Gujarat High Court
Hitesh Ramniklal Joshi & 2 vs State Of ... on 23 February, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/101/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 101 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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HITESH RAMNIKLAL JOSHI & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Appellant(s) No. 1 - 3
MR HK SONI APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 23/02/2015
ORAL JUDGMENT
1. The present appeal, under section 378(1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 21.11.2009 passed by the learned Page 1 of 25 R/CR.A/101/2010 JUDGMENT Additional Sessions Judge, Fast Track Court, Veraval, Camp at Una, in Sessions Case No.9 of 2007, whereby the accused persons have been convicted and sentenced for the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code. Learned Sessions Judge ordered the appellants to undergo three years rigorous imprisonment and fine of Rs.5000/-, in default, further simple imprisonment of six months for the offences punishable under Sections 498(A) and 114 of the Indian Penal Code. For the offences punishable under Sections 306 and 114 of the Indian Penal Code, the appellants were ordered to undergo 10 years rigorous imprisonment and fine of Rs.12000/- each, in default, further simple imprisonment of one year. The appellants were acquitted for offences punishable under Section 304(B) read with Section 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The appellants have been given set off for the undergone period. All the sentences shall run concurrently. The appellant No.1 has been already released from the jail, as he completed his sentence imposed by the learned Sessions Judge.
2. The brief facts of the prosecution case are as under:
2.1 The niece of the complainant namely Nimishaben married with accused No.1 - appellant No.1 Hitesh before five Page 2 of 25 R/CR.A/101/2010 JUDGMENT years from the incident. Present appellant Nos.2 and 3 are mother-in-law and sister-in-law of the said Nimishaben. After marriage, said Nimishaben was residing with the appellants in joint family at Kodinar and initially, their marriage life was going on smoothly for a period of one year. Thereafter, the appellants started torture by saying that Nimishaben did not work properly and she was not liked by them and she did not bring any dowry. Said Nimishaben told the same about the harassment caused by the appellants to the complainant. The complainant also persuaded Nimishaben and sent her to matrimonial home. As per the case of prosecution, before two years, said Nimishaben was driven out from her matrimonial home and therefore, she stayed at Kanta Stri Vikas Gruh at Rajkot. The complainant met her at there, where said Nimishaben told him that the appellants told her to bring Rs.20000/- and thereafter, the maternal uncle of Nimishaben sent her to Kodinar after making compromise. Thereafter, after a month, said Nimishaben was driven out by the appellants from her matrimonial home and therefore, one case was registered before Amreli Nari Suraksha Gruh. Thereafter, after two months, the father-in-law and husband of Nimishaben brought her at Kodinar after making settlement. As per the case of the prosecution, after a month, said Nimishaben was Page 3 of 25 R/CR.A/101/2010 JUDGMENT driven out by beating her from her matrimonial home and therefore, Nimishaben filed complaint before Babra Police Station and maintenance application was filed before Babra Court. Thereafter, the husband of Nimishaben made settlement with her in the Court and brought her at Kodinar.
Thereafter, again after one month, the appellants had driven out the appellant by beating and therefore, Nimishaben filed case Amreli Mahila Vikas Gruh, where her maintenance was fixed, but mainteance was not paid by the appellants. As per the case of the prosecution, the father of said Nimishaben was not alive and her mother was suffering from mental disease and therefore, she went to Gondal Bala Ashram, where she stayed upto 8 days and thereafter, she went to her matrimonial home at Kodinar with a view to see her minor daughter namely Amiben. As per the case of the prosecution case, on 12.11.2006, at about 11:30 hrs. when the complainant was going to his service place, he came to know that Nimishaben consumed poison. Thereafter, the daughter of complainant made phone to the complainant about the death of Nimishaben and at that time, the complainant was at service. Therefore, the complainant immediately rushed to the Government Hospital at Veraval, where he found dead body of Nimishaben in Post Mortum Room. Therefore, the complainant Page 4 of 25 R/CR.A/101/2010 JUDGMENT filed complaint being I C.R. No.172 of 2006 before the Kodinar Police Station against the appellants. Thereafter, further investigation was carried out and drawn the panchnama - scene of offence. The statements of witnesses were recorded and accused were arrested. The charge-sheet was filed against the accused. Ld. Judicial Magistrate First Class, Kodinar, has committed the said case to the Court of Sessions, under Section 209 of the Code of Criminal Procedure. Then statements were recorded by the learned Sessions Judge and Sessions Case was listed for evidence.
2.3 To prove the case against the present accused, the prosecution has examined witnesses Sr. No. Name of the witness Exhibit P.W. - 1 Rajeshkumar Jayantilal Jani, Panch 49 witness P.W. - 2 Balubhai Karsanbhai Chudasama, Panch 51 witness P.W. - 3 Dr. Purviben Shitalgiri 56 P.W. - 4 Dr. Datratrey Balvantpari Goswami 62 P.W. - 5 Dr. Brijeshwarising 66 P.W. - 6 Rameshbhai Jaganlal Pandya, 69 complainant P.W. - 7 Kiranben Rameshbhai Pandya 77 P.W. - 8 Ravibhai Virbhanbhai Dodiya 80 P.W. - 9 Sandipbhai Bharatbhai Pandya 82 P.W. - 10 Savitaben Varjangbhai 84 P.W. - 11 Ranjanben Chhotalal Mehta 91 P.W. - 12 Hirenkumar Kanabhai Gohil 95 Page 5 of 25 R/CR.A/101/2010 JUDGMENT P.W. - 13 Hasumatiben Vishnuray Joshi 97 P.W. - 14 Gorabhai Parbatbhai 101 P.W. -15 Hathisinh Mansinh Solanki 104 P.W. - 16 Jitendra Gordhanbhai Madhak 108 P.W. - 17 Sharadchandra Champaklal Pandya 117 P.W. - 18 Bhanabhai Devabhai Sosa 125 P.W. - 19 Harshaben Manubhai Desai 135 The prosecution has produced following documentary evidence :
Sr. No. Particulars Exhibit 1 Investigation letter 28 2 Wireless Message 29 3 Panchnama of scene 50 4 P.M. note 57 5 Police Yadi 58 6 Medical certificate 63 and 67 7 Complaint 72 8 Application 98 9 Compromise register 99 10 FIR 102 and 109 11 Xerox of station diary 103 12 Police Yadi 118 13 Dying declaration 119 14 Mobile report of spot observation 126 15 Report to register the complaint 127 16 Ravangi Nondh for Muddamal 129 17 Record of case file of 136 organization
The defence side has examined following witness Sr. No. Name of the witness Exhibit D.W. - 1 Kishorbhai Kantibhai Mehta 144 Page 6 of 25 R/CR.A/101/2010 JUDGMENT D.W. - 2 Dilubha Albha Dayatar 146 The defence has also produced dying declaration at Exhibit 147.
2.4 The statement under Section 313 of the Code of Criminal Procedure were recorded, wherein the accused stated that the false compliant is filed against them and they have been wrongly implicated in the alleged offence. They have also stated that the deceased consumed poison by mistake and the complainant filed wrong complaint by keeping grudge against them.
2.5 At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted and sentenced the respondents as stated above.
2.6 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the concerned trial Court, the appellants preferred the present appeal.
3. Learned advocate for the appellants fairly submitted that the appellant No.1 is already released from the jail, therefore, present appeal is not pressed qua the appellant No.1. So far as appellant Nos.2 and 3 are concerned, he submitted that they are innocent and they are mother-in-law and sister-in-law of the deceased.
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R/CR.A/101/2010 JUDGMENT
4. Learned advocate Mr. Gondaliya appearing on behalf of the appellants submitted that the learned Sessions Judge held guilty the appellants on wrong basis and without appreciating the evidence properly, the learned Sessions Judge imposed sentence upon the appellants. He also submitted that the evidence of the witnesses examined by the prosecution are interested witnesses and they are not reliable and trustworthy. He also submitted that there are material contradictions between the evidence of the witnesses and documents produced on record. He also submitted that even in the dying declaration, there was no allegation against the accused. Even before the Doctor, the deceased did not make any allegation against the accused. He also submitted that the deceased was in habit of leaving her matrimonial home and used to reside at Nari Vikas Gruh. He also submitted that there was no any independent evidence in support of the case of the prosecution produced, though there were number of independent witnesses were available. He read the oral evidence of P.W.6 Rameshbhai Jaganlal Pandya and submitted that said witness stated that he is uncle of the deceased and father of the deceased was died and mother and younger brother of the deceased is suffering from mental disease. This witness also stated in his evidence that the father of the appellant No.1 and Page 8 of 25 R/CR.A/101/2010 JUDGMENT father-in-law of the deceased was serving as PSI at Ahmedabad. During the marriage span, the deceased gave birth one daughter namely Amiben, who was five years old at the time of incident. Learned advocate further submitted that this witness admitted in his cross-examination that the appellants were harassing mentally and physically the deceased by raising demand of dowry. Therefore, due to harassment caused by the appellants, the deceased consumed poison and died, but the real fact is as such that the deceased was also suffering from mental disease and by mistake, she consumed poison and died. Here the harassment or cruelty on the part of the appellants are not proved by any of the evidence of the witnesses examined by the prosecution during trial. Learned advocate submitted that looking to the complaint which was lodged by the deceased herself on 12.11.2006, clearly established that the deceased consumed poisonous tablet due to mistake and immediately, the appellant No.1 took her to the hospital for medical treatment. Even the complaint reveals that the deceased was not harassed by the appellants. Therefore, learned advocate submitted that the deceased herself stated that due to mistake, she consumed poison, then it would be presumed that the benefits of doubt is required to be considered in favour of the appellants. He also submitted Page 9 of 25 R/CR.A/101/2010 JUDGMENT that looking to the oral evidence of P.W. 7 - Kiranben Rameshbhai Pandya, who is wife of the complainant, P.W.9 - Sandipbhai Bharatbhai Pandya, who is brother of the deceased and neighbour, all are interested witnesses, and naturally they supported the version of the complainant. Therefore, it cannot be said that the appellants instigated the deceased to commit suicide. He also submitted that the main ingredients of instigation, abetment and provocation are not proved at all by the prosecution. He further submitted that as per the provisions of Section 113(A) of the Evidence Act, the abetment on the part of the appellants are not proved. He also stated that looking to the oral evidence P.W.3 - Dr. Purviben Shitalgiri, it appears that the deceased was suffering mental disease like schizophrenia and therefore, she consumed such poison and there is possibility of depression. This witness also stated that the said disease is inheritable and therefore, it is clearly established that the mother of the diseased was suffering such disease and therefore, the deceased got the same from her mother. Learned advocate further submitted that from the evidence of the witnesses, nothing found about the cruelty meted out by the appellant upon the deceased except the interested witnesses and learned Sessions Judge has wrongly relied upon the versions of the interested witnesses. Learned Page 10 of 25 R/CR.A/101/2010 JUDGMENT advocate Mr. Gondaliya further submitted that from the dying declaration of the deceased recorded at Exhibit 119, it clearly appears that the deceased consumed poisonous tables, which was kept for the protection of the wheat. The dying declaration further reveals that said poison was consumed by her own. She further stated in dying declaration that there was no problem from the appellants to her. Learned advocate further submitted that when said dying declaration was recorded, the deceased was fully conscious and therefore, it is established that no cruelty was meted out by the appellants upon the deceased. He also drew the attention to the documentary evidence complaint, panchnama, inquest panchnama, dying declaration etc. and submitted that no corroboration is made to prove the case against the appellants and there are several contradictions in the evidence of the witnesses. Even in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellants sufficiently made their attempt about wrong their implication in the offence, but the learned Sessions has not considered the same. He also submitted that from the defence side, D.W.1 Kishorbhai Kantilal Mehta examined by the prosecution and said witness also stated that there was no any harassment by the appellants to the deceased and due to mistake, the deceased consumed poison. Page 11 of 25
R/CR.A/101/2010 JUDGMENT He drew the attention of this Court to the evidence of D.W. 2 Dilubha Albha Dayatar and submitted that this witness also stated that the poisonous tablets with water were in the glass of the water and deceased drunk the same as drinking water due to mistake. He submitted that from the overall evidence, it can be said that the prosecution could not establish the case against the appellants. He, therefore, submitted that the impugned judgment and order is required to be quashed and set aside by allowing present appeal and appellants are required to be acquitted of the charges as levelled against them.
5. Per contra, learned advocate learned APP Mr. Soni appearing for the respondent State, supported the impugned judgment and order and submitted that learned Sessions Judge after appreciating the evidence on record and considering the submissions made by the parties, passed the impugned judgment and order of conviction and sentence and therefore, no interference is required by this Court. He submitted that the ingredients of Section 498(A) or even of Section 306 and 304(B) of the Indian Penal Code are established against the accused and in absence of any cogent proof, the learned Sessions Judge has rightly considered to convict the accused for the charges levelled against them. Learned APP further Page 12 of 25 R/CR.A/101/2010 JUDGMENT submitted that from the evidence of the witnesses, it is clearly established that the appellants were causing harassment mentally and physically to the deceased and even the deceased was driven out by beating on several occasions by the appellants and therefore, it clearly established that due to harassment on issue of dowry, the deceased committed suicide. He also submitted that even from the provisions of Section 113(A) of the Evidence Act, the cruelty is sufficiently proved against the accused, which is covered under the definition of Section 498(A) of the Indian Penal Code. He also submitted that the main ingredients of offence are allegedly proved by the prosecution. He read the impugned judgment and order passed by the learned Sessions Judge and submitted that after considering and appreciating the evidence on record, learned Sessions Judge has rightly held the appellants guilty and therefore, same is not required to be disturbed in any manner by this Court.
7. Perused the judgment and order as well as evidence produced on record and considered the submissions made by the learned advocates for the parties. It appears from the record that the marriage of the deceased and appellant No.1 was solemnized before five year from the incident. From the evidence of P.W.6 - Rameshbhai Jaganlal Pandya at Exhibit 69, Page 13 of 25 R/CR.A/101/2010 JUDGMENT it appears that out of wedlock, the deceased gave birth one female child namely Amiben, who was five years old at the time of incident. Said daughter was residing with the appellant Nos. 2 and 3 at that time. In his cross-examination, this witness stated that after the marriage, initially for a period one year, the marriage life was going smoothly and thereafter, the appellants started taunting the deceased for getting dowry. The appellants said the deceased that she was disliked by them and she did not bring dowry and ofently the appellants demanded money from the deceased. Thereafter, the deceased was driven out from her matrimonial home and therefore, she came at her parental home. Thereafter, the deceased was persuaded by her brothers and sent to her matrimonial home. The deceased was kept well for a period of one month by the appellants and then the appellants had beaten her and again, she was driven out from the home. Therefore, the deceased went to Kanta Stri Vikas Gruh at Rajkot and from there, a phone call received by this witness and therefore, this witness and other relatives went to meet the deceased at that said Vikas Gruh at Rajkot. At that time, the deceased told them about cruelty meted out by the appellants and the appellants told her to bring Rs.20000/- towards dowry, otherwise, does not come to home. This Page 14 of 25 R/CR.A/101/2010 JUDGMENT witness also admitted in cross-examination that the maternal uncle of the deceased intervened and after persuading her, sent to her matrimonial home. After a period of one month, the appellants started to cause harassment and sent to her at village Charkha and thereafter, the deceased filed case before Amreli Nari Suraksha, where the persons of two sides were called and compromise took place and family members of appellants brought the deceased to matrimonial home. Thereafter, after a period of one month, the appellants started to cause harassment to the deceased and therefore, the deceased went to Charkha village and filed complaint at Babra police station and also filed application for maintenance before the Babra Court against the appellants. After sometime, the compromise between the parties took place at Babra Court and the deceased was taken by the appellants at her matrimonial home. Again after a period of one month, the appellants started to harass the deceased and therefore, she again went to Charkha village and at that time, the father of deceased expired and therefore, the deceased went to Mahila Vikas Gruh at Amreli, where the maintenance was fixed, but the appellants had not paid maintenance amount to the deceased for a period of six months. This witness also admitted that the mother of the deceased was suffering from Page 15 of 25 R/CR.A/101/2010 JUDGMENT mental disease and said Amreli Vikas Gruh was not ready to keep further the deceased and therefore, deceased again went to Charkha village. Thereafter, after sometime, the deceased wanted to meet her daughter Amiben and therefore, he went to her matrimonial home, where the deceased was given harassment by the appellants. Therefore, the deceased took shelter at Balashram, Gondal for 15 days and then she again came at Charkha and on next day, she again went to her matrimonial home with a view to meet her daughter. This witness also stated that the deceased went to Kodinar, her matrimonial home before 8 days from the incident and this witness received phone about consumption of poison by the deceased. He went to the hospital where he found that the deceased was found in Post mortum room. This witness also admitted that due to torture on the part of the appellants, the deceased committed suicide. From the evidence of P.W.7 Kiranben, wife of Rameshbhai Pandya, examined at Exhibit 77, it appears that the deceased was harassed by the appellants on the issue of dowry and the deceased was beaten by the appellants. This witness also admitted same facts as narrated by P.W.6 in his evidence. Thereafter, the evidence of P.W.8 Ravibhai Virbhanbhai Dodiya examined at Exhibit 80, reveals that there was some problem with the deceased at her Page 16 of 25 R/CR.A/101/2010 JUDGMENT matrimonial home and oftenly the quarrel picked up between the deceased and the appellants. In his cross-examination, this witness also admitted about the harassment to the deceased by the appellants. The evidence of Sandipbhai Pandya at Exhibit 82, who is P.W.9 stated that the appellants were demanding dowry and therefore, the deceased was beaten and driven out from the matrimonial home oftenly and his cross- examination also reveals that the deceased was harassed by the appellant for the dowry. P.W.11 - Ranjanben Mehta examined at Exhibit 91, who is Gruhmata of Kanta Stri Vikas Gruh, before whom, the deceased stated about the harassment caused by the appellants and the deceased stayed there for sometime. Looking to the other evidence of witnesses, it is crystal clear that the deceased was harassed by the appellant on the issue of dowry. From the evidence of P.W.3 Dr. Purviben Shitalgiri examined at Exhibit 56, it appears that the deceased consumed aluminum phosphide poison and therefore, she died. It is also stated by this witness that the deceased was suffering from schizophrenia mental disease. This witness admitted in cross-examination that this disease cannot lead the person to commit suicide. Therefore, it is crystal clear that the deceased committed suicide because of said mental disease is not true and correct and it is not Page 17 of 25 R/CR.A/101/2010 JUDGMENT established by the defence. No doubt, it is believable that the deceased was suffering from the said mental disease as her mother was suffering from the same. Looking to the evidence of P.W.4 Dr. Datratrey Goswami examined at Exhibit 62, it appears that the deceased took the said poisonous tablets by mistake, but as to why she consumed the same and as to how she took the same, is not explained by the deceased before this witness. No doubt, she was conscious while recording the dying declaration by the Executive Magistrate. I have also perused the evidence of P.W. 5 Dr. Brijeshwarising and other witnesses examined by the prosecution. So far as the dying declaration is concerned, it appears that the deceased gave her dying declaration in the presence of her in-laws and at that time, her parents or other family members were not present. It is therefore, presumed that looking to the interest of her minor daughter, she gave such kind of dying declaration. In the complaint which was given by the deceased herself, it appears that there is no allegations of harassment on the part of the appellants, but, looking to the minor daughter's future, it would be possible for giving such kind of complaint. I have minutely perused the other documentary evidence, like panchnama, P.M. Note, Medical certificate, medical papers, compromise register etc. From the evidence and cross- Page 18 of 25
R/CR.A/101/2010 JUDGMENT examination of D.W. 1 Kishorbhai Kantibhai Mehta examined at Exhibit 144, who is material uncle of the accused, it appears that this witness has not stated anywhere that the appellants were causing harassment to the deceased and it is also not clear from the evidence that there was demand dowry. D.W. 2 Dilubha Albha Dayatar examined at Exhibit 146 stated that the deceased consumed poison by mistake, but due to mental and physical torture by the appellants, the deceased consumed poison, is not stated by this witness. Therefore, both these defence witnesses are not helpful to prove the case in favour of the accused.
8. From the perusal of the case, it appears that the accused had harassed the deceased after a year from the marriage. The behavioral psychology of the accused to the opposite side can result into negativity. The marriage span was round about 5 years. This behaviour of the accused shows that the there was tremendous provocation on the part of the accused which led the deceased to commit suicide. Cruelty means unprovoked conduct towards one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. Here in this case, the accused had not committed only mental cruelty, but he also meted out physical cruelty to the deceased and therefore, the Page 19 of 25 R/CR.A/101/2010 JUDGMENT deceased took decision to end her life by committing suicide. Said ingredients of provocation, instigation are covered by Section 306 of the Indian Penal Code. I have perused the provisions of Section 306 and 498-A as well as Section 107 of the Indian Penal Code and also perused provisions of Section 113-A of the Evidence Act and I have perused the difference of the provisions of laws. Here in the present case, the willful conduct on the part of the accused is proved, as the accused intentionally tortured the deceased by raising dowry demand, which was driven the wife to commit suicide. The cruelty is sufficiently proved against the accused as per the provisions of Section 498(A) of the Indian Penal Code. Therefore, it can be said that cruelty on the part of the accused is proved by the provisions of Section 113(A) of the Evidence Act, as abetment on the part of the accused led the wife to commit suicide. Abetment means a person abets the doing of a thing who instigates a person to do that thing.
9. In view of the above, I am of the opinion that the accused abetted the deceased to commit suicide and therefore, the accused are required to be convicted as they are not innocent persons. Looking to the facts of the case, during course of marriage span of 5 years, the accused did not take care of the deceased and on several occasions, she was beaten and driven Page 20 of 25 R/CR.A/101/2010 JUDGMENT out from the matrimonial home and offently the accused said that they did not want her and go to her parental home and take dowry.
10. I have taken into consideration the provisions of Section 498-A of the Indian Penal Code as well as Section 113-A of the Evidence Act, which are quoted as under :
"Section 498-A : Husband or relative of husband of a woman subject 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 find."
"Section 113-A - Presumption as to abetment of suicide by a married woman - When the question is whether the commission of suicide by a women 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 has subject her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
11. From the bare reading of Section 498-A of the Indian Penal Code, it is clear that if the husband or relative of the husband of a woman subject such woman to cruelty, they shall be liable for punishment mentioned therein. Moreover, the Page 21 of 25 R/CR.A/101/2010 JUDGMENT Explanation to Section 498-A Indian Penal Code defines "cruelty" for the purpose of Section 498-A IPC to mean (a) any will 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 concerning 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. A reading of Section 113-A of the Evidence Act, 1872 will show that for the purpose of Section 113-A, the "cruelty" shall have the same meaning as in Section 498A of Indian Penal Code. Hence, to convict a husband or any relative of the husband of a woman or to draw up presumption as to abetment of suicide by a married woman by her husband or any relative of her husband in case of suicide committed by a woman within a period of seven years from the date of her marriage there must first be evidence to establish that such husband or the relative of her husband committed cruelty of the nature described in clause (a) or (b) of the Explanation to Section 498A of the Indian Penal Code.
12. I have perused the meaning of cruelty and as per Oxford Dictionary, it defines "cruelty" as 'qualify of being cruel, Page 22 of 25 R/CR.A/101/2010 JUDGMENT disposition of inflicting suffering, delight in or indifference to another's pan, mercilessness, hard-heartedness. Even the definition of cruelty has been defined in the Black's Law Dictionary as "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health or mental health of the other spouse. Here in the present case, from time marriage, the deceased was neglected by the accused and the accused were not harassing the deceased, which shows cruel nature of the accused and it is very well covered in the meaning of cruelty.
13. In view of the above position and facts of the case, it is well established that the accused have instigated the deceased and thereby they abeted the deceased in committing the suicide. It is also established that from beginning of the marriage, the accused and his family members caused mental and physical cruelty and therefore, the deceased put in a critical condition and lastly, she consumed poison and ended her life at a very younger age. Looking to the attitude on the part of the appellants which is proved by other oral as well as documentary evidence, the version of the defence that the deceased herself ended her life by consuming poison due to mistake, is not believable, trustworthy and reliable. I have also Page 23 of 25 R/CR.A/101/2010 JUDGMENT perused the findings recorded by the learned Sessions Judge and it appears that the learned Sessions Judge has rightly observed by properly appreciating the evidence on record that the accused have committed offence as alleged and therefore, the accused have been held guilty for the alleged offence and rightly sentence for the same.
14. In view of the above observation, following order is passed:
This appeal is dismissed.
The Criminal Appeal is hereby dismissed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, Veraval Camp at Una in Special Case No.9 of 2007 is hereby confirmed.
Appellant Nos.2 and 3 are on bail and in view of dismissal of appeal, their bail bonds stand cancelled and they are directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue nonbailable warrant against the appellants - accused to effect their arrest. So far as appellant No.1 is concerned, his bail bond stands discharged, as he is already released from the jail on completing his sentence. R & P to be sent back to the trial Court, forthwith."
(Z.K.SAIYED, J.)
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YNVYAS
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