DINESH RANABHAI VANKAR....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/450/2003 CAV JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 450 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G.SHAH ==============================================================
Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
================================================================ DINESH RANABHAI VANKAR….Appellant(s) Versus STATE OF GUJARAT….Opponent(s)/Respondent(s) ================================================================ Appearance:
MR MJ BUDDHBHATTI, ADVOCATE for the Appellant(s) No. 1 MR KP RAVAL, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 25/07/2013 CAV JUDGEMNT 1 The appellant being accused before the Sessions Court, Rajkot, in Sessions Case No. 116/2002, has been convicted for the offence punishable under section 323 of the Indian Penal Code [IPC] and ordered to suffer rigorous imprisonment [RI] for a period of six months and to pay fine of Rs.1,000/- with further condition to suffer simple imprisonment [SI] for one week in default of payment of such fine. He is also convicted for the offence punishable under section 498-A of the IPC and ordered to suffer RI for a period of one year and to pay fine of Rs.1,000/- with further condition to suffer SI for three weeks in default of payment of such fine. Such orders of conviction are under challenge in the present appeal. Considering the quantum of sentence, the Sessions Court has released the appellant on the same day by suspending the sentence for further period of 30 days. Such order was directed to continue till disposal of this appeal by an order dated 17/6/2003, whereas appeal was admitted on 21/4/2003 by this Court.
2 Heard Ld. Advocate Mr. Budhdhbhatti for the appellant and Mr. KP Raval, Ld APP for the respondent.
3 The charges levelled against the appellant, as transpired from exh. 1 of the record and proceedings of the Sessions Case, are to the effect that the appellant has caused cruelty upon his wife Gauriben, who is victim of the incident and succumbed to her injuries on 3/8/2001. Thereby it was alleged that the appellant has committed offence punishable under sections 498-A, 323, 504 and 306 of the IPC. However, by the impugned judgment, since the charges were not proved, the appellant is acquitted for the offence punishable under sections 306 and 504 of the IPC. Therefore, the only consideration at present would be to the effect that whether punishment under sections 498-A and 323 of the IPC are proper or not, since it is challenged on several grounds as set-out in the memo of the appeal by the appellant.
4 In addition to oral submissions made by both the learned advocates, I have perused the record of appeal and record and proceedings of the trial Court. Since detailed history of incident, FIR, investigation and filing of the charge-sheet are well described in the impugned judgment and memo of appeal, considering the evidence on record, it would not be necessary to reproduce the entire history from the date of incident till date. Therefore, if we directly come to the issue on hand that whether charges under sections 323 and 498-A of the IPC are proved against the appellant accused or not, prima-facie we have to find out the fact from the available evidence and to decide the following points:
i] Total period of marriage life between the husband and wife being appellant and victim, so as to ascertain that whether there can be any presumption against the husband or that prosecution has to prove the allegations beyond reasonable doubt as required in general criminal jurisprudence, without giving any specific benefit to the prosecution and the victim.
ii] Whether accused appellant has played any active role in the incident and thereby whether he has abetted the offence of suicide by the wife?
iii] Since the appellant is convicted under section 323 of the IPC also, whether appellant- accused was responsible for injuries, if any, sustained by the victim?
5 To answer such questions, the perusal of record is material, which categorically shows that the marriage between the victim and the appellant was solemnized before 10 years. This fact can be confirmed from the deposition of mother of the victim, namely Maniben Jivabhai, who is examined as PW No. 7 at exh. 21 and Mangabhai Jivabhai, who is examined as PW No. 8 at exh. 22 being brother of the victim Gauriben. These both witnesses being mother and brother of the victim Gauriben, had no reason to say anything adverse than the factual details so far as the period of marriage is concerned. Both these witnesses have categorically deposed on oath before the trial Court that marriage of the appellant and victim was solemnized before 10 years of the incident. There is no reason to disbelieve such fact. The period between FIR and such deposition is less than two years and, therefore, in any case there cannot be a presumption that the incident had taken place within the period of seven years from the date of marriage. In view of such factual details, there cannot be a presumption under section 113 of the Indian Evidence Act to consider that if wife expires even by committing suicide within a period of seven years of her marriage, then there should be presumption against the husband and his in-laws that they must have committed cruelty and abetted the commission of suicide by the wife and, therefore, in criminal trial against them, it was their duty to prove that they were innocent. However, in the present case, when marriage was solemnized before more than eight years and as deposed by the mother and brother, before 10 years no such presumption would be applicable against the appellant accused and thereby it would be the duty of the prosecution to prove the charges that may be alleged in the charge-sheet by adducing proper and cogent evidence so as to prove beyond reasonable doubt that crime as alleged, has been committed by the accused only and by nobody else. Therefore, if prosecution fails to prove the involvement of the appellant accused in commission of crime without reasonable doubt, then certainly accused should be entitled to acquittal even considering benefit of doubt in his favour.
6 In such cases of suicide, though cogent, relevant and direct evidence may not be available in all cases, Court has to rely upon the circumstantial evidence to confirm the commission of offence and guilt of the accused. However, while confirming the guilt only on circumstantial evidence, the Court has to be more vigilant and evidence should be so clear that there cannot be any doubt regarding commission of offence by the accused.
7 In view of the above discussed settled legal position, if we peruse the evidence on record, it transpires that on 3/8/2001 victim had set her ablaze at her residence and during treatment she succumbed to the burn injuries. Immediately after the incident, the appellant has tried to save her and he had also received burn injuries. When the victim was admitted to Civil Hospital, Rajkot, incident was intimated to the concerned police station and thereupon Investigating Officer [IO] rushed to the place of incident in response to entry no. 36 of the police station diary. The IO immediately informed the Mamlatdar for recording dying declaration [for short DD ] and Mamlatdar has recorded DD of the victim. PW 1 at exh. 8, namely Liladharbhai Kanjibhai Patoliya is the Mamlatdar, who has recorded such DD. On perusal of his deposition, it becomes crystal clear that he received Yadi at exh. 9 at about 23.30 hours from the hospital police chowky and, therefore, he rushed to the hospital. He had further deposed that before recording of DD, he verified about mental fitness of the deceased victim so as to confirm whether she is able to make any statement and only after such satisfaction, he recorded the DD at about 23.45 hours in the question answer form. It is his say that DD was concluded at about 00.45 hours i.e. intervening night of 3rd and 4th August, 2001. While confirming the status of the victim deceased, he has stated that she was conscious and capable to make declaration and witness had also got endorsement from the doctor on duty regarding condition of the victim deceased that she is capable to make statement during recording of DD. The witness has been cross-examined at length, but sum and substance from the entire deposition makes it clear that while recording the DD when witness has asked the name of the victim deceased, to which she has replied as Gauriben and thereafter, when witness has asked her that what happened to you, the victim had in categorical terms replied that on that day, his husband present appellant Dineshbhai Ranabhai had reached late at home in the evening and when she has asked for the reason for being late, the appellant had become angry upon her and started to abuse her in anguish and that they had such quarrel every now and then, but today she became emotional because of such quarrel and, therefore, she has poured kerosene on her body on her own and ignited her and on getting fire, she started to shout. Thereupon, the witness has further asked her that when you i.e. victim was pouring kerosene, where was your husband and whether he had restrained or stopped her to do so or not, the victim has stated that appellant has not restrained her to pour kerosene, but he had gone out of the house. She has further stated that she was more disturbed because of such act of the appellant that though she was pouring kerosene on her body and though her husband was aware about such act, he had left the house and, therefore, she has set the fire on her own. Thereafter, when the witness has asked the victim that what happened thereafter to your child, the victim has stated that my husband has come inside the house and tried to extinguish the fire and taken her to the hospital. Inquiring about cruelty or harassment from any other person, the victim has categorically deposed that she has no ill-will or ill treatment from anybody else and on specific question that whether she would like to add anything, she has specifically stated that no she does not want to add anything. On such deposition, DD has been considered as proved on record and admitted at exh. 10, which simply confirms the averments by the witness in his deposition. During his cross-examination, the defence has simply gave the confirmation that at the time of recording of DD, the victim was conscious with some details regarding presence of other relatives and timing, etc. The defence has also got confirmation from the witness that he has not added anything on his own in the DD and the information recorded in the DD is absolutely as per the knowledge and disclosure by the victim, who was fully conscious to make such statement. Such deposition is in confirmation with the statement in the DD at exh. 10 and, therefore, there is no reason to disbelieve such DD.
8 In view of the above discussion with reference to the DD, when it is clear and certain that the appellant had neither poured kerosene nor ignited the kerosene so as to burn the victim. But the only allegation against the appellant is to the effect that when victim was pouring kerosene upon her, the appellant has left the house and thereby victim had received shock and become more emotional, which resulted into igniting kerosene by her. However, except such statement in the DD, there is no other evidence to confirm such factual aspect.
9 Therefore, if we rely upon the DD and deposition by the Mamlatdar, who has recorded the DD being exhs. 10 and 8 respectively, what transpires is that the quarrel or dispute between the husband and wife i.e. appellant and the deceased, was not of such nature for which someone has to commit suicide and that there was no active or actual role of the appellant either in pouring kerosene or putting the victim on fire. On the contrary, the victim herself has categorically stated that when she put the fire on her own, her husband had come back and tried to extinguish the fire. Thereby it cannot be said that the appellant had committed any offence as alleged in the charge-sheet. However, the later part of the DD, which is to the effect that even after knowledge that victim was pouring kerosene on her own, instead of stopping her to pour the kerosene, the husband has gone out of the house. Though such act can be alleged to be treated as an act of abetment or an omission to take hold on the victim so as to restrain her from pouring kerosene on her, the fact remains that except one single line, there is absolutely no other evidence to prove that practically the appellant was aware about act of pouring kerosene by the victim on her own. Though it can be said that the averment in the DD is sufficient evidence to conclude certain things, it is also clear and certain that such statement is not of such a nature which confirms the commission of cruelty so as to drive the victim to commit suicide. There is reason to say so because so far as the marital relation and domestic or other cruelty are concerned, practically there is no allegation and, therefore, there is no allegation to prove that in fact the relations between the victim and the appellant was so disturbed because of such cruelty and that there is no option for the victim to commit suicide. Such conclusion can be arrived at only if there is corroborating evidence regarding cruelty to the effect that there is no other alternate for the victim but to commit suicide. Even if we consider such statement as it is against the appellant, it is certain that only such statement is not sufficient to believe and thereby to conclude that there was such a cruelty by the appellant towards the victim and that victim had no other option except to commit suicide. The fact is also certain that immediately on getting knowledge of fire, the appellant had tried to save the victim and during the process, he also received burn injuries and he himself has taken the victim to the hospital. Commission of crime could be presumed if appellant had remained inactive or silent so as to allow the victim to die at the spot of incident only. We cannot ignore that as the life of the victim is precious, so the life of the appellant also, which cannot be resulted into serving punishment only because of the formal domestic quarrels between husband and wife as being happened in the present case.
10 However, this is not the only reason for coming to the conclusion that the act of the appellant was not of such a nature which resulted into the incident because the manner in which the investigation has been completed and over-all evidence on record also confirms that there is lack of sufficient evidence to confirm the guilt of the appellant.
11 The appellant is also entitled to benefit on technical ground when prosecution and investigating agency has failed to comply with the order passed by the trial Court below exh. 8/A, being application under section 91 of the Code of Criminal Procedure made by the appellant directing the Court to request the IO to produce the OPD case papers and treatment papers of indoor treatment by the hospital as well as entry made in police diary of hospital chowky regarding the incident with all other relevant documents. Such application was allowed by the trial Court by an order dated 18/1/2003 directed the Public Prosecutor to call for the record. However, the fact remains that such record was never called upon by the prosecution and was never produced before the Court so as to enable the appellant to prove the basic information that was disclosed immediately after the incident. Therefore, in absence of disclosure and production of the material evidence on record, adverse inference is certainly required to be drawn against the prosecution that such evidence must be disclosing innocence of the appellant. On such count itself order of conviction requires to be set aside. Such fact was recorded by the Sessions Court in para. 44 of the judgment that though the accused called upon the prosecution to produce certain documents vide application exh. 8/A and that the Court passed order to call upon the documents, no such documents have been placed on record till entire trial is over and, therefore, the accused has not been able to put up his case.
12 The other disturbing position in the impugned judgment is with reference to the conviction under section 323 of the IPC, though there is specific evidence on record that there were no external injuries on the body of the victim and though victim herself has categorically deposed that the quarrel was only in the form of abuse and anguish and thereafter, the appellant had gone out of the house. Thereby when even victim has not stated about the physical insult or injury by the appellant and when other supporting evidence also confirms such fact that there was no external injury, it is difficult to convict the accused appellant under section 323 of the IPC. The prosecution witness no. 2 Arvindbhai Manjibhai Kalasava at exh. 11 though supported the case of the prosecution regarding drawing of inquest panchnama, which is at exh. 13, in response to Yadi at exh. 12, he has also categorically stated that there was no external injuries noticed on the body or person of the deceased. The same fact is also confirmed by Dr. Mahendrabhai Chunilal PW 3 at exh. 14, who had performed autopsy of the dead-body of the deceased and he had also endorsed that no any external injury is seen except burns of 1st and 2nd degree, which are superficial to burns on whole body except private part and foot. He has categorically deposed that there was no sign of external injury either on the body or on the head and that cause of death is cardiac respiratory failure. He has proved post mortem note at exh. 15. Even in cross-examination also he has categorically deposed that there was no sign of beating. Therefore, there is no reason to come to the conclusion, as arrived at by the Sessions Court, that the appellant has committed offences under section 323 of the IPC also and thereby there is no reason to convict the appellant under section 323 of the IPC.
13 Then comes the evidence of other witnesses being mother of the appellant as well as the victim and brother of the victim. One can ignore deposition of the mother of the appellant considering that she may be interested to see that the appellant gets acquittal, but so far as the relation between the appellant and victim is concerned, when other evidence is also not stating about the cruel treatment by the appellant to the victim, at least there is corroboration to that part of the evidence when mother of the appellant Gangaben, wife of Ranabhai being PW 6 at exh. 20 states that the victim had several burn injuries and she succumbed to the injuries and the appellant was saved and that when she reached at the hospital, victim was not able to speak anything and she had never noticed the quarrel or tense relations between the appellant and victim. Though this witness has been declared as hostile, the fact remains that she being the mother of the appellant and mother-in-law of the victim, she would have certainly noticed the tense relations between the husband and wife and, therefore, when she deposed that there was no such tense relations between husband and wife, there is no reason to disbelieve such statement.
14 It is also important to note that the PW 4 at exh. 17 has categorically denied drawing of panchnama of the place of incident as submitted by the prosecution. Though such panchnama at exh. 18 is not only confirming the presence of burnt mattress at the place, it also confirms the presence of water on the surrounding area, which confirms that some-one has tried to extinguish the fire, which confirms the attitude of the appellant that at-least he had tried to extinguish fire as confirmed by the victim herself.
15 Whereas, PW 5 at exh. 19, who is neighbour of the appellant and victim, namely Mulajibhai Nanjibhai has categorically stated that Gauriben has not conveyed her that she set fire to herself because of cruelty of her husband. Though he was declared as hostile, he has categorically deposed that when he reached the hospital, police persons were present and they did not allow him to go inside where statement of victim was being recorded.
16 Most important evidence is of Maniben, wife of Jivabhai, being mother of the victim as PW 7 at exh. 21 and Mangabhai Jivabhai being brother of the victim as PW 8 at exh. 22. Though the mother of the victim has stated before the Court that there was dispute between the victim and the appellant and the appellant was misbehaving with the victim and was suspecting the character of the victim and that he had dragged the victim out of the house and that he had asked for money which she had paid, in cross-examination she has to admit that two months before the incident, victim had been to her house and that even the appellant was also burnt in the incident. However, she had an audacity to say that he does not burn while saving her daughter, though neither she nor her husband had gone to see the appellant when he was under treatment. However, with all such allegations, the specific statement by her is disturbing wherein she has admitted that she had never talked to the police i.e. she had never disclosed anything to the police, but everything is disclosed to the police by her son only and that both, husband and wife have difficulty of hearing and that police had not even asked anything to her husband and that police has recorded their statements only by asking her son. She has also categorically admitted that she is illiterate and unable to read and write and she does not know what papers were prepared by the police. Therefore, when story of cruelty has been alleged by this witness being mother of the victim, when she admits that she had not given any statement to the police, but the police had recorded the statement asking her son only, the entire case and evidence is rest upon the evidence of her son. Thus, the star witness is Mangabhai Jivabhai at exh. 22 being PW 8, who is son of said Maniben and brother of victim Gauriben. Surprisingly, the brother of the victim has in categorical terms deposed before the Court on oath that marriage life of the victim and the appellant was of more than 10 years and that there was no disturbance in their marriage life and their life which was in fact happy and that victim was regularly visiting their house and that there was no harassment or cruelty except formal or general quarrel, but the appellant had never demanded any money and had never beaten the victim. Such categorical statement in examination-in-chief cannot be discarded when mother of the victim has admitted that their statements were recorded by the police, were practically disclosed by their son and not by them. During cross-examination, this witness has further admitted that quarrel between the appellant and victim was of simple nature and it is as good as quarrel between him and his own wife. Moreover, he has categorically stated that mental position of my mother is not stable and she speaks anything at any time without knowing that what she is speaking. He has also categorically stated that there is no anguish or enmity with the appellant and that he does not know about the reason for the last quarrel between the husband and wife being the appellant and victim and, therefore, why she had committed suicide.
17 Rest of the witnesses are from investigating agency, who have simply narrated story and details of the investigation and supported the same which is obvious, but in totality, none of such evidence confirms the circumstantial evidence against the appellant.
18 Even the Sessions Court has categorically observed and recorded in the impugned judgment itself that there is no major infirmity amongst the evidence of different witnesses and documents and that deceased had stated that she herself poured kerosene upon her and ignited fire, which resulted into burn injuries. Thereby, there is no allegation and thereby there is no evidence that the appellant had taken any active part in the fateful incident where his wife has died. Surprisingly, one fact has been missed by the trial Court, which is to be reflected from the panchnama of the incident wherein though investigating agency has endorsed that there was smell of petrol, it is specifically stated that there was no smell or presence of kerosene at the place of incident. Whereas, entire case, right from the victim, is based upon the story that the victim has poured kerosene upon her. Even if we consider such discrepancy as bonafide mistake or slip of pen, the fact remains that the prosecution has failed to prove beyond reasonable doubt that there was actual cruelty by the appellant towards victim and that victim has no other option but to commit suicide.
being independent witnesses, had turned hostile and they have not supported the case of the prosecution.
20 So far as the ability of hearing by PW No. 7 Maniben being mother of the victim is concerned, even the trial Court has no option but to record in the impugned judgment that in the Court also, her deposition has been recorded while using loud voice. Thereby what his son has deposed before the Court stating that she is unable to hear, has been proved and, therefore, deposition of son is to be believed in toto.
21 However, though the evidence is as discussed hereinabove, unfortunately the trial Court has in para. 35 of the impugned judgment, without any support from the evidence, observed that according to victim, she was beaten when she asked the accused the reason for coming late, through there was no such evidence anywhere on record. Even after such unwarranted observation, the trial Court has no option but to say that if she is beaten by the accused appellant, recourse was open for her but it was not last option for her to commit suicide. Such observations are made in paras. 35 and 38 of the impugned judgment, but unfortunately from para 40 all of a sudden, trial Court has taken a different view though it is observed that one can hardly come to the conclusion that acts, omissions and commissions of the accused on the date of the incident was knowing act and that was intended that the deceased may be driven to commit suicide. The trial Court has ultimately held the appellant guilty of offence under sections 498-A and 323 of the IPC.
22 So far as non-production of documents as per order below application exh. 8/A is concerned, the trial Court has discarded the arguments regarding adverse inference to be drawn against the prosecution stating that it was the duty of the accused to bring such fact to the notice of the Court during recording of evidence i.e. trial and when the accused has remained silent and kept mum till the final arguments and that when he was prejudiced for want of such documents, attention of the Court would have been drawn, suggest that the accused was not in need of such documents/ papers, which were called upon by exh. 8/A. Such argument by the Court itself cannot be accepted for the simple reason that it is neither the duty nor the obligation on the part of the accused either to remind the prosecution or to the Court for compliance of the order below exh. 8/A, but it is the bounden duty of the prosecution and legal duty of the Court to see that requisite facts are brought on record, because basic principle of criminal jurisprudence is quite clear that the accused must be given a fair opportunity to defend himself and no evidence or material can ever be hidden from the Court, more particularly if it is in favour of the accused and when accused prayed for production of such evidence which is within control of the prosecution. It is certain that while filing the charge-sheet, the prosecution may select not to produce particular evidence on record. But at the same time when accused had called for and when Court has allowed such prayer, it is obligatory on the part of the prosecution to produce documents, more particularly when there is no dispute regarding existence of such documents, which are within their control, rather to only hide them, because those documents are able to prove innocence of the accused. If particular evidence or document is within the control of the prosecution, which is otherwise proving the innocence of the accused, it is the right of the accused to call upon such document and when Court passed order to produce such documents, then it is the duty of the prosecution and the Court to see that such document and/or evidence is produced before the Court without fail. Non-production of any such material, document or evidence, even if it may not support the case of the accused, would certainly oblige the Court to draw adverse inference against the prosecution that such document must be in favour of the accused so as to either prove his innocence or to disprove the case of the prosecution. Unfortunately, instead of drawing adverse inference, which is the rule of law, the trial Court has tried to infer that even if such documents are produced, it may not change the position and, therefore, calling upon of such documents was not fruitful.
23 Surprisingly, after discussing the entire evidence, though the trial Court has come to the conclusion that the prosecution has failed to prove the guilt of the appellant since the prosecution is not having any sufficient evidence for invoking provisions of section 306 of the IPC, the trial Court has thought it fit that in that case the appellant has at-least committed offences under sections 498-A and 323 of the IPC. The perusal and scrutiny of the impugned judgment shows that practically the Ld. Sessions Judge has confirmed the guilt of the appellant under section 498-A and 323 of the IPC only in one line being last line of para. 75, but uptill then the entire evidence was so discussed that there is no evidence to prove the guilt of the appellant to invoke provisions of section 306 of the IPC, but when wife has set herself to fire in a matrimonial house, the trial Court has thought it fit to apply the provisions of section 498-Aon broad aspect that likelihood is such that it is sufficient if the husband is likely to drive wife to commit suicide or to commit grave injury or danger to her, considering the interpretation of word likely and probable , it should be believed that most probably what has been alleged has happened. The trial Court has also considered such act as willful conduct of the appellant so as to abet the suicide by just going away from the house because of the quarrel, leaving the wife to commit suicide.
24 However, considering the over-all evidence on record, it transpires from the evidence, record and proceedings and discussion from the impugned judgment as well as discussion on the factual aspect as narrated hereinabove, that it cannot be said that this is a fit case where likelihood or probability should be considered so as to infer that the appellant had committed offence under section 323 or 498-A of theIPC. The reason is obvious that so far as offence under section 323 of the IPC is concerned, as discussed hereinabove, there is no allegation and there is no evidence. Whereas so far as offence undersection 498-A is concerned, when Court has to rely upon the circumstantial evidence, the settled law is clear that circumstance must be reasonable and beyond doubt and may not be confirmed on probability.
25 For my decision I am relying upon the following decisions :
25.1 In the case of Narayanamurthy v. State of Karnataka reported in AIR 2008 SC 2377, the Hon ble Apex Court has discussed the issue and held as under :
12. In State of Rajasthan v. Raja Ram ((2003) 8 SCC 180), it was held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. xxx xxx xxx xxx
21. In the present case, we have independently analysed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry.
xxx xxx xxx
28. It is proved on record that deceased B.V.D. Mani, father of deceased Jagadeshwari, gifted a silver Panchapatre and silver plate to A-1 at the time of performing customary thread changing ceremony in connection with birth of girl child and such ceremony is prevalent in their society. Such gifts are not enveloped within the ambit of ‘dowry’. It is also to be noticed that the High Court on the same set of evidence has chosen to acquit A-3 (the mother of A-l), whose case is no better than that of A-1. Even the unproved allegations of ill-treatment, harassment and demand for dowry and the evidence led by the prosecution are similar to that led against A-3.We agree with the High Court that the evidence against mother (A-3) is insufficient and inconsistent to convict her and, in our view, it is the same against A-1. This deficiency in the evidence proves fatal to the prosecution case. Even otherwise, mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B, IPC.It is to be established that ‘soon before death’, deceased was subjected to cruelty or harassment by her husband for, or ‘in connection with demand for dowry’. In the afore-mentioned situation, the provisions of Section 304B, IPC, and Section 113B of the Evidence Act could not be attracted to hold A-1 guilty of the offence of dowry death and/or cruelty in terms of Section 498A, IPC. The prosecution, therefore, must be held to have failed to establish any case against A-1 herein.
29. Having given our careful consideration to the above-stated submissions made by the learned counsel for the parties and in the backdrop of the evidence discussed hereinabove and tested in the light of the principles of law highlighted above, it must be held that the evaluation of the findings recorded by the High Court suffer from manifest error and improper appreciation of the evidence on record. Therefore, the judgment of the High Court setting aside the order of acquittal of A-1 cannot be sustained.
30. For the reasons stated above, we are of the considered opinion that the evidence led by the prosecution in regard to the involvement of A-1 in the death of Jagadeshwari is not proved beyond reasonable doubts by the prosecution, hence, the High Court was in error in basing conviction of A-1 on weak and slender evidence appearing against him.
31. In the result, this appeal succeeds and the same is allowed. The judgment of the High Court dated 05-12-2006 passed in Criminal Appeal No.903/2000 is set aside and the order of acquittal of A-1 recorded by the learned trial Judge shall stand restored. The amount of fine imposed by the High Court upon A-1, if paid, shall be remitted to him. Narayanamurthy shall be set at liberty by the Jail authorities if his detention is not required in any other case.
25.2 Therefore, though this judgment is against the acquittal appeal, principles of law would certainly apply. Thereby it has been confirmed by the Hon ble Apex Court that when there is no evidence regarding cruelty and demand of dowry, there cannot be presumption either under section 113-B of the Evidence Act or for commission of offence under section 498-A of the IPC. The situation is similar before us like the above referred judgment i.e. the evidence led by the prosecution with regard to involvement of the accused in the death of victim is not proved beyond reasonable doubt and there is no clear evidence regarding cruelty, if any, committed by the accused towards or upon the victim. Whereas so far as demand of dowry is concerned, it is not the case at all either of the prosecution or even the family members of the victim to that extent. Though in the case of Amar Singh v. State of Rajasthan reported in AIR 2010 SC 3391 the Hon ble Apex Court has confirmed the conviction of husband Amar Singh, specifically observed that the prosecution must establish that soon before the death of the victim, she was subjected by the accused to harassment or cruelty in connection with demand for dowry; so as to apply the presumption under section 113-B of the Evidence Act and to convict the accused under section 304-B of the IPC. In our case, when there is no case of demand of dowry at all, the only issue remains is regarding cruelty subjected by the accused. Whereas, the evidence discussed hereinabove has made it clear that even brother of the victim has admitted that there was no harassment and thereby there was no cruelty. The only statement in the DD that domestic quarrel was only for the reason that why husband has come late and thereby there was some quarrel with harsh words cannot be treated as harassment or cruelty so as to drive the woman to commit suicide or to grave injury or danger to life, limb or health, which is basic ingredients for making the accused husband liable for the offence under section 498-A. In para. 14 of said judgment, the Hon ble Court has held as under.
14. Once it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in connection with demand for dowry, the Court has to presume that the appellant has committed the offence under Section 304B, IPC. This will be clear from Section 113B of the Indian Evidence Act which states that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person, to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
25.3 So far as cruelty is concerned, the Hon ble Apex Court has in the case of Undavali Narayana Rao v. State of A.P. Reported in AIR 2010 SC 3708, considered the issue at length relying upon previous decisions and though in the reported case, conviction was confirmed, it was held that there should be a case of continuous state of affairs of torture by one to another. The relevant discussion of said judgment is reproduced hereinbelow for ready reference, which makes it clear that in absence of such evidence on hand, the conviction under section 498-A would not be proper.
“498A. 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;
(b) harassment of the woman where such harassment is with a view to coercing her to 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, I. P. C. 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 woman (II) With a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or 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.
12. In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318 : (1999 AIR SCW 1012), this Court considered the meaning ofcrueltyin the context of the provisions under Section 13 of the Hindu Marriage Act, 1955 and observed that :
“mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.”
13. In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710 : (1994 AIR SCW 45), this Court, while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under :
“17. …… It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made…… . The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.”
14. In Mohd. Hoshan v. State of A. P. (2002) 7 SCC 414: (2002 AIR SCW 3795), this Court while dealing with the similar issue held that mental or physical torture should be”continuously”practiced by the accused on the wife. The Court further observed as under:
“Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degrre of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
15. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559 : (2000 AIR SCW 3481), this Court held that while considering the case of cruelty in the context to the provisions of Section 498-A,I.P.C., the Court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
16. In Sushil Kumar Sharma v. Union of India, AIR 2005 SC 3100 : (2005 AIR SCW 3569), this Court explained the distinction of cruelty as provided under Sections 306 and 498-A, IPC observing that under Section 498-A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306, IPC, suicide is abetted and intended. Therefore, there is a basic difference of the intention in application of the said provisions.
17. In Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078 : (2002 AIR SCW 2140); this Court held that “cruelty” has to be understood having a specific statutory meaning provided inSection 498-A, IPC and there should be a case ofcontinuousstate of affairs of torture by one to another. In explanation “b”, there is absence of physical injury but it includes coercive harassment for demand of dowry etc. therefore, the aforesaid provisions deal with patent and latent acts of the husband or his family members. But both are equally serious in terms of the provisions of the statute.
18. Provisions of Section 498-A, IPC were introduced by an amendment to curb the harassment of a woman by her husband and/or his family members, for demand of dowry etc. under the garb of fulfillment of the customary obligations.
19. The instant case is required to be examined in the light of the settled legal propositions.
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23. Taking into consideration various other circumstances, particularly, the agreement dated 14-3-1990, the Trial Court came to the conclusion that the relations between the husband and the wife were not cordial, and that she had been harassed to meet the unlawful demand of the appellant as he wanted to dispose of the immovable property and compel the deceased to fetch more money from her parents. The execution of the deed dated 15-6-1999 (Ex. P. 1) was enough to show that it had been executed in order to restrain the family members of the deceased to launch criminal prosecution against the appellant. The Court also took other circumstances into account, that the death of the deceased was in the house of the appellant; neither the appellant nor his mother made any attempt to inform the family members of the deceased about the death; her dead body had been cremated hurriedly without any autopsy having been conducted; there were independent witnesses like Sunkara Nagaraju (PW5) etc. and came to the conclusion that she had been harassed/ coerced to the extent that Malathi committed suicide. The Court rightly found the charge under Section 498-A fully proved against the appellant.
25.4 The above view is in confirmation of the decision rendered by the Hon ble Apex Court in the case of Gopal v. State of Rajasthan reported in AIR 2009 SC 1928, wherein it is categorically held that it has not been proved by the prosecution that the deceased has been subjected to cruelty and single act of cruelty or beating is not sufficient. The relevant paras of this judgment is reproduced hereinbelow for ready reference.
7. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptiveSection 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983.It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498Agives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence. Under Section 304B it is ‘dowry death’ that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections.(See Akula Ravinder and others v. The State of Andhra Pradesh (AIR 1991 SC 1142)). Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.
8. The above position was highlighted in Balwant Singh and Ors.
v. State of H.P. [2008(10) JT 589). 9. Section 498A IPC has
two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. ‘Cruelty’ has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation has definite application to the facts of the present case. Additionally, effect of Section 113A of the Indian Evidence Act cannot be lost sight of.
10. Further as per Section 113A of the Evidence Act when the question as to whether 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 that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants.
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12. So far as Section 498-A(b) is concerned, there must be an evidence of demand of dowry. There is no evidence in that regard adduced by the prosecution. That being so, as rightly contended by learned counsel for the appellant Section 498-A(b) has no application.
13.The crucial question is whether the appellant can be convicted in terms of Section 323 IPC. Even if it is so as contended by learned counsel for the respondent, considering the fact that the appellant has already suffered custody of about 6 months, we do not consider it necessary to go into that question. The appeal is allowed. The conviction as recorded is set aside. The bail bonds executed by the appellant for release on bail pursuant to the order dated 14.1.2002 shall stand discharged.
26 In view of the above facts, circumstances, evidence on record and discussion hereinabove, there is ample reason to disturb the order of conviction and sentence of the appellant for the offence punishable under sections 323 and 498-A of the IPC passed by the trial Court in the form of impugned judgment and order, which deserves to be set aside, acquitting the appellant from all the charges. Therefore, the appeal is required to be allowed.
27 The appeal is allowed. The appellant is acquitted from all the charges levelled against him. The appellant is on bail in view of the order dated 17/6/2003 and hence his bail bond stands cancelled. The amount of fine of Rs.2,000/- is to be refunded to the appellant by the trial Court.
(S.G.SHAH, J.) * Pansala.
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