informant in his evidence as DW-1 has also stated about such

harsh behaviour of the informant towards her husband, in-laws and even her officials. It is

stated by him that the informant never hesitate to insult he husband on every occasion and

she used to live life of her own without caring her husband, by allowing access of her male

friends in absence of her husband.

23. Thus, from the totality of the evidence on record and other facts and circumstances, it can be

held that the offence of cruelty u/s 498A IPC is not at all proved. Similarly, there is lack of evidence to

prove the charge u/s 307 IPC. However, taking into note of the injury sustained by the informant on

the last incident which has been supported by the medical officer as well as mother of the victim it

can only be held that the offence u/s 323 IPC is made out. Accordingly it can be held that the learned

trial Court has rightly appreciated the evidence on record in proper perspective of law as well as facts

which calls for no interference.

24. Both the appeals are devoid of merit and accordingly dismissed. Return the LCR.

JUDGE

Comparing Assistant

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