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Thursday, September 24, 2015

The appellant no.1 herein even though had behaved stoically in the beginning by calling the act of the deceased as “epileptic fit”, but as soon as she realized the gravity of the situation she called her son and they took her to the hospital for examination and treatment. This act of the accused clearly shows that they did not abet the deceased in the commission of the suicide, if at all it was a suicide.From the facts and circumstances of the present case and upon the examination of the body of deceased, it is clear that her death was a result of an accident and she had mistakenly consumed the poisonous tablet as the same was kept with other medicines. Had the deceased wanted to implicate the accused, she would have revealed their names in the final moments before her death, as she had nothing to fear for and her antecedent showed that she had previously filed a complaint against the accused when they harassed her. If the accused had any hand in her death, the same would have been revealed in the dying declaration of the deceased. Thus, the prosecution has failed to prove beyond all reasonable doubt that the accused had abetted the deceased in the commission of suicide as provided under the provision of Section 306, I.P.Cin the case of Ramesh Kumar v. State of Chhattisgarh[3] at paragraph 22 wherein it is held that Sections 498A and 306 IPC are independent and constitute different offences. Merely because an accused has been held liable to be punished under Section 498A IPC, it does not follow that on the same evidence, he must also and necessarily be held guilty of having abetted the commission of suicide by the women concerned under 306 IPC. Therefore, the conviction and sentence for offence punishable under Section 306 read with Section 114 of the IPC of the present appellants is contrary to the legal evidence on record particularly, the dying declaration of the deceased and the conduct of the accused who took the deceased to the hospital. This fact has been grossly ignored by the courts below while convicting and sentencing the appellants for the aforesaid offences. Therefore, the conviction and sentence for the aforesaid offence is erroneous and accordingly it is liable to be set aside.After evaluation of evidence on record and concurrent finding of fact recorded by the trial court and the appellate court, the appellants were convicted for the offences punishable under Section 498A and 306 read with Section 114 of I.P.C. The accused were acquitted for the offences punishable under Section 304B read with Section 114 of I.P.C. and Section 4 of the Dowry Prohibition Act, 1961 as they did not find any evidence on record to bring home the guilt of appellants for the offences punishable under Section 306 as there is no cogent evidence in this regard in the finding of fact. Therefore, the conviction and sentence for the offence punishable under Section 498A of I.P.C. with regard to cruelty is held to be proved by the courts below. The same is accepted by us and they are required to be convicted and sentenced for the offence punishable under Section 498A, I.P.C. The conviction and sentence passed by the High Court for the offence punishable under Section 306 read with Section 114 of I.P.C. is liable to be set aside, accordingly, we set aside the same.Since, we have upheld the conviction for the offence punishable under Section 498A I.P.C., it is to be carefully examined by us taking into consideration the facts and circumstances of the case as to what sentence is required to be imposed upon the appellants. Keeping in view the age of the appellants i.e. the appellant No. 1-mother-in-law of the deceased who is said to be around 60 years of age and appellant No.2-sister-in-law of the deceased who is more than 35 years of age and having a child to take care of, we deem it fit and proper to limit the sentence to the period of imprisonment already undergone by them.We partly set aside the impugned judgment and order dated 23.02.2015 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 101 of 2010. We confirm the conviction on the charge under Section 498A of I.P.C. and having regard to the facts and circumstances referred to above we direct that the period already undergone by the appellants in custody is the sentence. We modify and reduce the sentence to the period of imprisonment already undergone by them.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1209 OF 2015
                (ARISING OUT OF SLP (Crl.) NO. 3869 OF 2015)

BHANUBEN AND ANR.                ………APPELLANTS
                                   Versus
STATE OF GUJARAT                  ……RESPONDENT


                               J U D G M E N T


V.GOPALA GOWDA, J.



     Leave granted.

This appeal is filed by the appellants against  the  impugned  judgment  and
order dated 23.02.2015, passed in Criminal Appeal No. 101 of  2010,  by  the
High Court of Judicature of Gujarat at Ahmedabad,  wherein  the  High  Court
has dismissed  the  appeal  of  the  appellants  and  upheld  the  order  of
conviction and sentence of the appellants under Sections 498A and  306  read
with Section 114 of the Indian Penal Code, 1860 (in short  “I.P.C.”)  passed
by the Fast Track Court, Veraval, Camp Una, in Sessions Case  No.9  of  2007
(hereinafter “the trial court”) in its judgment and order dated  21.11.2009.
The appellants have prayed to set aside the  same  and  quash  the  criminal
proceedings initiated against them by the respondent-State,  urging  various
legal grounds.

The brief facts of the case are stated hereunder  to  appreciate  the  rival
legal contentions urged on behalf of the parties:

      The appellant nos. 1 and 2 are the mother-in-law  and  the  sister-in-
law of the deceased respectively. It is the case  of  the  prosecution  that
the deceased was residing with her husband and in-laws in a joint family  at
Kodinar with a minor daughter. However, within  2  years  of  marriage,  the
deceased was allegedly tortured by her  husband  and  her  in-laws  for  not
bringing dowry and not working properly. The  deceased  was  also  allegedly
driven out of her matrimonial home and was forced  to  stay  at  Kanta  Stri
Vikas Gruh at Rajkot.

The deceased informed the complainant, who is her paternal uncle  about  the
harassment and that her husband and in-laws  were  demanding  an  amount  of
Rs.20,000/- from her. The maternal uncle of the deceased  persuaded  her  to
compromise with her in-laws and sent  her  back  to  her  matrimonial  home.
Thereafter, the deceased was kept  well  for  a  month  but  she  was  later
allegedly beaten up and driven out of  her  matrimonial  home.  A  case  was
registered against them before the  Amreli  Nari  Surakhsha  Gruh.  After  2
months, the husband and the father-in-law of the deceased brought  her  back
after making a settlement. After a month of her return  to  her  matrimonial
home, the deceased was again allegedly beaten  up  and  thrown  out  of  her
home. The deceased then filed a complaint against  her  in-laws  before  the
Babra Police Station and a maintenance  application  was  filed  before  the
Babra Court. The husband of the deceased brought her back home  again  after
making a settlement before the Court but she was again allegedly  beaten  up
by her in-laws against which she filed  a  case  before  the  Amreli  Mahila
Vikas Gruh, where her maintenance was fixed at Rs.1,000/- p.m. but the  same
was not paid by her husband.



The deceased then stayed at the Gondal  Bala  Ashram  (orphanage)  and  from
there she again went back to her  in-laws  place  at  Kodinar  to  meet  her
daughter whose custody was with her husband as part of a compromise  between
herself and the accused. It is further the case of the prosecution  that  on
12.11.2006 at about 11.30 hours when the complainant was on his way to  work
he received an information that the deceased had consumed poison  and  later
came to know through his daughter that the deceased had passed away.

The complainant then filed a complaint being I.C.R. No.172  of  2006  before
the Kodinar Police Station against the appellants and  the  husband  of  the
deceased. Thereafter, further investigation was carried out, the  panchanama
of the scene was drawn, the statements of the witnesses  were  recorded  and
the accused were arrested.

The  learned  trial  court  after  recording  the  evidence  of  prosecution
witnesses and on perusal of the dying declaration of  the  deceased  and  on
consideration of the same, convicted and sentenced  the  present  appellants
and the husband of the deceased for the offences punishable  under  Sections
498A and 306 read with Section 114 of I.P.C. The accused were to  undergo  3
years of rigorous imprisonment with a fine  of  Rs.5000/-  and  in  default,
further simple imprisonment of six months for the offences punishable  under
Sections 498A and 114 of the I.P.C. For offences punishable  under  Sections
306 and 114 of the I.P.C. the accused  were  ordered  to  undergo  10  years
rigorous imprisonment  with  a  fine  of  Rs.12,000/-each  and  in  default,
further simple imprisonment of one year. The accused were acquitted for  the
offences punishable under Section 304B read with Section 114 of  the  I.P.C.
and Section 4 of the Dowry Prohibition Act, 1961.

Being aggrieved by the same the accused filed  an  appeal  before  the  High
Court of Gujarat which dismissed the same holding  that  it  has  been  well
established that the accused have instigated the deceased and  thereby  they
abetted the deceased in committing suicide.  The  High  Court  further  held
that the accused and his family members caused mental and  physical  cruelty
and therefore, the deceased was put in a  critical  condition  and  consumed
poison and ended her life. It further held that on perusal of  the  findings
recorded by the trial court it was impossible that the deceased  could  have
consumed poison by mistake  and  therefore,  the  learned  trial  court  has
rightly convicted the accused as they are  guilty  of  the  above  mentioned
offences. The High Court  has  thus  upheld  the  order  of  conviction  and
sentence passed by the trial court against all the accused  persons.  It  is
stated that the husband of the deceased has already undergone the period  of
sentences passed against him and has been released from  jail.  The  present
appeal has been filed by the appellants-the mother-in-law and the sister-in-
law of the deceased praying to set aside their conviction and  sentence  and
for their enlargement on bail.

It has been contended by the learned counsel on  behalf  of  the  appellants
that the guilt or even the involvement of the appellants in  the  commission
of the offence has not been rightly pointed  out  by  the  courts  below  as
there are no independent evidence/witnesses against  them.  Thus,  the  case
against the appellants has not been proved beyond reasonable doubt.

It has been further contended by him that the trial court did not  find  any
incriminating material evidence against the accused so  as  to  punish  them
under the aforementioned offences. In the present matter, the only  evidence
adduced before the courts below was the deposition of the relatives  of  the
deceased  and  no  independent  witnesses  were  examined.  He  has  further
submitted that as per the provisions under  Section  113(A)  of  the  Indian
Evidence Act, 1872, the abetment on the part of the  accused  has  not  been
proved by the prosecution.

He has further contended that the  courts  below  have  not  considered  the
dying declaration of the deceased and the deposition made by the doctor  who
had examined her that were recorded  by  the  Executive  Magistrate  do  not
mention any allegation against the accused.

On the other hand, it has been  contended  by     Ms.  Hemantika  Wahi,  the
learned counsel on behalf of the respondent that the  trial  court  and  the
High Court after appreciating the evidence on  record  and  the  submissions
made on behalf of the parties  have  rightly  convicted  and  sentenced  the
accused for the afore- mentioned offences.

She has submitted that the ingredients under Sections 498A, 306 and 304B  of
I.P.C. are established beyond all reasonable doubt against the accused.  She
has further submitted that from the evidence of the witnesses, it  has  been
clearly  established  that  the  appellants  were  mentally  and  physically
harassing the deceased and even had driven her out of her matrimonial  house
several times.

 She has further submitted that  the  presumption  as  to  the  abetment  of
suicide as per Section 113A of the  Indian  Evidence  Act,  1872,  has  been
clearly proved and the appellants are responsible for abetting  her  in  the
commission of suicide which is  the  concurrent  finding  on  fact  and  the
appellants have not made out a case for interference of this Court.

On the basis of the rival legal contentions urged on behalf of  the  parties
and the evidence on record, the following  questions  would  arise  for  our
consideration:

Whether, the Courts below have rightly convicted and sentenced  the  accused
for the offences punishable under Sections 498A and 306  read  with  Section
114 of I.P.C.?


What order?



Before arriving at an irrefutable conclusion, we have to first determine  as
to whether the deceased was tortured and meted with cruelty by  the  accused
or not? To find out the same, we have perused the evidence placed on  record
by  the  prosecution  viz.,  the  deposition  of  witnesses  and  the  dying
declaration of the deceased.

It is an undisputed fact that the deceased was frequently taking  refuge  at
Kanta Stri Vikas Gruh, Rajkot, Mahila Vikas Gruh and Gondal Bala Ashram.  It
is also an undisputed fact that her  paternal  relatives  had  pacified  her
many a times and she was sent back to her in laws’  home  after  compromise.
The same has been proved by the deposition of PW-6  paternal  uncle  of  the
deceased at Exh.69 before the trial court and PW-7-the wife of PW-6 and  PW-
9-the brother of the deceased. The same has also been  further  corroborated
by PW-19 who is a social worker at Amreli Mahila Vikas Gruh at  Exh.135.  It
is also an undisputed fact that the deceased had filed a  complaint  against
the accused for maintenance, which was not paid to her by her  husband.  She
had also filed an FIR against  the  accused  on  14.02.2006  under  Sections
498A, 506(2) 114 of I.P.C and Sections 3 and  7  of  the  Dowry  Prohibition
Act, 1961. On several occasions  after  the  compromise,  the  deceased  was
again thrown out of her matrimonial home. The abovementioned witnesses  have
also stated that  the  deceased  was  regularly  taunted  and  mentally  and
physically harassed by the accused and she had complained about the same  to
the above mentioned witnesses.

It  has  also  been  deposed  before  the  trial  court  by  several   other
independent witnesses who are the neighbours of the accused and live in  the
same vicinity that they had witnessed heated exchanges and  quarrel  between
the accused and the deceased which has been corroborated by  Ravibhai  Dodia
(PW-8) in his testimony at Exh.80 before the trial court.  Further,  another
independent witness, Smt. Savitaben (PW-10), has  also  deposed  before  the
trial court at Exh.84 that the deceased had sat on “Otla” of her  house  for
2 consecutive days as the  accused  had  locked  up  their  house  and  gone
somewhere  and  came  back  only  when  they  received  a  call  from  their
neighbours about the deceased sitting there. It has also been  noticed  that
the deceased had spent several days  sleeping  at  odd  places  like,  empty
buses, etc. as she had nowhere else to go.

Further, the deposition of the witness Hirakumar Kanabhai Gohil  (PW-12)  in
his testimony at Exh.95 had stated before the trial court that the  deceased
was loitering outside his  street  and  had  asked  for  his  help,  thereby
claiming that her husband and    in-laws were trying to kill  her  and  that
is why she had run away from their home. She also had burn marks branded  on
her hands. Therefore, he had helped her and paid her an amount  of  Rs.200/-
for the bus fare. We have also taken note of the fact  that  the  mother-in-
law  ignored the pleas of the deceased by  calling  her  act  as  “epileptic
fits” when the deceased had come running out of her house  and  was  calling
out to her for help on the day of the unfortunate incidence.

There is no other material evidence or fact brought  before  this  Court  to
show that the deposition of the above mentioned witness  is  unreliable  and
this Court has no reason to  believe  the  same  to  annul  the  finding  of
conviction on the charge against the appellants. Therefore, in the light  of
the  above  mentioned  depositions  made  and  based  on   the   facts   and
circumstances of the case, it has been aptly held by the courts  below  that
the prosecution has established by adducing cogent and  convincing  evidence
that the deceased had been tortured by her  in-laws  and  her  husband.  The
reason that the deceased kept coming back to her matrimonial home by way  of
compromise in spite of all the cruelty and  torture  meted  against  her  is
because of her minor daughter who was living with  her  husband.  Thus,  the
ingredients to constitute the offence under the provision  of  Section  498A
of I.P.C. have  been  fully  satisfied  in  the  present  case  against  the
appellants. The relevant provisions of Section 498A read thus:

“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 purpose 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.”


The deceased was subjected to cruelty at the hands of her  husband  and  her
in-laws  and  the  evidence   of   the   prosecution   witnesses   and   the
circumstantial evidence makes it amply clear that she  was  harassed  beyond
limits by her in-laws, which  had  caused  her  grave  mental  and  physical
injury. The same had made her run away  from  matrimonial  home  on  several
times and had ultimately resulted in her death. On the issue that the  above
mentioned witnesses are interested witnesses and their  evidence  cannot  be
accepted by this Court as contended by the learned counsel on behalf of  the
appellants is also rejected in the light of the decision of  this  Court  in
the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal[1], wherein  this
Court has held thus:

“39…….In  a  matrimonial  dispute,  it  would  be  inappropriate  to  expect
outsiders  to  come  and  depose.  The  family  members  and  sometimes  the
relatives, friends and  neighbours  are  the  most  natural  witnesses.  The
veracity of the testimony is to be tested on objective  parameters  and  not
to be thrown overboard on the ground  that  the  witnesses  are  related  to
either of the spouse. Exception has been taken by the courts below that  the
servants of the  house  should  have  been  examined  and  that  amounts  to
suppression of the best possible evidence…….”


Now, coming to the point of determining whether the accused had  abetted  in
the commission of suicide of the deceased as provided under Section  306  of
I.P.C., the same cannot be proved with conclusive evidence in the  light  of
the fact that the deceased in her dying declaration had clearly stated  that
she had consumed the poisonous tablets by  mistake.  The  same  was  further
corroborated by the doctor who had examined her  and  had  declared  her  as
stable and conscious enough to give a  reasonable  statement.  Reliance  has
also been placed upon the decision of this Court in the case of Bhola  Turha
v. State of Bihar[2], wherein this Court has held thus:
“2. The  conviction  of  the  appellant  is  based  solely  upon  the  dying
declaration. It has been found to be reliable. It was made by  the  deceased
within about two hours from the incident and a few hours before  his  death.
In his dying declaration, he  has  clearly  explained  how  he  came  to  be
injured  by  the  appellant.  After   carefully   scrutinising   the   dying
declaration, both the courts have come to the conclusion that it contains  a
truthful version as regards the manner in which the injuries were caused  to
him.”


Further, the accused were present inside the house at the time the  deceased
consumed the poisonous tablet and they had taken  her  to  the  hospital  as
soon as they realized that she was  in  a  critical  condition.  Thus,  even
though the cruelty aspect meted on the deceased has been proved  beyond  all
reasonable doubt, it cannot be said that the same had  lead  her  to  commit
suicide or that the accused had abetted in the commission of  the  same,  as
is clear  from  the  facts  and  circumstances  of  the  present  case.  The
appellant no.1 herein even though had behaved stoically in the beginning  by
calling the act of the deceased as “epileptic  fit”,  but  as  soon  as  she
realized the gravity of the situation she called her son and they  took  her
to the hospital for examination and  treatment.  This  act  of  the  accused
clearly shows that they did not abet the deceased in the commission  of  the
suicide, if at all it was a suicide.

From  the  facts  and  circumstances  of  the  present  case  and  upon  the
examination of the body of deceased, it  is  clear  that  her  death  was  a
result of an accident and she had mistakenly consumed the  poisonous  tablet
as the same was kept with  other  medicines.  Had  the  deceased  wanted  to
implicate the accused, she would have revealed  their  names  in  the  final
moments before her death, as she had nothing to fear for and her  antecedent
showed that she had previously filed a complaint against  the  accused  when
they harassed her. If the accused had any hand in her death, the same  would
have been revealed in the dying  declaration  of  the  deceased.  Thus,  the
prosecution has failed  to  prove  beyond  all  reasonable  doubt  that  the
accused had abetted the deceased in the commission of  suicide  as  provided
under the provision of Section 306, I.P.C.

In view of the above observations made, it is amply clear that  even  though
the accused had tortured and harassed the deceased because of which she  was
constantly running away from her matrimonial  home  and  had  also  filed  a
number of complaints against the accused, the same cannot be said to be  the
reason for her death in the light of the  facts  and  circumstances  of  the
present case and the dying declaration made by her.

The learned  counsel  for  the  appellants  has  placed  reliance  upon  the
decision of this Court reported in the case of  Ramesh  Kumar  v.  State  of
Chhattisgarh[3]  at paragraph 22 wherein it is held that Sections  498A  and
306 IPC are independent and constitute different offences.   Merely  because
an accused has been held liable to be punished under Section  498A  IPC,  it
does not follow that on the same evidence, he must also and  necessarily  be
held guilty of having  abetted  the  commission  of  suicide  by  the  women
concerned under 306 IPC. Therefore, the conviction and sentence for  offence
punishable under Section 306 read  with  Section  114  of  the  IPC  of  the
present  appellants  is  contrary  to   the   legal   evidence   on   record
particularly, the dying declaration of the deceased and the conduct  of  the
accused who took the deceased to the hospital. This fact  has  been  grossly
ignored by the courts below while convicting and sentencing  the  appellants
for the aforesaid offences.  Therefore, the conviction and sentence for  the
aforesaid offence is erroneous and  accordingly  it  is  liable  to  be  set
aside.

After evaluation of evidence  on  record  and  concurrent  finding  of  fact
recorded by the trial court and the appellate  court,  the  appellants  were
convicted for the offences punishable under Section 498A and 306  read  with
Section  114  of  I.P.C.  The  accused  were  acquitted  for  the   offences
punishable under Section 304B read with Section 114 of I.P.C. and Section  4
of the Dowry Prohibition Act, 1961 as they did  not  find  any  evidence  on
record to bring home the guilt of appellants  for  the  offences  punishable
under Section 306 as there is no cogent  evidence  in  this  regard  in  the
finding of fact. Therefore, the conviction  and  sentence  for  the  offence
punishable under Section 498A of I.P.C. with regard to cruelty  is  held  to
be proved by the courts below. The same is  accepted  by  us  and  they  are
required to be convicted and sentenced  for  the  offence  punishable  under
Section 498A, I.P.C. The conviction and sentence passed by  the  High  Court
for the offence punishable under  Section  306  read  with  Section  114  of
I.P.C. is liable to be set aside, accordingly, we set aside the same.

Since, we have upheld  the  conviction  for  the  offence  punishable  under
Section 498A I.P.C., it is to  be  carefully  examined  by  us  taking  into
consideration the facts and circumstances of the case as  to  what  sentence
is required to be imposed upon the appellants. Keeping in view  the  age  of
the appellants i.e. the appellant No. 1-mother-in-law of  the  deceased  who
is said to be around 60 years of age  and  appellant  No.2-sister-in-law  of
the deceased who is more than  35 years of age and having a  child  to  take
care of, we deem it fit and proper to limit the sentence to  the  period  of
imprisonment already undergone by them.

 We partly set aside the impugned judgment and  order  dated  23.02.2015  of
the High Court of Gujarat at Ahmedabad   in   Criminal  Appeal  No.  101  of
2010.

     We confirm the conviction on the charge under Section  498A  of  I.P.C.
and having regard to the  facts  and  circumstances  referred  to  above  we
direct that the period already undergone by the  appellants  in  custody  is
the  sentence.  We  modify  and  reduce  the  sentence  to  the  period   of
imprisonment already undergone by them.

 Since, we have stated that period already undergone is the  sentence  which
we have modified in this judgment for the conviction under Section  498A  of
the I.P.C. and in pursuant to the impugned judgment and order  of  the  High
Court,  the  appellants  have  surrendered  to  undergo  the   imprisonment.
Presently, they are undergoing  sentence  imposed  by  the  High  Court  and
therefore,  we  direct  the  Jail  Superintendent,  Rajkot  Central  Prison,
Rajkot, Gujarat to release them forthwith, if  not  required  in  connection
with any other criminal case.

  Accordingly, the appeal is allowed to the aforesaid extent.



                                                   ……………………………………………………………J.
   [T.S.THAKUR]



                         ……………………………………………………………J.
                         [V.GOPALA GOWDA]



New Delhi,                                         September 14, 2015

-----------------------
[1]    (2012) 7 SCC 288
[2]    (1998) 9 SCC 15
[3]    (2001)9 SCC 618


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