3 Whether Their Lordships Wish To … vs State Of … on 13 October, 2017

R/CR.A/974/2002 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 974 of 2002
With
CRIMINAL APPEAL NO. 141 of 2003

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT

1 Whether Reporters of Local Papers may be allowed to see NO
the judgment?

2 To be referred to the Reporter or not? NO

3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO

to the interpretation of the constitution of India, 1950 or any
order made thereunder?

MOHAMMED YUSUF ALLAUDDIN ANSARI 5….Appellant(s)
Versus
STATE OF GUJARAT….Opponent(s)/Respondent(s)

Appearance:

MR JM PANCHAL with M S ANSARI, ADVOCATE for the Appellant(s)
No. 1 – 6
MRS NASRIN N SHAIKH, ADVOCATE for the Appellant(s) No. 1 – 6
MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE P.P.BHATT

Date : 13/10/2017
CAV JUDGMENT

1. Present appeals assail the judgment and order dated 29/10/2002 passed

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by the learned Sessions Judge, Court No. 1, Ahmedabad in Sessions

Case No. 384 of 2000, whereby, while acquitting all the accused from

the charge of offence punishable under Sections 306 and 304(B) of the

Indian Penal Code, 1860 (for brevity, ‘the IPC’) and Section 4 of the

Dowry Prohibition Act, 1961, they were held to be guilty for the

offence punishable under Section 498-A of the IPC and the original

accused Nos. 1 to 4 sentenced to undergo rigorous imprisonment (RI)

for 03 years and a fine of Rs.1,000/- each and in default of payment of

fine, to undergo further RI for 03 months, whereas, the original

accused Nos. 5 and 6 were sentenced to undergo RI for one year and a

fine of Rs.500/- and in default of payment of fine, to undergo, further

RI for one month. Accordingly, Criminal Appeal No. 974 of 2002 has

been filed by the appellants – original accused against conviction,

whereas, Criminal Appeal No. 141 of 2003 has been filed by the

appellant – State against original accused Nos. 5 and 6 for

enhancement of sentence.

2. Facts in nutshell of the prosecution case are that marriage of deceased

Shababanu, the daughter of complainant, had been solemnized

somewhere in the year 1996 with the original accused No. 3. The

accused Nos. 1 and 2 are the brothers-in-law (Jeth and Diyar,

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respectively) of the deceased and accused Nos. 5 and 6 are the parents-

in-law of the deceased. In the marriage span of about three years, the

accused used to demand dowry from the deceased to start the business

of bakery and for that, they used to inflict physical and mental torture

upon the deceased and thereby, subjected the deceased with immense

cruelty. When it became unbearable, on the unfortunate day of the

incident, the deceased committed suicide by setting herself ablaze by

pouring kerosene. Thus, the accused committed the alleged offence for

which, complaint came to be lodged against them.

2.1 Pursuant to the complaint, investigation was carried out. After

investigation, charge-sheet was filed and as the case was triable by the

Court of Sessions, it was committed to the City Sessions Court,

Ahmedabad.

2.2 The trial Court framed charge against the accused, which was read over

to them. The accused pleaded not guilty to the charge and claimed to

be tried. Therefore, the prosecution produced oral as well as

documentary evidence. In order to bring home the charge against the

original accused, the prosecution has examined as many as 08

witnesses and also produced several documentary evidence. At the end

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of the trial, Further Statements of the accused under Section 313 of

Criminal Procedure Code, 1973 (for brevity, ‘the Code’) were recorded

in which they denied the evidence forthcoming on the record and stated

that a false case has been filed against them. Thus, after recording

above-referred Further Statements and hearing the arguments on behalf

of prosecution and the defence, the learned Sessions Judge has come to

the aforesaid conclusion by way of impugned judgment and order

being aggrieved and dissatisfied with which, the present appeals

against conviction and for enhancement of sentence, as aforesaid, have

been filed.

3. Heard, Mr. J. M. Panchal, the learned advocate for the original accused

and Mr. K. L. Pandya, the learned Additional Public Prosecutor, for the

State.

3.1 The learned advocate for the original accused places on record a copy

of Death Certificate of appellant No. 6 herein (in Criminal Appeal No.

974 of 2002) – original accused No. 6 – Vakilabanu Allauddin Ansari

and submitted that during the pendency of the appeals, she has expired.

Accordingly, present appeals are abated qua original accused No. 6.

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3.2 So far as Criminal Appeal No. 974 of 2002 filed by the appellants –

original accused against conviction is concerned, learned advocate Mr.

Panchal submitted that the trial Court has committed a grave error in

convicting the present appellants as the prosecution has failed to prove

the whole ingredients of the offence alleged against the accused. He

submitted that the learned trial Court has not properly appreciated the

evidence on record and there are many infirmities in the findings

recorded by the learned Court below. He took this Court through the

oral as well as the documentary evidence and submitted the learned

trial Judge has failed to appreciate the evidence on record in its true

and proper perspective and thereby, has committed a grave error of

law, fact and the evidence on record. He submitted that the appellants

– accused have been acquitted from the charge of Sections 306 and

304(B) of the IPC and Section 4 of the Dowry Prohibition Act, for

which no appeal has been preferred by the prosecution, however, have

been convicted for the offence punishable under Section 498-A of the

IPC. He submitted that the prosecution case, as it stands for, the

accused used to demand money from the deceased for business of

bakery and for that, they used to inflict physical and mental torture and

thereby, subjected her to immense cruelty, which led the deceased to

take such a drastic step of committing suicide by setting her ablaze.

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The learned advocate for the appellants submitted that firstly, the

prosecution has to prove that the accused were demanding money for

the business of bakery from the deceased and secondly, whether the

said demand of money can be termed as cruelty or not. The learned

advocate for the appellants – accused submitted that the prosecution

has miserably failed to prove these aspects which were crucial to come

to a certain conclusion. The learned advocate for the appellants –

accused further submitted that, if for the sake of argument it is believed

that the accused were demanding money, then too, by no stretch of

imagination, the same can be termed as cruelty as only demand of

money cannot be termed as cruelty. The learned advocate submitted

that if, after the marriage, certain demand, if at all, is made, it is not the

dowry. He submitted that casual incident in matrimonial life cannot be

said to be cruelty and harassment. He submitted that to establish that

there was harassment to the deceased and the deceased was subjected

to cruelty for dowry, the cruelty should be persistent in nature, which

in the case on hand, the prosecution has failed to prove. He further

submitted that there must be an intention to drive a lady to commit

suicide which would amount to cruelty etc. Suppose, if any demand is

made, would every lady commit suicide? He harped upon the word

” wilful conduct” . The willful conduct should be of such a nature that it

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should drive a lady to commit suicide.

3.3 The learned advocate for the appellants – accused took this Court

through the evidence of PW-1 Mohammed Ilyas Altafhusen, Ex. 24,

the complainant and father of the deceased and thereafter, to the

evidence of PW-2 Dr. Rohit Chimanlal Zariwala, Ex. 27, the doctor

who had performed the post mortem of the deceased and submitted that

there is no reference about the demand of dowry in the evidence of

PW-1. Besides, referring the cross-examination of this witness, he

submitted that this witness has admitted that in her first Dying

Declaration (DD), the deceased had mentioned that she sustained burn

injuries while cooking.

3.4 The learned advocate for the appellants – accused then referred

evidence of PW-2 Dr. Rohit Chimanlal Zariwala, Ex. 27, who had

performed post mortem of the deceased and submitted that this witness

has clearly opined that the deceased had sustained burn injuries and the

said injuries could be sustained by accident and also by setting oneself

ablaze.

3.5 The learned advocate for the appellants – accused then referred to the

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DDs of the deceased so as to submit that there are severe

inconsistencies in the same. Firstly, he took DD at Ex. 31, which was

recorded on 09/04/1998 by the Executive Magistrate and submitted

that the deceased herself has stated before the Executive Magistrate

that when the incident had occurred, nobody was there in the house and

she had sustained burn injuries on account of primus burst meaning

thereby, it was accidental. He then took to the second DD at Ex. 43,

which was recorded on 10/04/1998 by the investigating officer, in

which, the deceased has stated that, there was harassment from her

parents-in-law and the brothers-in-law and name of accused No. 3 (her

husband) is not given. The next is the DD at Ex. 39, which was

recorded by a social worker, in which also she has alleged harassment

by her parents-in-law and the brothers-in-law and the name of accused

No. 3 has not been given. The learned advocate for the appellants –

accused submitted that these DDs are crucial for the reason that after

the incident in question the deceased had survived for some days. Her

first DD was recorded on 09/04/1998 in which, she has stated nothing

about the so-called harassment and cruelty to which she was being

subjected to and thereafter, in the second and third DDs, the same is

projected by way of several and severe improvements, which makes

the versions in the later DDs doubtful, for the reason that if at all the

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same would be case, she would have mentioned at the first instance

only. Besides, the care which ought to have been taken while

recording the statement of the deceased, appears to have not been taken

during the subsequent statements. Admittedly, opinion of the doctor

whatsoever had not been taken while recording the subsequent

statements. Accordingly, in the submission of the learned advocate for

the appellants – accused, the subsequent statements having lost their

sanctity, cannot be relied.

3.6 The learned advocate for the appellants – accused further submitted

though as per PW-1, the complainant father, the deceased used to

complain about the ill-treatment being meted out to her to her mother

on phone, she (the mother of the deceased) is not examined by the

prosecution for the reason known to them.

3.7 The learned advocate for the appellants – accused submitted that even

otherwise the allegations made in the complaint are general and vague;

no specific role has been attributed to any of the accused, however, the

learned trial Judge has failed to consider the said aspects and

accordingly, the sentence is also not in proportion as the original

accused Nos. 5 and 6 have been imposed RI for one year. The learned

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advocate for the appellants – accused submitted that it is a rising trend

to implicate all the family members in the crime in such type of case,

which ultimately, is the abuse of process of law and Court.

3.8 Thus, making above submissions, the learned advocate for the

appellant – accused submitted that there are material infirmities in the

case of the prosecution and the prosecution has miserably failed to

prove its case against the appellants beyond reasonable doubt and the

impugned judgment and order being contrary to the law and the

evidence on record, interference of this Court is warranted in the

present appeal and he requested that the present appeal (Criminal

Appeal No. 974 of 2002) may be allowed in the interest of justice.

3.9 So far as the appeal preferred by the State for enhancement of sentence

of accused Nos. 5 and 6 is concerned, the learned advocate for the

appellants – accused submitted that as aforesaid, the prosecution has

miserably failed to prove its case against the accused beyond

reasonable doubt and hence, this Court may not entertain such appeal

preferred by the State and it is requested to dismiss the same.

3.10 In support of his case, the learned advocate for the appellants – accused

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has relied upon following decisions:

i) Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in
AIR 1984 SC 1622;

ii) Rameshchandra C. Soni and others Vs. State of Gujarat,
reported in 2002 (3) GLH 182;

iii) Vipin Jaiswal (A-I) Vs. State of Andhra Pradesh represented by
Public Prosecutor, reported in (2013) 3 SCC 684;

iv) Subhashbhai Chandubhai Patel Vs. State of Gujarat, reported in
2006 (3) GLH 724;

v) Preeti Gupta and another Vs. State of Jharkhand and another,
reported in 2010 (3) GLH 258;

vi) Rohtash Vs. State of Haryana, reported in (2012) 6 SCC 589;

vii) State of Andhra Pradesh Vs. P. Khaja Hussain, reported in
(2010) 2 SCC (Cri.) 380;

viii) Gopal Vs. State of Madhya Pradesh, reported in (2009) 12 SCC
600;

ix) T. K. Reddy Vs. State of A.P., reported in (2002) 7 SCC 96;

x) Kashi Vishwanath Vs. State of Karnataka, reported in (2013) 7
SCC 162.

4. Per contra, Mr. Pandya, the learned Additional Public Prosecutor, for

the State, while opposing the appeal against conviction and supporting

the judgment and order qua conviction, contended that when the

offence in question has already been proved by the prosecution against

the accused beyond reasonable doubt, the trial Court has committed no

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error in convicting the appellant – accused. He submitted that cogent

and reliable evidence of prosecution witnesses have been appreciated

in true and proper perspective by the learned trial Judge and there

appears no manifest illegality and/or perversity and/or infirmity in the

findings recorded and conclusion arrived at by the learned trial Judge.

He also took this Court through the relevant evidence on record as well

as the observations made by the learned trial Judge in the impugned

judgment and order and submitted that for arriving such a conclusion,

plausible reasons have been given by the learned trial Judge. The

learned Additional Public Prosecutor also took this Court through the

above-referred three DDs of the deceased and submitted that the

deceased has clearly stated in her second and third versions that on

account of harassment and cruelty being subjected to her by the

accused, she had taken such a step of committing suicide. He

submitted that only for the reason that in her first DD she has not

clarified certain things, the whole prosecution case cannot be thrown

away, which is otherwise proved by cogent evidence more particularly,

the evidence of PW-1, Ex. 24 and PW-2, Ex. 27. He also submitted

that the case projected in the FIR has been supported in full by the

complainant (PW-1) in his evidence. Accordingly, the findings

recorded by the learned Court below are based on oral as well as

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documentary evidence and there being no infirmity in the said findings,

the view taken by the learned trial Judge may be affirmed and it is

requested to dismiss the appeal against conviction filed by the accused.

4.1 So far as appeal filed by the State for enhancement of sentence of

original accused Nos. 5 and 6 is concerned, the learned Additional

Public Prosecutor has submitted that though offence punishable under

Section 498-A of IPC has been proved against all the accused and all

are convicted for the same, the learned trial Judge has committed an

error in imposing lesser punishment qua the aforesaid accused of RI for

one year, whereas, for the same offence the other accused have been

imposed RI for three years. Accordingly, in the submission of the

learned Additional Public Prosecutor, sentence, in proportion to the

offence committed by the accused ought to have been imposed,

however, the learned trial Judge having imposed lesser punishment, it

is requested to allow the appeal filed by the State and enhance the

sentence of original accused Nos. 5 and 6 suitably.

4.2 In support, the learned Additional Public Prosecutor has relied upon

following decisions:

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i) Dineshkumar Becharbhai Gameti and another Vs. State of
Gujarat, reported in 1999 (1) GLR 18;

ii) Ramilaben Hasmukhbhai Khristi W/o. Hasmukhbhai Ashabhai
Vs. State of Gujarat, reported in 2001 (1) GLR 783;

iii) Bachubhai Valjibhai Vs. State of Gujarat, reported in 2001 (2)
GLR 1504.

5. Regard being had to the submissions made by the learned advocates for

the parties and on going through the evidence on record vis-a-vis the

findings recorded by the learned Sessions Judge, it appears that while

acquitting all the accused from the charge of offences punishable under

Sections 306 and 304(B) of the IPC and Section 4 of the Dowry

Prohibition Act, they have been convicted for the offence punishable

under Section 498-A of the IPC for which, RI for 03 years with fine

has been imposed upon original accused Nos. 1 to 4, whereas, the

original accused Nos. 5 and 6 have been imposed RI for 01 year, with

fine with default clause.

6. I have examined the matter carefully and gone through the evidence on

record. I have also appreciated, re-appreciated and re-evaluated the

evidence on the touchstone of latest decisions of the Hon’ble Apex

Court. The accused have been convicted for the offence punishable

under Section 498-A of the IPC. Section 498-A IPC reads as under:

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” 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; 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.]”

6.1 The explanation to above section includes cruelty as any wilful conduct

on the part of the husband or relative of husband of a woman, which 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. That such cruelty or harassment meted out to her should be

persistent and should not be stale or an aberration of the past. It is

settled by a catena of decisions that mental cruelty can cause even

more serious injury than the physical harm and create in the mind of

the injured appellant such apprehension as is contemplated in the

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section. It is to be determined on whole facts of the case and the

matrimonial relations between the spouses. To amount to cruelty, there

must be such wilful treatment of the party which caused suffering in

body or mind either as an actual fact or by way of apprehension in such

a manner as to render the continued living together of spouses harmful

or injurious having regard to the circumstances of the case. The

cruelty may be mental or physical, intentional or unintentional. There

may be cases where the conduct complained of itself is bad enough and

per se unlawful or illegal. Then the impact or the injurious effect on the

other spouse need not be enquired into or considered. In such cases, the

cruelty will be established if the conduct itself is proved or admitted.

6.2 If the facts of the case on hand are gone into, after the marriage of the

deceased with the original accused No. 3, the accused used to demand

money from the deceased for the business of bakery for which, they

used to impart physical and mental torture upon the deceased and when

it became unbearable, the deceased committed suicide by setting

herself ablaze. To prove such factum, the deceased is the best person

and accordingly, I have gone through all three DDs of the deceased

recorded during her survival. If the DD at Ex. 31 dated 09/04/1998,

which is the date of incident, is referred, the deceased has stated before

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the Executive Magistrate that, ” today at 11/15 in the morning, I was

cooking by Ashok stove at that time on account of sudden burst in the

stove, I sustained burn injuries on my whole body. At that time, I was

alone at home. All had gone out of home. I stay separate in a room

with my husband since last 8-10 days. We have gone to stay separate

on account of petulances of my mother-in-law. But, today morning, at

the time of incident, nobody was present at the home and on account of

primus burst, she has burnt.” Thus, if this statement is considered,

which is recorded at the first instance by the Executive Magistrate, it is

clearly stated by the deceased herself that she had sustained burn

injuries on account of primus burst and nothing else has been stated by

her. She has not stated anything about the harassment and cruelty

being meted out to her and/or demand of dowry by the accused. In this

regard, the prosecution has examined the Executive Magistrate at Ex.

29. On going through the deposition of Babubhai Amratlal Koshti, the

Executive Magistrate, (EX. 29), he has clearly stated in his

examination-in-chief that the deceased was completely conscious while

recording her DD. Nobody was present there and he had recorded the

details as stated by the deceased. In his cross-examination, this witness

has stated that after recording the statement, he had read over the same

to the deceased, which was admitted by the deceased.

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6.3 Now, if the second DD at Ex. 43, is referred, it is recorded on the next

day i.e. 10/04/1998. It is the statement recorded by the investigating

officer of the deceased. In this statement/DD, the deceased has stated

that the facts narrated by her in her previous statement recorded on

09/04/1998 were not true. It has been further stated by her that on the

day before yesterday, she had exchange of words with her brother-in-

law (diyar) and the mother-in-law as to cooking due to which, she was

beaten. She has further stated that, on the previous day, she had to go

to her parental home for having meal and her husband had told her to

go if she wanted and he will keep her son with him. She has also

stated that she had given false statement in V.S. (hospital) on the

previous day on account of threat of her parents-in-law and the

brothers in-law. Thus, if this statement is considered, she has retracted

from her earlier statement, which was recorded at the first instance by

the Executive Magistrate and has made improvement. However, two

aspects emerge from this statement viz. she has not named her husband

in her later (this one) statement and the second is, she has stated that on

account of some altercation with her in-laws, she had taken such a step.

6.4 The next is the DD/statement at Ex. 39 in which, she has again made

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improvement and stated that her parents-in-law and the brothers in-law

used to inflict mental cruelty upon her and hence, she has taken such a

step. In this statement, she has further improved that all were present

downstairs, however, nobody tried to save her. Thus, if we compare all

these statements, there are material improvements in the same and may

be filled with influence. At one place she states about accidental burn

injuries, whereas, at another place, she talks about harassment and

cruelty by her in-laws leading her to commit suicide, which is doubtful.

If the evidence on record is seen, there is nothing on record to show

that demand of dowry was made in actual and for that she was being

subjected to cruelty and such harassment and cruelty were persistent in

nature, which is required under the law. As per complainant, the

deceased had talks about the same with her mother, however, the

mother of the deceased has not been examined by the prosecution. If

for the sake of argument the case of the prosecution is believed that the

accused were demanding money from the deceased for the business of

bakery, the question arises, as to whether only demand can be termed

as cruelty. Besides, such cruelty was such grave and persistent that it

drove the deceased to commit suicide.

6.5 In the considered, opinion of the Court the answer to aforesaid query is

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‘No’. There is nothing on record to show that the deceased was

subjected to cruelty as she herself deviates from her versions recorded

thrice before the different authorities. Besides, if such a cruelty and/or

harassment was consistent in nature and was known to her parents,

they would have definitely taken some steps in this regard, however,

the evidence on record shows nothing of such kind. Besides, no wise

person could go so far for such amount of treatment. In other words,

from the evidence on record, there appears no case that the cruelty was

of such a nature that could have driven the deceased to take such a

drastic step. Accordingly, the case of the prosecution becomes pale

and there seems other possibility in favour of the accused also.

6.6 I have gone through the different pronouncements relied upon by both

the sides. The learned advocate for the appellants has placed reliance

on the case of Sharad Birdichand Sarda (supra), in which the Hon’ble

Apex Court has observed in para 162 that, ” We then pass on to another

important point which seems to have been completely missed by the

High Court. It is well settled that where on the evidence two

possibilities are available or open, one which goes in favour of the

prosecution and the other which benefits an accused, the accused

is undoubtedly entitled to the benefit of doubt” . In the case of

Vipin Jaiswal (A-1) (supra), the Hon’ble Apex Court has observed in

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para 9 that, ” … In our view, both the trial Court and the High

Court failed to appreciate that the demand, if at all made by the

appellant on the deceased for purchasing a computer to start a

business six months after the marriage, was not in connection

with the marriage and was not really a ” dowry demand” within

the meaning of Section 2 of the Dowry Prohibition Act, 1961″ .

Further, in case of Rohtash (supra), the Hon’ble Apex Court has

observed that, ” Demand by appellant husband for establishment

of his tailoring business; even if such demand was there, it may

not necessarily be a demand of dowry. Moreover, whether for

that demand, ill-treatment given by appellant to his wife was so

grave that she had been driven to the extent that she had to

commit suicide, not proved” . Further, in the case of P. Khaja

Hussain (supra), the Hon’ble Apex Court has observed as under:

” 5. There is no explanation as to why the second dying
declaration was recorded by the Head Constable of police
shortly after such a statement was recorded when the
dying declaration had already been recorded by the
Magistrate.

6. It is not a case where the variation between the two
dying declarations is trivial in nature. The scenario was
described in a substantially different manner. The High
Court noted that the improvements were made to
rationalise with the injuries sustained by the deceased.

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7. Conclusions of the High Court do not have any infirmity
which warrant any interference. The appeal stands dismissed.”

6.7 The next decision relied upon by the learned advocate for the

appellants is in the case of Gopal (supra), wherein, the Hon’ble Apex

Court has observed that, ” considering the nature of inconsistencies

which were certainly material, the dying declaration becomes

doubtful, hence, conviction thereon unsustainable” . Further, in the

case of T. K. Reddy (supra), the Hon’ble Apex Court has held that, ” it

was not, therefore, open to the courts below to surmise on facts and

draw an inference that deceased made the statement before police in

the hope of her survival and to save her husband, as the same had no

foundation considering the whole evidence. There was considerable

force in the submission of the appellant that there was ample

opportunity for others to influence the mind of the deceased and

the statement made before the Magistrate was contrary to the

facts available on record. Therefore, conviction under S. 302

cannot be sustained” .

6.8 Further, in the case of Kashi Vishwanath (supra), the Hon’ble Apex

Court has observed as under:

” 15. In Mehiboobsab Abbasabi Nadaf v. State of Karnataka

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having noticed multiple dying declarations this Court held:
(SCC p. 115, para 7):

” 7. Conviction can indisputably be based on a
dying declaration. But, before it can be acted upon,
the same must be held to have been rendered
voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full
reliance thereupon. In this case, the deceased herself
had taken contradictory and inconsistent stand in
different dying declarations. They, therefore, should
not be accepted on their face value. Caution, in this
behalf, is required to be applied.”

6.9 Moreover, in the case of Subhashbhai Chandubhai Patel (supra), this

Court has observed as under:

” 25. Now, coming to charge under Section 498-A of the
IPC i.e. cruelty, it requires to be appreciated that it speaks
of cruelty by husband or the relatives of the husband. The
first part of this Section provides for the punishment for
the person, namely the husband or the relative of the
husband of a woman who subjects the woman to cruelty.
Explanation makes it clear as to what meaning would be
given to the term ‘cruelty’. Explanation (a) says that any
willful conduct which is of such a nature as is likely to
drive the woman to commit the suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman would amount to cruelty.
Explanation (b) says that cruelty would mean the
harassment of the woman 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.

26. It is settled principles of law so far as Section 498-A
IPC is concerned that to constitute an offence of cruelty as

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explained under Section 498-A of IPC, willful conduct
which is of such a nature as is likely to drive the woman to
commit the suicide should be cogently established to hold
the accused guilty of the said offence. In the instant case,
there was no demand for dowry nor abetment of suicide
nor cruelty to the deceased is established. All the witnesses
have deposed on the strength of information which the
deceased occasionally had given to them. Such a statement
is not admissible in the evidence to prove the offence
punishable under Section 498-A of the IPC as such
evidence is to be treated as hear-say evidence.

27. The law so far as Section 498-A IPC is concerned, needs
to be examined considering the following two decisions of
the Supreme Court :-

(i) Gananath Patnayak Vs. State of Orissa ? 2002
SCC (Criminal) 461.

(ii) Inderpal Vs. State of M.P. – 2002 Cri.L.J.926.

28. The ratio of both the decisions is to the effect that all
the statements made by the deceased to her family
members regarding the alleged harassment and cruelty
meted towards her would fall within the purview of
hearsay evidence. It is an admitted fact that none of the
witnesses examined by the prosecution have said that they
have with their eyes seen the accused assaulting the
deceased or treating her with cruelty. Such a statement is
not admissible in evidence for the offence punishable under
Section 498-A of IPC and has to be termed as being only a
hearsay evidence.

29. This court in case of INDRASINGH M. RAOL VS.

STATE OF GUJARAT, reported in 1999(3) GLR p.2536
has explained the concept of cruelty within the meaning of
the definition as provided under Section 498-A of IPC. The
ratio of this decision is that every act of cruelty or

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harassment is not made a crime under Section 498-A. The
prosecution has to establish that the cruelty or harassment
was unabetted, incessant and persistent and being grave in
nature unbearable and the same was with the intention to
force the woman to commit suicide or to fulfill illegal
demand of dowry of the husband or her in-laws. As held by
this Court, Section 498-A will not come into play in every
case of harassment and/or cruelty. Reasonable nexus
between cruelty and suicide must be established. It should,
therefore, be shown that the incessant harassment or
cruelty was with a view to force the wife to end her life or
fulfill illegal demands of her husband or in-laws, and was
not matrimonial cruelty, namely, usual wear and tear of
matrimonial life.”

6.10 Coming back to the case on hand, the fact remains that the husband

and the wife had started living separately in the same house for last

some days. There appears no direct allegation against the husband, the

original accused No. 3. It may be true that there was demand of money

and even if the same is proved, I am of the considered opinion that

cruelty, as envisaged under the first limb of Section 498A, IPC would

not get attracted. It would be difficult to hold that the mental cruelty

was of such a degree that it would drive the wife to commit suicide.

Mere demand, even if proved, would be illegal, but it would take a

different character if the prosecution brings some evidence on record to

show that the accused had conducted in such a manner to drive the

wife to commit suicide. In the instant case, the accused may have

demanded money, but in the absence of some other acceptable

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evidence on record that can establish such high degree of mental

cruelty, the Explanation to Section 498A, which includes cruelty to

drive a woman to commit suicide, would not be attracted. The

evidence brought on record against them with regard to cruelty is

absolutely sketchy and not convincing. It has been alleged that the

deceased was asked to bring money for the business of bakery and for

that her parents-in-law and the brothers-in-law used to harass her. The

said fact has really not been established. The allegations made against

the appellants – accused appear to be vague and inconsistent. The

mother of the deceased to whom the deceased used to share all the so-

called traumatic treatments, has not been examined and on the basis of

the evidence available on record, it is difficult to sustain the conviction

under Sections 498-A of the IPC. Moreover, the trial Court has not

believed the charge for the offence punishable under Sections 306 and

304(B) of the IPC and Section 4 of the Dowry Prohibition Act against

the present appellants – accused.

6.11 I have also gone through the decisions relied upon by the learned

Additional Public Prosecutor. There cannot be any dispute as to the

ratio laid down in the same, but in the facts and circumstances of the

case, the same are not applicable to the case on hand.

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6.12 In aforesaid view of the matter, I am inclined to hold that the

prosecution has failed to prove its case against the present appellants –

accused beyond reasonable doubt and accordingly, Criminal Appeal

No. 974 of 2002 filed by the appellants – original accused deserves to

be allowed and the appellants – accused are required to be given

benefit of doubt and Criminal Appeal No. 141 of 2003 filed by the

State for enhancement of sentence requires to be dismissed.

7. In view of the aforesaid discussion, Criminal Appeal No. 974 of 2002,

filed by the appellants – original accused succeeds qua original accused

Nos. 1 to 5 as the present appeals have been abated qua original

accused No. 6 as expired. The impugned judgment and order dated

29/10/2002 passed by the learned Sessions Judge, Court No. 1,

Ahmedabad in Sessions Case No. 384 of 2000 is hereby set aside and

the appellant Nos. 1 to 5 – original accused Nos. 1 to 5 are acquitted

from the charge for which they are convicted and sentenced by giving

benefit of doubt. In view of benefit of doubt is given, the fine paid by

them shall not be refunded. The appellant Nos. 1 to 5 – original

accused are reported to be on bail. They are not required to surrender

to custody except they are required so in any other case. Their bail

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bonds shall stand cancelled. The Criminal Appeal No. 141 of 2003,

filed by the State, is hereby dismissed. Registry to return the RP, if

received, to the trial Court.

[ P. P. Bhatt, J. ]
hiren

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