Gujarat High Court
Mohammed Yusuf Allauddin Ansari & 5 vs State Of ... on 13 October, 2017
Author: P.P.Bhatt
Bench: P.P.Bhatt
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
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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?
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MOHAMMED YUSUF ALLAUDDIN ANSARI & 5....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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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
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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 Page 1 of 28 HC-NIC Page 1 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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, Page 2 of 28 HC-NIC Page 2 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 3 of 28 HC-NIC Page 3 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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. Page 4 of 28 HC-NIC Page 4 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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. Page 5 of 28 HC-NIC Page 5 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 6 of 28 HC-NIC Page 6 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 7 of 28 HC-NIC Page 7 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 8 of 28 HC-NIC Page 8 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 9 of 28 HC-NIC Page 9 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 10 of 28 HC-NIC Page 10 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 11 of 28 HC-NIC Page 11 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 12 of 28 HC-NIC Page 12 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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: Page 14 of 28
HC-NIC Page 14 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT " 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 Page 15 of 28 HC-NIC Page 15 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 16 of 28 HC-NIC Page 16 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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. Page 17 of 28 HC-NIC Page 17 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 18 of 28 HC-NIC Page 18 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 19 of 28 HC-NIC Page 19 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT '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 Page 20 of 28 HC-NIC Page 20 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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.Page 21 of 28
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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 Page 22 of 28 HC-NIC Page 22 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 23 of 28 HC-NIC Page 23 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 24 of 28 HC-NIC Page 24 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 25 of 28 HC-NIC Page 25 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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. Page 26 of 28 HC-NIC Page 26 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT 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 Page 27 of 28 HC-NIC Page 27 of 28 Created On Sat Oct 14 00:44:18 IST 2017 R/CR.A/974/2002 CAV JUDGMENT bonds shall stand cancelled. The Criminal Appeal No. 141 of 2003, filed by the State, is hereby dismissed. Registry to return the R&P, if received, to the trial Court.
[ P. P. Bhatt, J. ] hiren Page 28 of 28 HC-NIC Page 28 of 28 Created On Sat Oct 14 00:44:18 IST 2017