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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