Gujarat High Court
Kantilal vs State on 8 February, 2011
Gujarat High Court Case Information System
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CR.A/294/1994 36/ 36 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 294 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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KANTILAL
MARTAJI PANDOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance
:
MR KB ANANDJIWALA for
Appellant(s) : 1,
MR PD BHATE APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 03/09/2007
ORAL
JUDGMENT
1. The Present appeal under Section 374 read with Section 386 of Criminal Procedure Code. The appellant ? Original accused No.1 of Sessions Case No.59 of 1992 tried and decided by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar, has challenged the legality and validity of the conviction and sentence dated 10.2.1994.
2. One co-accused - Laxmiben Kantinal, according to the prosecution, as the first wife of the present appellant. Learned trial Judge acquitted the co-accused - Laxmiben. So, the State had preferred appeal against order of acquittal being Criminal Appeal No.381 of 1994, but this Court refused to grant leave to appeal and the appeal thus has been dismissed against that accused by this Court.
3. The learned trial Judge has imposed S.I. of one year to the appellant ? accused for the offence punishable under Section 498 (A) and of two year for the offence punishable under Section 306 of Indian Penal Code. The amount of fine imposed is Rs.100/- for each offence. The quantum of punishment imposed by the learned trial Judge being too lenient and inadequate, the State had therefore, challenged the order of the punishment on its adequacy and prayed for enhancement for the period of imprisonment by way of appeal under Section 377 of the Criminal Procedure Code. The appeal under Section 377 was registered as Criminal Appeal No.380 of 1994. The Court is informed by the learned advocate appearing for the appellant that this Court has dismissed the said appeal preferred by the State. In the order under challenge, it is ordered that both the sentences imposed shall run concurrently by the trial Court. In-default punishment imposed period-wise, for both the offences.
4. Mr. Anandjiwala, learned advocate has taken me through the basic case of the prosecution and the evidence led during the course of trial is an unnatural death and she has committed suicide. According to Mr. Anandjiwala, the defence of the case so far as the charge of offence punishable under Section 306 is concerned, the first set of submission of Mr. Anandjiwal is that the death may not be because of suicide committed by the deceased Amariben and it may be an accidental death, as such there was no serious reason for her to commit suicide. She had delivered a child in recent past and the child was about two months. Ultimately, the deceased was self sufficient serving as a teacher and competent to pull on the physically and financially the rest part of the life even with the child. So, it appears to be an accident and the learned trial Judge ought to have held that the prosecution has not satisfactorily proved the suicidal act of the deceased Amriben. Second set i.e. alternative submission of Mr. Anandjiwala is that considering the evidence as it is led by the prosecution, there is no iota of evidence under which it is possible to conclude and even infer reasonably that the accused has abated alleged in the alleged act of suicide committed by the deceased Amriben. The document Exhibit 10 relied on by the prosecution and accepted by the learned trial Judge is genuinely proved document. The inference of abatement ought not to have been thrown. On the contrary, the allegation made in document exhibit 10 is that the deceased was apprehended that she may be killed, it is neither case nor charged against the accused that the deceased was killed and she was thrown into the well from which her dead body was found. She was physically fit and it can be inferred reasonably that on account of some quarrel, a lady like Amriben, who was serving as a teacher would commit suicide. The prosecution, as per the settled legal position, was under the obligation to establish by leading convincing evidence and placing circumstantial evidence on record with certain act or omission of the accused, had led her to commit suicide and it was also required to be proved that such conduct of the accused had nexus with the act of committing suicide.
5. The Courts have hammered in number of decisions that the prosecution should establish satisfactorily that there must be a nexus between the act and omission of the accused in the act of suicide otherwise, it would be risky to infer mens ria. In some decisions, the Courts have considered the proximity of time between the act or omission of the accused, charge and actual act of suicide. The time of commission of the offence is also appears to be a time selected by the deceased herself. The accused may be in deep sleep and could not have thought that the deceased would commit suicide during the night hours.. So, the learned trial Judge ought to have given benefit of doubt to the accused.
6. Mr. Anandjiwala has drawn my attention to one decision in the case of State of Gujarat Vs. Bharatbhai Babulal Lad and others. reported in (2006) GLH 718. In this decision, the Division Bench of this Court after considering the number of decisions of Hon'ble Supreme Court, dismissed the acquittal appeal preferred by the State and upheld the acquittal of the accused, who was charged for the offence under Section 306.
7. It is submitted by Mr. Anandjiwala that the documents Exhibit 10 relied on by the learned trial Judge is most vulnerable document and is a very weak piece of evidence. The learned trial Judge has not considered the answers given by the hand-writing expert during the course of trial. Considering the language of the letter and mainly the title of the letter Exhibit 10, it becomes doubtful that this letter was written prior to the act of suicide. The letter, if the same is read as whole, gives an impression that it must have been concocted with a view to implicate the accused and his legally wedded wife into a serious offence. The learned trial Judge ought to have observed that the document Exhibit 10 is not a reliable piece of evidence as hand-writing in document Exhibit 10 are materially different. Different witnesses examined, have stated on oath that the hand-writing in document Exhibit 10 are not hand-writing of the deceased Amariben, then the learned trial Judge ought not to have believed the evidence of Principal of School and one another co-teacher serving with deceased Amariben examined by the prosecution. If the document Exhibit 10 is found not reliable, then the accused deserves acquittal from both these offences for which, he was charged. It is also submitted that if the document Exhibit 10 is believed to be genuine and hand-writing of the deceased, then the appellant ? accused ought not to have been linked with the offence punishable under Section 498 (A) because the prosecution has to prove that the accused was the husband of the deceased and to prove that aspect, the prosecution was supposed to lead evidence to show that the deceased Amariben was legally wedded wife to the accused. The explanation given by the accused under Section 313 of Cr.P.C. while explanation incriminating in evidence appears probably. Ultimately, the appellant ? accused and the deceased belonged to the Schedule Tribe and it is say of the accused that the deceased being educated and literal lady, was attracted to the accused, therefore, both of them were residing in the house as friends. Merely because the accused has accepted that the deceased conceived a child, when they were staying together in a house and he had accompanied her even in the hospital when she was to deliver a child would not confer the status of the husband within meaning of Section 498 (A) of Indian Penal Code.
8. In support of his arguments, Mr. Anandjiwal has placed reliance on one judgment in the case of Ramnarayan and others Vs. State of M.P., 1998 (3) Crime 147. The Madhaya Pradesh High Court was dealing with the legality and validity of the charge framed by the learned trial Judge and it was submitted that the accused could have been prosecuted with the offfence punishable under Section 498 (A) as the deceased was not a legally married woman to the accused. According to the fact of the cited decision, the deceased was second wife of the applicant ? accused No.2 and his first wife was alive. The deceased second wife had committed suicide by consuming poison and the applicant ? accused was charged for the offence punishable under Section 304B and 498 (A) of Indian Penal Code. According to Mr.Anandjiwala, the learned Judge of Madhaya Pradesh High Court has considered two decisions of the Hon'ble Supreme Court : One is case of Bhaurao AIR 1965 SC 1564 and another in the case of Yamunabai AIR 1998 SC 644. The Madhya Pradesh High Court held that the applicant ? accused cannot be said to be a husband of the deceased within meaning of Section 498 (A) of Indian Penal Code. The ratio laid down in this decision possible would help the accused.
9. Learned A.P.P. Mr. P.D. Bhate has placed his resistance to the submission made by Mr. Anandjiwala and according to Mr. Bhate, if the document Exhibit 10 is believed to be genuine document and is valid piece of evidence, then the finding of the guilt recorded by th learned trial Judge should be upheld. The learned trial Judge has assigned sound reasons from para 14 onwards of the judgment and it is not necessary for this Court to assign independent reason for confirming this judgment by adopting assigned reasons by the learned trial Judge. This Court should dismiss the appeal. There is no scope to believe that the death of the deceased may be an accidental death. There was no reason for the deceased to go to well at odd hours and that too without informing her husband or the appellant ? accused, who was very well present in the house, especially when a sucking child was very well in the house. The scene of offence - Panchnama on the contrary creates an impression that the deceased must have jumped into the well with the determination under an emotional over depressed state of mind. According to Mr. Bhate, the appellant ? accused is a person responsible for the state of the mind of deceased, because this was only person, who was present in the house, otherwise the deceased had no reason to commit suicide, especially when she was self sufficient being a Govt. servant. If she was afraid about her relation with the appellant accused, she was not conceived a child and/or delivered the child. The deceased must be determined lady and therefore, only she started residing with the appellant - accused. In such a situation, the death on account of the accident, it does not look probable and acceptable and with this background, if Exhibit 10 is read, it is clear that only harassment and torture of the accused had led her to the act of suicide. Alternative submission made by Mr. Bhate is that if the Court is of the view that there is no sufficient evidence to link the accused with the offence punishable under Section 306, then at least this Court should uphold and confirm the conviction recorded by the learned trial Judge for the offence punishable under Section 498 (A). According to Mr. Bhate, to prove the relationship between the accused and deceased as husband and wife, the learned trial Judge was supposed to consider the conduct of the parties and their day-to-day behaviour. Undisputedly, both were the Govt. servants serving as teachers. The mother of the deceased, who had been examined by the prosecution has proved that under which circumstances the deceased decided to stay with the accused. She has stated on oath that her daughter had married with the accused, but as per the caste customs, the accused was supposed to call the parents of the girl i.e. herself and her husband etc. but, till Amriben committed suicide. She has also stated that the deceased Amriben was not treated well by the accused. It is in her evidence that she had visited even the resident of the deceased, so that it is 0clear from the evidence that the deceased and the present appellant ? accused were living a life with harmony at least during the day when she committed suicide.
10. After investigation, the present appellant - accused as well as his first wife Laxmiben were chargesheeted and it is allegation that because of the conduct and behaviour of both these accused and mainly the accused No.1 was the cause of the commission of the suicide in recent past date of the incident, it is clear that the deceased was ill-treated. In the letter Exhibit 10 received in evidence and the contents thereof have been considered by the learned trial Judge and according to Mr. Bhate, learned A.P.P., this document is sufficient to prove the mental cruelty to its extreme. This letter proves that some civil marriage ceremony performed between the accused and the deceased at Himatnagar on 21.8.1990 and thereafter, she was led to financial exploitation. She was threatened to dire consequences of death. It is true that the letter Exhibit 10 itself is not a dying declaration as the deceased had expressed apprehension that she may be perhaps killed. The title of the letter is sufficient to infer that the deceased was apprehending a death either at the hands of the accused persons or at their instance. It is not the say of the prosecution that the deceased was killed or was pushed into a well forcibly against her wish, but the police was under obligation to investigate that why this educated economically self sufficient lady having infant child has committed suicide and this letter Exhibit 10 has resolved all these questions those were cropped up in the mind of persons, who had knowing the deceased, relatives of the deceased and the machinery under legal obligation to trace the truth. The mother of the deceased has substantially supported the case of the prosecution, but for the want of other social tie, it was not possible for her to unfold the details of the conduct of the accused towards the deceased. The evidence therefore, has been led before the learned trial Judge as it is and the version of the mother of the deceased examined, corroborates the contents of the letter received by the police. Initially, the incident was recorded as a accidental death and one of the arguments of Mr. Anandjiwala is that the deceased may have died accidentally and the death may not be suicidal death, but the say of Mr. Bhate, learned A.P.P. is that there was no reason for the deceased to go to a well at odd hours after midnight and during very early hours of the day leaving the accused with infant child behind. The well was not at that distance from the residence. chapples were found near the well. As per the say of the prosecution, on 26.3.1992, the accused No.2 Laxmiben and accused No.1- present appellant were also there in the house. The application dated 26.3.1992 was received by the police in envelope and for the application, the entry was made in the register of the police station. That entry No.64 of 1992 has been proved by P.W.10, P.S.I. Mr. R.A. Patel. The application was handed over to the Head-constable Mr. Pashabhai and it is say of the P.W.10 that this application must have been written before about a day or two. The application was received by the police on 26.3.1992. Thereafter, on 27.3.1992, the police was intimated by the appellants - accused about the incident. So, to resolve confusion, the police had ample exercise to find out whether application Exhibit 10 is the application genuinely written by the deceased Amariben, so this letter was sent to hand-writings expert and his finding is that the letter in question, a document Exhibit 10 was written by the person, who is author of undisputed writings, meaning thereby, the deceased Amariben. Undisputedly, the said handwritings have been recovered from the custody of the genuine person and school records etc. and the handwritings of deceased Amariben is undisputed document as well as handwritings of Exhibit 10 have been proved by the independent witnesses including P.W.1 - Timothibhai Daudbhai Damor Exhibit 9. He was Principal teacher of the school of village Bhetali and the deceased was serving in the school since last about 5 years. He was knowing the appellant accused also as a teacher serving in Primary school of Jesingpur and the distance of Jesingpur and Bhetali village is also come on record, that of 2 Kms. only. According to this witness, the primary school of Jesingpur is in the groups school of village Bhetali. This witness has proved the relation between the deceased and the appellant No.1 accused. He has also proved handwritings of the deceased Amariben including documents from the School Credit Society. He has stated on oath that he knows the signature of the deceased Amariben. The Muddamal, article No.8 is the daily note, which requires to be maintained by the teacher and that note was of the deceased Amariben. After proving handwritings of Muddamal, article No.8, a note has been received vide Exhibit 11. So, it was possible for the court even under Section 73 of the Indian Evidence Act to give look and compare the handwritings of Exhibit 10 and other undisputed documents written by the deceased Amriben. In that situation, the evidence of experts can be said to be an important opinion evidence, which corroborates to the case of the prosecution and the version of P.W.1, the document Exhibit 1 is a genuine document written by the deceased Amariben prior to hours through which she has complained about cruelty.
11. According to Mr. Bhate, learned A.P.P., the findings recorded by the learned trial Judge may be upheld.
12. Present Appeal is under Section 374 read with 386 of Criminal Procedure Code and therefore, the Court is supposed to evaluate the entire set of evidence while upholding the ultimate findings. Considering the settled legal position, if the evidence led by the prosecution is evaluated then it is difficult for this court to accept that the prosecution has successfully brought the charge of offence punishable under Section 306 of Indian Penal Code. The deceased was well educated lady and financially self sufficient. She was bold enough to give birth to a child because of her relation with appellant No.1 - accused. Ultimately, the deceased was a member of Schedule Tribe and caste customs does not prevent such relation. The relation between the deceased and the accused were old. It emerges from the document Exhibit 10 that before entering into co-habitation with the accused, some formalities have been performed at Himatnagar, which is referred to as "Civil Marriage". The police could have investigated and collected the documents to substantiate statement in this regard in document Exhibit 10, but non production of any documentary evidence in this regard, would not go against the prosecution because the Principal teacher of the School, the mother of the deceased and other witnesses have proved that the deceased Amariben may be the second wife of the appellant - accused. There is no evidence on record to show that what time prior to the commission of suicide, she was ill-treated or insulted. The entry of accused No.2 in the house on the date of the incident or some days prior thereto, may have envied her. But it is also in evidence that the deceased was aware that the appellant - accused is a married man and she had decided to be a second wife of the accused against the will and wish of her parents and they have also accepted that relation and there were witnesses by socially compromise to be accepted the appellant accused as officially their son-in-law.
13. The mother examined by the prosecution, P.W. 3 has simply stated that she was even aware about the delivery of the child, but desire of the parents including mother was that as per the caste customs, the accused should discharge his customary obligation. She has used words, which are popularly known amongst tribal i.e. these words are "Lafru Bhangvu", meaning thereby, the marriage performed by the girl against will and wish of her parents can be regularised on discharging social obligation by distributing sweets etc. to the members of family of bride. That obligation was not discharged by the accused and that grievance has been expressed by this witness - mother P.W.3 Ratanben. According to her, on the date of incident, "Lafru" was till existing and was not performing by any customary right, so the such lady whether would commit suicide or would resolve to any other action, is a question. The letter addressed to the police is nothing but an expression of apprehension that she apprehended about her death at the hand of the accused person i.e. present appellant accused and his first wife. So, if the police found that the author of the letter is dead then the police can investigate whether the death is natural or homicidal. The head of the letter Exhibit 10 clearly suggests that she might be feeling higher insecurity and unsafe. She has also stated that financially exploitation has been made in past and still that activity was going on by the appellant No. 1 - accused. The entry of his wife i.e. original accused No.2 in the house on the date of incident or any day, prior to the day of incident may have envied her and her entry in the house perhaps was viewed as a planned action of the accused No.1 and therefore, the letter was written to the police, which was received by the concern police station and entry in the police diary was made. So, when the accused No.1 and his first wife were sleeping, the deceased had left the house and committed suicide. Nobody is in this world, who can explain that why she jumped into a well. Perhaps there were possibility that his husband may be found sleeping with his first wife in her house i.e. in the house of the deceased. Whatever that it may, but the act of the suicide is individual act of the deceased and it is difficult for this Court to say that the present - accused No.1 had abated in that act. It was not possible for her to live in the house with child, when the appellant was sleeping with his first wife peacefully and may have taken other legal records, then it is probable that she may have jumped into a well under depression or frustration of insecurity. It would not be sufficient to link the appellant - accused with the crime punishable under Section 306 and the findings of the learned trial Judge to link the accused with the offence punishable under Section 306 appears to be more moral than legal. The prosecution is supposed to prove by sufficient evidence may be circumstantial with the act or behaviour of the accused was equal to an abatment with act may be overtaken or may be an omission. True it is that suicide was expressed as result and outcome of the cruelty physically and mentally as the deceased was being financially exploited by the accused . The appellant - accused ought not to have been permitted to enter his first wife in the house when the deceased had returned back with her new born child. So, the conduct of the accused is found in cruelty and torturous to the deceased. It was not sufficient for the Court to link the accused with the offence under Section 306, so such conviction cannot be sustained in the eye of law and the accused deserves to be acquitted from the charge of all these offences.
14. But the evidence that has been pointed out and referred hereinabove, while narrating the submissions by the learned advocate of the appellant - accused as well as learned A.P.P., according to me, the prosecution has satisfactorily established the charge of the offence under Section 498 (A) by leading cogent and convincing evidence. The mother of the deceased Ratanben - P.W. 3 has proved something about the situation that on the date of the commission of the suicide, his first wife Laxmiben was present in their house, where the deceased was is in circumstances of mental cruelty. She has narrated the details about the nature of mental cruelty that she was facing including financial exploitation in the document Exhibit 10. It is in the evidence that she had expressed about the conduct of the appellant - accused to the school Principal. P.W.1, Principal of school teacher has stated on oath that the deceased was on pregnancy leave, so the Department had accepted that the deceased was granted pregnancy leave. According to this witness, the deceased Amariben had delivered girl child at village Jashvantpura and thereafter, the appellant - accused had brought back the deceased Amariben to their home at village Bhetali. It is stated by this witness that the appellant - accused had come in the school on 26.3.1992 in the afternoon, and made an inquiry about where the deceased Amariben had given any application and where this witness known about that through one other teacher Lilivatiben was called to inquire into query placed by the appellant. But on that day, deceased Amariben had not responded to the query. On that evening, the appellant - accused had come to School again and had requested this witness to take seat on the scooter, at that time, this witness had said that when deceased Amariben was carrying on girl child, he may be taken on the scooter, but the accused had insisted, so that this witness took seat on his scooter and thereafter, the appellant - accused rode the scooter and he had left the school. At that time, the teacher Lilavatiben was also with deceased Amariben and this witness was not aware as to how the deceased Amariben and Lilavatiben had returned to their respective homes. It is stated by this witness that the incident had occurred on 26.3.1992 between appellant - accused and deceased Amariben, had never happened in the past. He had stated that he had never thought for this conduct of the appellant - accused and after few hours, it was clear that the deceased Amariben committed suicide. Ignorance of literal wife and or indirect insult is mental cruelty.
15. As discussed earlier, permitting to enter his first wife in the house of deceased Amariben with new born child, is an act of the appellant - accused, which can be said to be a cruel act. The document Exhibit 10 indicates that she was financially exploited and the demand of money were made by the appellant - accused frequently. She has stated that on account of this, she was falling in starving. It is not in evidence that this Court can notice on one fact based on biological reasons assigned that the pregnant lady or lady, who has given birth to child, need more food, as such women are feeling more hungry then other normal women. She was facing very much financial problem and there should be possibility to go into depression and the present appellant - accused was the responsible person for creating this situation. The deceased was dropped woman, but self respect is privilege of each individual. The accused depended on the income of deceased Amariben after performing second marriage with her and was under legal as well as moral obligation to see that she may be treated well and may not be felt to insult or ignore. It is settled position that the cruelty includes mental cruelty, physical marks falls over the body are not required to be proved by the prosecution. The date of the application received by the police is 26.3.1992 and the evidence of P.W. 1 also show that on 26.3.1992, the appellant - accused had come to the school to inquire whether the deceased Amariben had made an application to the Principal of school or not. He must have been frightened that the deceased may complaint genuinely to the school authority and Government and he may lose the job or at least, may invite some departmental action, so anxiety of the appellant - accused is found, which is exposed in the deposition of P.W.1. When the deceased Amariben felt in creating apprehension in the mind that she may be killed by her husband is sufficient to conclude that the wife must have been treated with cruelty either mentally or physically or both types of cruelty and that too frequently made otherwise the defence ought to have prove that she was a patient of depression. No such suggestive evidence made to the school teacher or other witnesses including mother. Meaning thereby, there is sufficient evidence to show that the deceased was treated with cruelty and that had led her to frustration and thereafter, depression, this is not an act of commission of suicide of a lady with child. She had decided to jump into the well leaving the child and accused behind, therefore, the act of the suicide appears to be intentional act to get rid of the frequent insult, ignorance and exploitation. The learned trial Judge has rightly linked the accused with the offence punishable under Section 498 (A). There is no error in evaluating the evidence so far as cruelty is concerned.
16. The evidence of the expert, P.W.1 Principal vis-a-vis other undisputed documents written by the deceased Amariben have been considered by me. A fair comparison of these documents from the original R & P, which before this Court and the detail cross-examination made by handwritings expert, it is not possible for this Court to accept the say of Mr. Anandjiwala that the document Exhibit 10 is got up document or created document after commission of suicide. The background under which the letter must have been written, have been discussed in earlier paragraphs and I have recorded the reasons and also finding that the letter clearly reveals that she was treated with cruelty by the accused also and therefore, only she had started feeling unsafe and was also apprehending that she may be killed. It is not possible for this Court to observe that the learned trial Judge has committed any error in receiving the document Exhibit 10 in evidence and same is reliable piece of evidence to bring all the charge of offence punishable under Section 498 (A). The evidence of the mother corroborates the case of the prosecution about the cruelty. When it is not matter of dispute that the accused No.2 was present in the house on the day on which the deceased committed suicide and the letter received by the police was written perhaps to before a day or two of the date of incident, also is the circumstances which is fulfilled by prosecution and not the accused. For short, the prosecution has proved that the deceased was treated with cruelty, which is punishable under Section 498 (A) of Indian Penal code.
17. It is difficult to accept the say of Mr. Anandjiwala, learned advocate that there is no evidence of presence of the accused No.2 in the very house, where the accused and the victim were there on that very night. The written explanation given by both the accused persons, which is not signed by both of them and has been tendered as joint explanation is an attempt to explain adequacy that had occurred at the time of explanation. Both of them jointly signed as they started inquiring about the deceased Amariben as she had been returned after complying call of nature. It is claimed by both of them that the deceased Amariben had outside the house to reply the call of nature and the well is near one water tank and the machine is fixed on it and at the time of fetching the water from the water tank, and under the hysterical, she had fallen into the well. They have claimed that perhaps she may have fallen in the well because of mental stress from one Rameshbhai. This explanation is a typed document explanation and it is added that the level of the well is later than the level of earth and when they inquiring about deceased Amariben, they came to know that she had fallen down in the well. They have claimed that thereafter they had informed Shamlaji Police Station. They were to ask to sit in the Shamlaji Police Station and an application was given with the signature of accused No.1. Both of them claimed that the contents of the application are not correct details and same has been written by the police when informing them and they were not even to make understand, when this facts have been stated. It would not be proper for this Court to accept the say of Mr. Anandjiwala, learned advocate that the accused No.2 was not present in the house at all.
18. Both the accused have explained that the deceased Amariben was not a legally wedded wife to appellant - accused. They have also stated that there are rituals, which required to be performed to regularise the marriage performed as per the custom. The defence witness examined vide Exhibit 75 i.e. one Maljibhai Dhanjibhai Kharade has stated that to avoid embargo of irregular marriage, which is popularly known as "Lafru", firstly, the girl is required to be sent at the house of the parents and after payment something, in presence of the members of the community, the girl is again sent with the boy. It is submitted that this procedure was not followed, so the deceased Amariben cannot be said to be a wife of the appellant
- accused and to bring all the charges of the offence punishable under Section 498 (A) of Indian Penal Code, the prosecution is supposed to establish that the case prosecuted is against husband or relatives of the husband or person in relation of the husband. It would be beneficial to reproduce the relevant Section 498 (A), while interpreting the scheme of Section 498 (A) of Indian Penal Code.
19. Section 498 (A): 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."
20. The case of Ramnarayan & Others (Supra) relied upon by Mr. Anandjiwala, wherein Madhaya Pradesh High Court has observed that "It must be shown that the victim woman was legally married woman. Import of provisions could not be extended so as to include a woman married impact, but whose married was void."
10.1 In para 8 of the judgment in the case of Ramnarayan (Supra), Madhaya Pradesh High Court has observed thus, but this Judgment would not help the appellant - accused because the same subsequently has been overruled by the Hon'ble Apex Court in the case of Reema Aggarwal Vs. Anupam and Others (2004) 3 Supreme Court Cases 199. When the attention of Mr. Anandjiwala was drawn, he has fairly submitted that he was not aware about the observation made by the Hon'ble Apex Court. In reference to the decision of Madhaya Pradesh High Court in Ramnarayan case (Supra), the ratio laid down in the case of Reema Aggarwal Vs. Anupam and others (2004) 3, SCC 199 and equivalent to 2004 (3) Crime 199 is the the case of the prosecution. The learned advocate Mr. Anandjiwala has attempted to distinct the ratio of the judgment in case of Reema Aggarwal (Supra) and he said that the facts of the present case are materially different. In the case before the Hon'ble Apex Court, the second wife was harassing by legally wedded wife and therefore, the victim wife prosecuted her husband and the second wife. According to me, the description in the case of Reema Aggarwal (Supra), mainly paras 8, 9 and 10 is directly answered to the points agitated by Mr. Anandjiwala. It would be beneficial to reproduce the relevant paras of the judgment.
"8. In response, learned counsel for the respondents submitted that to constitute a marriage in the eye of the law, it has first to be established that the same was a valid marriage. Strong reliance was placed on Bhaurao Shakar Lokhande V. State of Maharashtra in that context. Reference was also made to Section 5 (i), 11 and 16 of the Hindu Marriage Act, 1955 (for short "the Marriage Act") to contend that the stipulations of conditions of a valid marriage, the circumstances in which the marriage becomes void and the protection given to children of void and voidable marriages respectively makes the position clear that wherever the legislature wanted to provide for contingencies flowing from void or voidable marriages, it has specifically done so. It is latently evident from Section 16 of the Marriage Act. There is no such indication in Section 498-A IPC. The language used is "husband or relative of the husband". Marriage is a legal union of a man and a woman as husband and wife and cannot extend to a woman whose marriage is void and not a valid in the eye of the law.
9. The marriage contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established, it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long back as in 1869 "when once you get to this viz. that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law". So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
The bare fact that a man and woman live as husband and wife does not at rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife.
These observations were cited with approval in Surjit Kaur V. Garja Singh. At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhande case, this Court was dealing with a case of prosecution for bigamy. The prosecution had contended that second marriage was gandharava form of marriage and no ceremonies were necessary and, therefore, did not allege or prove that any customary ceremonies were performed. In that background, it was held that even in the case of gandharva under Section 494 IPC, the second marriage had to be a valid marriage at all in the eye of the law and was therefore, invalid. The essential ingredient constituting the offence of bigamy is the "marrying" again during the lifetime of husband or wife in contract to the ingredients of Section 498-A which Lamont other things, envisage subjecting the woman concerned to cruelty. The thrust is mainly on "marrying" in Section 494 IPC as against subjecting of the woman to cruelty in Section 498-A. Likewise, the thrust of the offence under Section 304-B is also on "dowry death". Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending act and there could be no impediment in law to liberally construe the words or expression relating to the persons committing the offence so as to rope in not only those validly marriage but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise authority as such husband over another woman. As the prosecution had set up a a please of gandharva marriage and had failed to prove the performance of ceremonies, it was not open to fall back upon the presumption of a valid marriage. It was further held that there was no such presumption, if the man was already married. In Surjit Singh Case the stand was that the marriage was in karewa form. This Court held that under the custom of karewa marriage, the widow could marry the brother or a relation of the husband. But in that case, the man was stranger. Further, even under the form of marriage certain ceremonies were required to be performed which were not proved. Dealing with the contention relating to presumption, reference was made to Kokhande case. As the parties had set up a particular form of marriage which turned out to be invalid due to absence of proof of having undergone the necessary ceremonies related to such form of marriage, the presumption of long cohabitation could not be invoked.
10. The presumption may not be available in case, for example, where the man was already married or there was any insurmountable obstacle to the marriage, but presumption arises if there is strong evidence by documents and conduct.
21. The findings of the Hon'ble Apex Court is that the husband after conducting second marriage during subsistence of earlier marriage, can be charged under Section 304B and 498 (A) of the Indian Penal Code. Here the appellant - accused is a husband, who has been held guilty of the charge for the offence punishable under Section 498 (A), who had posed himself to be a husband of the wife. He had approached the school Principal in the capacity of husband of the deceased Amariben and had inquired whether the deceased Amariben had made any application or given application to the Principal teacher and the fact stated that the deceased Amariben and in capacity of the husband has not been disputed by substantially. On the contrary, the appellant - accused has not disputed that he is a father of the child delivered by the deceased Amariben. The accused No.2 has been acquitted, has claimed that the deceased Amariben was visiting even her house and she had helped her at the time of her delivery of girl child. Whether the marriage is accepted as valid by relatives, friends and others for long time, it cannot be declared invalid, it is specifically mentioned in document Exhibit 10 that before cohabitation, some formalities were observed at Himatnagar. Even the defence side has accepted substantially that the appellant - accused has accepted the deceased Amariben as his wife and she had started residing with the appellant - accused as husband and ultimately, she became mother of the a child. When no specific ceremony was required to be performed prior to cohabitation, the ceremony which was required to be performed can be said to be a formalities carved out by the society before approving the marriage performed by the man and woman from the Schedule Tribe. The marriage that was performed between the appellant - accused and deceased Amariben was contrary to the customs of the Tribes on which they belonged. So the marriage was not accepted by the family of the deceased Amariben, therefore, the existence of marriage is one fact and its acceptance by the family of either of the spouse is a different thing.
22. In the case of John Idiculla and another Vs. State of Kerala and another reported in 2005 Cri. L. J. 2935, whereby Kerala High Court has observed the second wife of the husband, who married with the applicant subsistence of his early legal marriage was considered to be a person relative to the husband for the purpose of Section 498 (A). In this case, the first wife was being harassed by the husband as well as second wife and the defence plea whose second wife cannot be said to be a person in relation to the husband because there was no legal or valid marriage between the second wife and the husband and the complainant woman. The ratio of this judgment would help the prosecution. The phrase second wife is sufficient to confer the status to marry with the husband. There is clear distinction between a kept or concubinage a second wife. The appellant - accused belongs to class of persons i.e. Tribes where the marriage are being performed as per the rituals accepted by particular time and what could have the position, if "Lafra" could have resolved by the family members of the deceased Amariben, is crucial question where the deceased Amariben could have got the status of wife or she would remain second wife because it is difficult for this Court to believe as submitted by Mr. Anandjiwala that the deceased Amariben would not have got status of wife as the marriage of the appellant -
accused was very well in existence.
23. In the case of State of Karnatak V. Shivraj and another reported in 2002 Cri. L.J. 2741, Karnataka High Court has observed that "unless and until it is specifically pleaded, contested and established that marriage in question was void, the Court will presume marriage to be valid one and parties to be treated as husband and wife. Here the original accused No.2 was chargesheeted with the present appellant - accused, saying that she is the wife of the appellant - accused, but the marriage performed between the deceased Amariben and the appellant - accused is being a marriage performed as per the caste customs and rituals of the Tribes of which they belonged to. So, it is difficult for this Court to observe that as certain rituals i.e. after marriage ceremony were not performed, which was required to be performed to satisfy the family members of the deceased Amariben including the mother of the deceased Amariben etc. would go to the root or strength of the validity of the marriage. It is difficult for this Court to observe that the codified Hindu Law was applicable to the appellant - accused and the deceased Amariben being the members of Schedule Tribe in stricto senso. The Hon'ble Apex Court therefore, in the case of Reema Aggarwal (Supra) has made observations in reference to the validity of a marriage. Keeping in mind the relevant Sections 7 and 8 of the Hindu Marriage Act, 1955 that the marriage between the appellant - accused and deceased Amariben was tribal marriage and she was enjoying status of second wife. She was given even pregnancy leave by Government Department and after delivering the child, she had resumed the duties, where she was serving. The marriage performed by a tribal as per rituals and customs cannot be treated Hindu Marriage defined and explained in the codified of the Hindu Marriage Act, 1955. The Hon'ble Supreme Court therefore, in the case of Reema Aggarwal (Supra) as discussed, the claim under Section 494 of Indian Penal Code in above referred para 9 of the judgment. If the second marriage is automatically void, how could be any prosecution for bigamy. Here in the present case, second marriage was performed by the appellant - accused with the deceased Amariben, which can be equated with "Gandharv Vivah" or love marriage and as per say of both of them, the same was permissible in their Tribe. While putting criminal law into action, wider meaning i.e. being given by the Court. While dealing with the application under Section 125 of the Code of Criminal Procedure should be given otherwise entire purpose be prevented victimization and mental and physical cruelty to woman, perhaps may not be taken care of well and as per the intention of the legislature. So, conviction under Section 498 (A) is found sustainable. Merely the deceased wife Amariben was a second wife would not make prosecution or conviction unsustainable in the eye of law.
24. The defence witness examined does not carry the case of the appellant - accused in any direction and it appears that this man was to see that the accused are saved any how. His deposition is full of contradiction and conflict with the opinion given by the handwritings expert. His oral version is also to the contrary to the version given by the Principal teacher, who was knowing the handwritings of the deceased Amariben since last five years. The petitioner witness has denied that the handwritings in daily book that are of the deceased Amariben, though he has admitted that he himself has written his daily book, as a teacher of the school which is required to be maintained as per direction given by the Department. He has described as to in what manner, the "Lafra" can be resolved . It appears that he has attempted to act as an all rounder for the defence side. He has admitted during cross-examination that though he is a teacher, was prosecuted for the offence punishable under the Bombay Prohibition Act, in the year. In cross-examination he has stated that the case against me was dismissed by the Court, but thereafter, he has admitted that that on the date of deposition, the case against him was pending in the Court of J.M.F.C., Bhiloda. He has even shown ignorance about the seizure of the documents from the school including daily book, leave report given by the deceased Amariben etc. The Court is of the view that the learned trial Judge ought to have ordered prosecution against this witness for deliberate lie to provide cover to the persons accused. The total denial of this witness regarding handwritings of the deceased Amariben, on the contrary, he has added some force as to the case of the prosecution about genuineness of the handwritings of the deceased Amariben otherwise he could have stated that in undisputed document like daily book, there are handwritings of the deceased Amariben, but he has not stated anything about handwritings in Exhibit 10, letter written by the deceased Amariben. So the argument advanced by Mr. Anandjiwala is not accepted.
25. It is difficult for this Court to say that the accused cannot convict for the charges of offence punishable under Section 498 (A), raising a technical plea, that was taken before the trial Court. The same plea has been placed again agitated before this court in reference to the social status. But in view of the aforesaid discussion, this plea of defence is not found acceptable. For short, there is no merits in appeal so far as conviction recorded by the learned trial Court for the offence punishable under Section 498 (A).
26. It is submitted by Mr. Anandjiwala that the appellant - accused being a Govt. servant and under conviction, the appellant - accused would lose of benefits including the job, that would be the biggest punishment to the accused. It would be practically a civil death. He shall have to undertake all responsibility to maintain the children of his first wife and the daughter of the deceased Amariben. This submission was also made during the trail and even on the date of judgment. The learned trial Judge has imposed substantive sentence of one year for the offence punishable under Section 498 (A), the learned trial Judge could have imposed three years R.I. The accused is enjoying bail since the year 1994 and the incident in question is of the year 1992, so lapse of about 15 years, if the person is asked to go to the prison for a period of about one year in prison would be a longer period, so some reduction may be given in the substantive sentence imposed.
27. Having considered the totality of the facts and circumstances that have been emerged in the present case, including financial exploitation, made of deceased Amariben, if she had decided to stay with appellant - accused as wife, according to me the punishment of one year is less than adequate punishment and the same should not be reduced further. Leniency is already shown by the learned trial Court by imposing only 1/3rd of the period of punishment prescribed.
28. For the reasons aforesaid, the present appeal is partly allowed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Himatnagar in Sessions Case No.59 of 1992, so far as the offence punishable under Section 306 of Indian Penal Code, is hereby quashed and set aside. The judgment and order of conviction and sentence qua the offence punishable under Section 498 (A) is humbly upheld. The sentence of fine shall remain unaltered so far as offence punishable under Section 498 (A) is concerned and those findings are upheld.
29. At present as the appellant is on bail for the last about 13 years, he is ordered to surrender himself before the concerned Jail Authority on or before 26.10.2007, failing which the learned trial Judge shall issue a non-bailable warrant for arrest to secure his presence, so that he can be sent to prison to serve the sentence. Bail bond stands cancelled.
(C.K. BUCH, J.) ynvyas Top