advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, July 26, 2013

Letter of deceased which can not be treated as Dying Declaration, can not be considered as admissible evidence in the absence of corroboration = the High Court found the appellant to be guilty of the offence under Section 498A, IPC, because of some conduct or acts of the appellant of which the deceased has complained of in her letter to the Police Station on 26.03.1992. She submitted that the High Court held that the acts or conduct of the appellant amounted to cruelty for which the appellant was liable for the offence under Section 498A, IPC, but did not amount to abetment of suicide within the meaning of Section 306, IPC. She submitted that the statements of the deceased in the letter of the deceased to the Police Station (Ext.10) were not proof of the acts or conduct of the appellant in the letter and in any case these acts or conduct of the appellant did not amount to cruelty within the meaning of clauses (a) or (b) of the Explanation under Section 498A, IPC. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. 16. In the present case also, except Ext.10, the letter written by the deceased to the Police Station on 26.03.1992, no other witness has spoken about the appellant having starved the deceased of food and having committed acts of mental cruelty to the deceased. On the other hand, the mother of the deceased (PW-3) has stated in her cross-examination: “I have not recorded in my statement before police that Amri was giving her salary to her husband. It is not true that when I went to see Amri, at that time, my daughter was crying she had food problem, I say it is false.” =in this case there is no evidence of any physical harm having been caused by the appellant to the deceased nor any acts of mental cruelty committed by him. Hence, the appellant cannot be held guilty of any cruelty within the meaning of clause (a) of the Explanation under Section 498A, IPC. In the result, we set aside the impugned judgment of the High Court and acquit the appellant of the charge under Section 498A, IPC. Since the appellant is on bail, his bail bonds be discharged.

reported http://judis.nic.in/supremecourt/imgst.aspx?filename=40593
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL No. 1567 of 2007

Kantilal Martaji Pandor                            …… Appellant

                                   Versus

State of Gujarat & Anr.                                   ….. Respondents




                               J U D G M E N T

A. K. PATNAIK, J.



      This is an appeal by way of special leave under  Article  136  of  the
Constitution against the judgment and order dated 13.09.2007 of the  Gujarat
High Court in Criminal Appeal No.294 of 1994.

FACTS
2.    The facts very briefly are that
the appellant was married to  Laxmiben
in 1980.  
The appellant, who was a teacher, used to travel in  a  bus  along
with Amriben, who was also a teacher, for their  work  in  their  respective
schools located at a distance of 2 kms. from each other.  
The appellant  and
Amriben fell in love and got married  in  1990.   
A  daughter  was  born  to
Amriben in 1991.  
The appellant, Laxmiben and Amriben were  living  together
in different portions of one house  of  the  appellant  in  village  Dhuleta Palla.  
On 26.03.1992, a letter written by Amriben was received in  Shamlaji Police Station.  
In  this  letter,  
Amriben  alleged  inter  alia  that  the
appellant was  more  interested  in  money  and  not  in  love  and  he  had
threatened and kidnapped her, although he had a wife and three children  and
the appellant had cheated her and persuaded her to have  civil  marriage  on
21.08.1990.  
She further alleged in  the  letter  that  after  marriage  the
appellant’s family was living on her salary and the  appellant  had  started
torturing her to a limit which was no longer tolerable by her  and  she  was
also not given meals and 
the appellant was threatening to kill her  and  
for
all this the appellant and his first wife  Laxmiben  and  his  other  family
members were involved.  
On 26.03.1992 in the afternoon, the  appellant  came
to the school of Amriben and enquired from the Principal of the  school  and
the teacher of Amriben as to whether Amriben had made  a  complaint  to  the
Police Station.  
That evening, the appellant who usually took  Amriben  back
from  her  school  instead  requested  the  Principal  of  her  school,  Ms.
Timothibhai, to take seat on the scooter with him and as  a  result  Amriben
had to walk along with Lilavatiben, who was holding her little daughter,  to
the bus stand.  
During the night of 26.03.1992,  the  appellant  slept  with
Laxmiben while Amriben slept with her new born daughter in another  room  of
the house.  
On 27.03.1992, early in the morning, the appellant and  Laxmiben heard the little daughter of Amriben crying and they found that Amriben  had jumped into the well and had died.

     3. A post  mortem  on  the  dead  body  of  Amriben  (for  short  ‘the
        deceased’) was conducted on 28.03.1992 at 2.30 p.m. and  the  cause
        of the death was found to be drowning.  Initially, on the report of
        the appellant, the Shamlaji Police Station registered an accidental
        death case under Section 174 of the Criminal Procedure  Code,  (for
        short ‘the Cr.P.C.’).  Subsequently, however, on 03.04.1992 an  FIR
        was registered by Shamlaji Police Station under Sections  498A  and
        306 of the Indian Penal Code (for short ‘the IPC’) in view  of  the
        allegations made by the deceased in her letter dated 26.03.1992  to
        the police station.  Investigation was carried out  and  a  charge-
        sheet was filed against the appellant and Laxmiben  under  Sections
        498A and 306, IPC.

     4. At the trial, amongst other witnesses examined  on  behalf  of  the
        prosecution, Ms. Timothibhai, Principal of the school, was examined
        as PW-1, the doctor who carried out the post mortem was examined as
        PW-2, the mother of the deceased was examined as PW-3, Lilavatiben,
        co-teacher of deceased was examined as PW-4 and  the  Investigating
        Officer was examined as PW-10.
The appellant also examined various
        witnesses in his defence.
The trial court by  its  judgment  dated
        10.02.1994  in  Sessions  Case  No.59/92  acquitted  Laxmiben,  but
        convicted the appellant under  Sections  498A  and  306,  IPC,  and
        sentenced him to simple imprisonment for one year and two years for
        the two offences respectively and also imposed a fine  of  Rs.100/-
        for each of the offences.
Aggrieved, the appellant filed  criminal
        appeal before the High Court, and by  the  impugned  judgment,  the
      High Court acquitted the appellant from the  charge  under  Section
        306, IPC,  but  maintained  the  conviction  and  sentence  on  the
        appellant under Section 498A, IPC.  
Aggrieved,  the  appellant  has
        filed this appeal.

Contentions of the learned Counsel for the parties:

     5. Learned counsel for the appellant, 
Ms. Aishwarya  Bhati,  submitted
        that in the impugned judgment,
the High Court found  the  appellant
        to be guilty of the offence under Section  498A,  IPC,  because  of
        some conduct or acts of the appellant of  which  the  deceased  has
        complained of in her letter to the Police  Station  on  26.03.1992.
       
She submitted that the High Court held that the acts or conduct  of
        the appellant amounted to  cruelty  for  which  the  appellant  was
        liable for the offence under Section 498A, IPC, but did not  amount
        to abetment of suicide within the meaning of Section 306, IPC.  
She
submitted that 
the statements of the deceased in the letter of  the deceased to the Police Station (Ext.10) were not proof of the  acts or conduct of the appellant in the letter and  in  any  case  these acts or conduct of the appellant did not amount to  cruelty  within   the meaning of clauses (a) or (b) of the Explanation under  Section   498A, IPC.

     6. Ms. Bhati submitted that the evidence of PW-3, the  mother  of  the
        deceased, would show that when the deceased was carrying the child,
        PW-3 had been to see the deceased and she did  not  find  that  the
        deceased had any food problem.  She also referred to  the  evidence
        of PW-4 to show that the appellant’s conduct was  not  such  as  to
        amount to cruelty or harassment within the meaning of  clauses  (a)
        or (b) of the Explanation of Section 498A, IPC.  She submitted that
        the post mortem report (Ext.15), on the other hand, would show that
        the deceased was well-nourished and  was  well-built  and  did  not
        suggest that she was starved of any food.

     7. Ms. Bhati cited the decision of this Court in State of West  Bengal
        v. Orilal Jaiswal & Anr. [(1994) 1 SCC 73] in  which  it  has  been
        held that the charges made against an accused under  Section  498A,
        IPC, must be proved  beyond  all  reasonable  doubt  and  that  the
        requirement of proof is not satisfied by surmises and  conjectures.
        She also cited the decision of this Court in Manju  Ram  Kalita  v.
        State of Assam [(2009) 13 SCC 330]
wherein it has  been  held  that
        for holding an accused guilty under Section 498A, IPC, it has to be
        established  that  the  woman  has  been   subjected   to   cruelty
        continuously/persistently or at least in close proximity of time to
        the lodging of the complaint and petty quarrels cannot be termed as
        “cruelty” to attract the provisions of Section  498A,  IPC,  though
        mental torture to the extent that  it  becomes  unbearable  may  be
        termed as cruelty.  She vehemently submitted that in this case  the
        prosecution  has  not  proved  beyond  reasonable  doubt  that  the
        appellant was in any way guilty of any act or conduct which  is  of
        the nature described in clauses (a) and (b) of Section  498A,  IPC,
        so as to amount to cruelty within the meaning of this Section  and,
        therefore, the appellant is entitled to be acquitted by this  Court
        of the charge under Section 498A, IPC.

     8. Ms. Pinky Behera, learned counsel  appearing  for  the  respondent-
        State, on the other hand, relied on Ext.10,  which  is  the  letter
        written by Amriben to Shamlaji Police Station on 26.03.1992 to  the
        Police Station and submitted that there was sufficient evidence  in
        Ext.10 to show that the appellant had  treated  the  deceased  with
        cruelty within the meaning of Section 498A, IPC.  She  also  relied
        on the findings of the High Court in paragraph 15 of  the  impugned
        judgment in which the High Court has found the appellant guilty  of
        the offence punishable under Section  498A,  IPC.   She  vehemently
        argued that even though the High Court has found that the appellant
        was not guilty of abetment of suicide within the meaning of Section
        306, IPC, the appellant can still be held liable  for  the  offence
        under Section 498A, IPC,  if  he  had  committed  acts  of  cruelty
        towards the deceased.  In support of this contention, she relied on
        the decision of this Court in West Bengal v. Orilal Jaiswal &  Anr.
        (supra).

Findings of the Court:

     9. Section 498A, IPC, under which the appellant’s conviction has  been
        maintained by the High Court is extracted hereinbelow:


      “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.”

    10.  It will be clear from the language of Section 498A, IPC, that if a
        husband subjects his wife to cruelty, he  shall  be  punished  with
        imprisonment for a term which may extend to three years  and  shall
        also be liable to fine.  The Explanation under Section 498A defines
        “cruelty” for the purpose of Section 498A to mean any of  the  acts
        mentioned in clause (a) or clause (b).  In this case, clause (b) is
        not attracted as there was no harassment by the husband with a view
        to coercing her to meet any unlawful demand  for  any  property  or
        valuable security or on account of failure  by  her  to  meet  such
        demand.

    11. The first limb of clause (a) of the Explanation  of  Section  498A,
        IPC, states that “cruelty” means any wilful  conduct  which  is  of
        such a nature as is likely to drive the woman  to  commit  suicide.
        In the present case, although the trial court found  the  appellant
        guilty of conduct which had driven the deceased to  commit  suicide
        and hence liable for the  offence  of  abetment  of  suicide  under
        Section 306, IPC, the High Court  has  given  a  clear  finding  in
        paragraph 13 of the impugned judgment that the  conviction  of  the
        appellant under Section 306, IPC, cannot be sustained in the eye of
        law and the appellant deserves to be acquitted  of  the  charge  of
        abetment of suicide under Section  306,  IPC.   This  part  of  the
        finding has not been challenged by the State in appeal before  this
        Court and has, therefore, become final.  Thus, the appellant cannot
        be held guilty of any wilful conduct which was of such a nature  as
        is likely to drive the deceased to commit suicide.

    12.  The second limb of clause (a) of the Explanation of Section  498A,
        IPC, states that cruelty means any wilful conduct which is of  such
        a nature as to cause grave injury or danger to life, limb or health
        (whether mental or physical) of the woman.  In  the  present  case,
        the High Court has recorded findings against the appellant to  hold
        him guilty of the offence under Section 498A, IPC,  presumably  for
        “cruelty” which falls within the second limb of clause (a)  of  the
        Explanation under Section 498A, IPC.  The relevant findings of  the
        High Court in paragraph 15 of the impugned judgment  are  extracted
        hereunder:

          “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  individuals.   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 PW-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 complain  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  PW-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  witness  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  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
          498A. There is no error in evaluating  the  evidence  so  far  as
          cruelty is concerned.

    13.  Obviously, the finding of the High Court that permitting the first
        wife to enter the house of deceased Amriben  with  new  born  child
        amounts to  a cruel act is erroneous as such act cannot  amount  to
        cruelty within the meaning of second limb  of  clause  (a)  of  the
        Explanation under Section 498-A, IPC.   However,  the  High  Court,
        relying on the letter written by the deceased to the Police Station
        on 26.03.1992 (Ext.10),  has  also  come  to  a  finding  that  the
        appellant had starved the deceased of food when she was pregnant by
        spending the salary earned by the deceased on his  own  family  and
        had also subjected the deceased to other acts of mental cruelty.

    14. The question that we have, therefore,  to  decide  is  whether  the
        Court could have arrived at this finding  that  the  appellant  has
        starved the deceased and committed various acts of  mental  cruelty
        towards the deceased only on the  basis  of  the  contents  of  the
        letter dated 26.03.1992 written  by  the  deceased  to  the  Police
        Station.  The letter written by the deceased on 26.03.1992 could be
        relevant only under Section 32(1) of the Indian Evidence Act, 1872,
        which provides that a statement, written  or  verbal,  of  relevant
        facts made by a person who is dead, is relevant when the  statement
        is made by a person as to the cause of his death, or as to  any  of
        the circumstances of the transaction which resulted in  his  death,
        in cases in which the cause  of  that  person’s  death  comes  into
        question.  The High Court in the present case has already held that
        the appellant was  not  guilty  of  abetting  the  suicide  of  the
        deceased and was,  therefore,  not  guilty  of  the  offence  under
        Section 306, IPC.  As the cause of the death of the deceased is  no
        more in question in the present case, the statements  made  by  the
        deceased in the letter  dated  26.03.1992  to  the  Police  Station
        cannot be taken  to  be  proof  of  cruel  acts  committed  by  the
        appellant for the purpose of holding him guilty under Section 498A,
        IPC.

    15.  For taking this view, we are supported by  the  decision  of  this
        Court in Inderpal v. State of M.P. [(2001) 10 SCC  736].   In  this
        case, Inderpal was charged and tried for the offence under  Section
        306, IPC, and convicted by the trial court for the said offence  of
        abetment of suicide.  In appeal filed by Inderpal, the  High  Court
        found that the offence under Section 306, IPC, was not made out  as
        it could not be  held  that  death  of  the  deceased  was  due  to
        commission of suicide, but the High Court held the appellant guilty
        of the offence under Section 498A, IPC.  This finding of  the  High
        Court was based on the evidence of the father, mother,  sister  and
        another relative of the deceased who deposed on the basis of  inter
        alia the two letters (Exhibits P-7 and P-8) written by the deceased
        Damyanti that Inderpal, her husband, had subjected her to  beating.
        This Court found that apart from the statement  attributed  to  the
        deceased, none of the witnesses had spoken of anything  which  they
        had seen directly and the question that this Court  had  to  decide
        was whether the statement attributed to the deceased could be  used
        as evidence including the contents of Exts.P-7  and  P-8  and  this
        Court held that the contents of Exts. P-7 and P-8  written  by  the
        deceased could not be treated as proof of the acts  of  cruelty  by
        Inderpal for the purpose of offence under Section 498A,  IPC.  
The
        reasons given by this Court in  paragraph  7  of  the  judgment  as
        reported in the SCC are as follows:
       “7.  Unless the statement of a dead  person  would  fall  within  the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence.
In  order
       to make the statement of a dead person admissible in law (written  or
       verbal) the statement must be as to the cause of her death or  as  to
       any of the circumstance of the transactions  which  resulted  in  her
       death, in cases in which the cause of death comes into  question.  
By
       no stretch of imagination can the statements of Damyanti contained in
       Exhibit P-7 or Exhibit P-8 and  those  quoted  by  the  witnesses  be
       connected with any circumstance of the transaction which resulted  in
       her death. 
Even that apart, when we are dealing with an offence under
       Section 498-A IPC disjuncted from the offence under Section  306  IPC
       the question of her death is not an issue for  consideration  and  on
       that premise also Section 32(1) of the Evidence Act will stand at bay
       so far as these materials are concerned.


    16.  In the present case also, except Ext.10, the letter written by the
        deceased to the Police Station on 26.03.1992, no other witness  has
        spoken about the appellant having starved the deceased of food  and
        having committed acts of mental cruelty to the  deceased.   On  the
        other hand, the mother of the deceased (PW-3)  has  stated  in  her
        cross-examination:

          “I have not recorded in my statement before police that Amri  was
          giving her salary to her husband.  It is not  true  that  when  I
          went to see Amri, at that time, my daughter was  crying  she  had
          food problem, I say it is false.”



    17.   This being the evidence of the mother of the deceased,  the  High
        Court could not have come to the conclusion that the  deceased  was
        subjected to financial exploitation and starving and mental cruelty
        by the appellant.
Unlike the case  of  State  of  West  Bengal  v.
        Orilal Jaiswal & Anr. (supra) cited by Ms. Behera  
in  which  there
        was evidence of the husband  coming  home  drunk  and  abusing  and
        assaulting the deceased wife, 
in this case there is no evidence  of
        any physical harm having  been  caused  by  the  appellant  to  the
        deceased nor any acts of mental cruelty committed by  him.   
Hence,
        the appellant cannot be held  guilty  of  any  cruelty  within  the
        meaning of clause (a) of the Explanation under Section 498A, IPC.

    18. In the result, we set aside the impugned judgment of the High Court
        and acquit the appellant of the charge  under  Section  498A,  IPC.
        Since the appellant is on  bail,  his  bail  bonds  be  discharged.



                                                       ..……………..……………………….J.
                                            (A. K. Patnaik)





                                                      ...…………..………………………..J.
                                               (Sudhansu Jyoti Mukhopadhaya)

New Delhi,
July 25, 2013.



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.