CR.A/721/2003 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 721 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= BHARAT CHHOTALAL VAGHELA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HRIDAY BUCH for Appellant(s) MS.HANSA PUNANI, APP for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/01/2008 ORAL JUDGMENT This appeal is directed against the judgment and order dated 16th May 2003 rendered by the learned Additional Sessions Judge, Junagadh in Sessions Case CR.A/721/2003 2/17 JUDGMENT No.25 of 2000. 2. The appellants were charged under sections 306 and 408-A of the Indian Penal Code. Appellant No.1, husband of deceased Vandanaben was convicted for offences punishable under sections 306 as well as 498-A of the Indian Penal Code. He was sentenced to undergo rigourous imprisonment for 7 years and 2 years respectively for the said offences. Appellant No.2 was the mother-in-law of deceased Vandanaben. She has also been convicted under sections 306 and 498-A of the Indian Penal Code. She was sentenced to undergo simple imprisonment of 5 years and 2 years respectively for the said offences. Both the accused were also ordered to pay fine. 3. As per the prosecution case, marriage of Vandana took place with appellant No.1, original accused No.1 about 7 months before the date of the incident. On account of doubt about the character of deceased Vandanaben, the accused were ill-treating her. Vandanaben had visited her parents house on a couple of occasions after her marriage and narrated her plight to her relatives, particularly to her mother. On account of such unbearable mental and physical cruelty, Vandanaben committed suicide on 10th June 1999 by setting herself on fire after pouring kerosene. 4. The prosecution examined several witnesses to prove the charge. Mandhusudan, PW-1, Ex.11 is the CR.A/721/2003 3/17 JUDGMENT father of Vandana. In his deposition, he stated that his daughter Vandana got married about 6 months before the incident. Vandana had come to his house after marriage at which time, she had told him that her husband doubts her character and alleges that she is carrying a child in her womb and therefore she does not get mensuration. The witness had, therefore, explained to Vandana's mother-in-law that there is no such thing and to verify, they should consult Dr.Bhargav Pandit. A couple of days thereafter, Vandana's in-laws had brought her to the hospital of Dr.Bhanuben Nanavati. The doctor had opined that Vandana is not pregnant and she need not be doubted. Vandana was taken to doctor on two or three occasions. Thereafter, Vandana's father-in-law brought her to the witness's house and stated that between Vandana and her husband, there is no attachment. He would pick up Vandana after persuading his son. After that, Vandana had complained to him and other family members that her husband doubts her character and her mother-in-law taunts and beats her on account of doubt about her character. About 8 days thereafter, the accused had come and taken Vandana back after assuring that she would not be subjected to cruelty. About 8 days thereafter, the witness received a phone call informing him that Vandana has got burnt accidentally. He, therefore, went to the place of the accused and found that Vandana was already dead. Upon being inquired, Vandana's in-laws informed him that she got burnt after pouring kerosene on herself. CR.A/721/2003 4/17 JUDGMENT In cross-examination, the witness stated that after marriage, Vandana came to his house on 3 or 4 occasions. He agreed that between Vandana being taken by her in-laws and the date of the incident, which took place about 8 days thereafter, Vandana had not spoken to him. 5. PW-3, Shardaben, mother of Vandana was examined at Ex.18. She stated that she had once gone to the house of Vandana when she was sick. She was suffering from fever. Vandana told the witness that her husband doubts her character and her mother-in- law taunts and ill-treats her. On account of such doubt, Vandana was brought to Dr.Nanavati's hospital. The doctor stated that Vandana was not pregnant, despite which the accused continued to doubt her character. Sometimes thereafter, Vandana's father- in-law brought Vandana to the house of the witness and left her there on account of such doubt. He had further stated that after persuading his son, he would pick up Vandana later. At that time, Vandana in front of the witness and other relatives narrated that the accused doubt her character and taunt her and treat her with mental cruelty. She was not prepared to go to her matrimonial home under any circumstances. After that accused assured that Vandana will not be subjected to cruelty, upon which she was sent to her in-laws house. About 8 days thereafter, she received a message of Vandana getting burnt. CR.A/721/2003 5/17 JUDGMENT In cross-examination, the witness stated that the marriage lasted for about 5 or 6 months and that she had accompanied Vandana when she was taken to Dr.Bhargav Pandit's hospital. She agreed that at that time, accused were also there. 6. PW-4, Gangaben was examined at Ex.20. She resided in the neighbourhood of Vandana's inlaw's house. She came to know about Vandana's death since many people had gathered there on the date of the incident. In her cross-examination, she agreed that accused No.2 had gone out to buy vegetables when the incident took place and returned only thereafter. 7. Panchnama of the scene of incident was produced at Ex.26. It showed that the fire had affected large area in the kitchen of the house and some glasses were broken. There was a gas cylinder connected to the burner by a rubber tube. This, however, was disconnected and black suit was found on the cylinder. Some burnt clothes of the deceased girl were also found in the room. Water was thrown to douse fire. These things smelt of kerosene. 8. At Ex.27, panchnama of muddamal articles collected from the scene of offence was produced. It showed that there was no leakage in the gas cylinder or burner. 9. Dr.Bhargav Pandit,PW-6 was examined at CR.A/721/2003 6/17 JUDGMENT Ex.31. He had stated that he examined Vandana on 11.2.99. He had given medicine to the patient for fever as well as for mensuration. He had conducted pregnancy test of Vandana through analysis of urine as well as by sonography. From these tests, he could state that Vandana was not pregnant. In his case papers, he had recorded that Vadana got mensuration on account of his treatment. In cross-examination, he could not state as to who accompanied Vandana. 10. PW-7, Ashokbhai was examined at Ex.43. He is the uncle of Vandana. He also stated that Vandana had complained to him about her ill-treatment by the accused on account of their doubt about her character. 11. Dr.Gokaldas, Manjibhai, PW-2 was examined at Ex.30. He had carried out the post mortem of Vandana. He stated that on ornaments such as, chain and ear- rings, etc. there was small of kerosene coming out. From the body of the deceased also, smell of kerosene was emitted. The body of the deceased had no clothes. Bones were visible from several part of the body, such as under-arms, hands, fingers, etc. 12. From the above evidence on record, the learned Additional Sessions Judge came to the conclusion that both the accused were guilty of offence punishable under section 306 read with 498A of the Indian Penal Code. CR.A/721/2003 7/17 JUDGMENT 13. Appearing for the appellants, learned advocate Shri Buch submitted that the prosecution failed to establish the necessary ingredients for the said offences. He submitted that the marriage lasted for less than 7 months, during which period, as per the prosecution witnesses, Vandana remained with her in-laws and husband for a very short duration. It was pointed out that there was no proximity between the alleged cruelty committed on Vandana and her act of committing suicide. It was, therefore, contended that at any rate conviction under section 306 of the Indian Penal Code was not justified. 14.1 It was further submitted that neither of the accused were present when Vandana took the extreme step. Their involvement in her committing suicide, therefore, cannot be believed. 14.2 It was submitted that allegation that Vandana was taken to gynecologist for pregnancy related tests is not established. Dr.Bhargav Pandit in his deposition did not state that Vandana was brought for pregnancy test and it is entirely possible that she was taken to doctor for treatment of fever. 14.3 It was contended that to drive home charge under section 306 of the Indian Penal Code read with section 107, the prosecution has to demonstrate persistent, continuous and unbearable cruelty leaving no option at all to the deceased except committing CR.A/721/2003 8/17 JUDGMENT suicide. 14.4 Reliance was placed on the decision of the Apex Court in the case of Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 wherein the Apex Court observed that to establish instigation under section 107 of the Indian Penal Code, there must be reasonable certainty to incite the consequence. It was a case wherein pursuant to quarrel between husband and wife, wife committed suicide. In her dying declaration, deceased lady had stated that her husband pursuant to the quarrel had told her that she could go wherever she wanted, upon which she poured kerosene on herself and set fire. In the above background of facts, the Apex Court though maintained the conviction of the husband under section 408 of the Indian Penal Code, his conviction under section 306 was set aside. 14.5 Reliance was placed in the case of Sanju v. State of M.P., (2002) 5 SCC 371 wherein the Apex Court quashed the chargesheet against the accused under section 306 of the Indian Penal Code. The wife had committed suicide after a quarrel with the husband who had told her to go and die. It was held that the same would not fall within the term 'instigate' used in section 107 of the Indian Penal Code. 14.6 Reliance was placed on the decision of the Apex Court dated 14.5.2007 in Appeal (Cri.) No.720 of CR.A/721/2003 9/17 JUDGMENT 2007 in the case of Bhagwan Das v. Kartar Singh & ors. In the said decision, the deceased had committed suicide by hanging herself from the ceiling alleging that she was being taunted for bringing insufficient dowry. On facts, it was held that the allegations were insufficient to establish charge under section 306 of the Indian Penal Code. It is observed that mere harassment of wife by husband per se would not attract the provisions of section 306 of the Indian Penal Code if the wife commits suicide. 14.7 Reliance was also placed on the decision of the Apex Court in the case of Mahendra Singh v. State of M.P., 1995 Supp (3) SCC 731 wherein on mere allegations of harassment by the accused, the Court refused to convict them under section 306 of the Indian Penal Code. The Apex Court further found that convicting the accused under section 498-A would cause prejudice since the accused were not charged with such offence and husband and mother-in-law had undergone the sentence imposed. 15. On behalf of the State, learned APP Ms.Punani opposed the appeal. She submitted that the prosecution had established the case beyond doubt by leading cogent evidence. The learned Additional Sessions Judge had given sufficient reasons to convict the accused persons. She therefore submitted that the appeal be dismissed. 16. As noted earlier, marriage of Vandana lasted CR.A/721/2003 10/17 JUDGMENT less than 7 months. She was barely 19 years of age on the date of the incident. Her father Madhusudan, PW-1 as well as her mother Shardaben, PW-3 stated in their depositions that Vandana had visited them on a couple of occasions after marriage during which period, she had complained about the ill-treatment particularly by her husband on account of his doubt about her character. They further stated that even mother-in-law taunted her for the same reason. Such testimony was also given by the uncle of Vandana, Ashokbhai, PW-7, Ex.43. In fact, Vandana's father and mother stated that some time before the incident, Vandana was brought to their house by her father-in- law saying that there was no harmony between Vandana and her husband and that he would take her back once he could persuade his son. Sometimes thereafter, the accused came to the house of Vandana's parents, assured them that there would be no further ill- treatment and took her back. Only 8 days thereafter, Vandana committed suicide by pouring kerosene and setting fire on herself. 17. The fact that Vandana committed suicide is really not possible to be contested. Though a faint attempt was made by the defence to suggest that it was an accidental death, there is nothing on record to shake the firm foundation laid by the prosecution to demonstrate that Vandana died a suicidal death. 18. She was found in the kitchen in severely CR.A/721/2003 11/17 JUDGMENT burnt condition. All her clothes had got burnt. Her flesh was burnt on several parts and bones were visible. From the scene of the incident and particularly the burnt clothes of the deceased emitted strong smell of kerosene. The dead body of Vandana was examined by the doctor while performing post-mortem. He also found presence of kerosene smell from the body as well as ornaments worn by Vandana at the time of her death. There is thus no doubt that Vandana died by pouring kerosene on herself and setting herself ablaze. The reasons for Vandana to take this extreme step have also been stated by the witnesses. As noticed earlier, Vandana's father, PW-1 in his deposition Ex.11 stated that Vandana was being treated with cruelty by her husband and her mother-in-law on account of doubt about her character. Vandana's mother also gave similar account. She stated that Vandana had come to her house before the incident. She had complained about the ill-treatment and in particular, she stated that her husband doubts her character and her mother-in-law taunts her. She in fact refused to go back to her matrimonial home. She was, however, persuaded to go back after the accused assured Vandana's parents that the ill-treatment would not be repeated. Only 8 days thereafter, Vandana committed suicide. 19. In addition to the depositions of Vandana's parents and her uncle, the prosecution also examined Dr.Bhargav Pandit, PW-6 at Ex.31. He corroborated CR.A/721/2003 12/17 JUDGMENT the version given by Vandana's parents about the visits to gynecologists for verifying the pregnancy status of Vandana. This doctor had carried out urine and sonography tests to find out the pregnancy. He had opined that Vandana was not pregnant. 20. The prosecution had also produced on record, the case papers of the treatment received by Vandana in Dr.Bhanuben Nanavati's hospital. From the above evidence, it can be clearly seen that Vandana whenever stayed with her in-laws was treated with extreme cruelty and mental harassment particularly by her husband on account of his doubt about her character. It is true, as pointed out by the learned advocate Shri Buch for the appellants, that Vandana stayed with her in-laws and husband for a short duration. Vandana's entire married life was less than 7 months. If she stayed in the house of her in-laws and husband for short duration, that by itself would not mean that she was not subjected to cruelty. In fact, the prosecution has led evidence to show that Vandana was dropped to her parents house by her father-in-law stating that there is no harmony between Vandana and her husband and that he would pick up Vandana once he could persuade his son. 21. The fact that Vandana was subjected to cruelty during her stay with her husband thus remains firmly established. The question is whether the cruelty meted out by the accused was sufficient to CR.A/721/2003 13/17 JUDGMENT attract the provisions of section 306 of the Indian Penal Code against both of them ? 22. As noted earlier and as rightly pointed out by learned advocate Shri Buch for the appellant, it was the husband of Vandana who had doubt about her character. Vandana's mother-in-law perhaps believing her son only taunted her for the same reason. In this respect, to my mind, the role played by both the accused need to be bifurcated. 23. So far as appellant No.1 is concerned, he was the husband of the deceased girl. For a 19 year old girl, who had got married only a few months before, her husband's love and affection and respect in society is of paramount importance. When her husband instead of respecting her and treating her with affection, goes to the other extreme and alleges her of having illicit extra marital and pre- marital relations and of carrying of someone else child, the husband surely treats the wife with extreme cruelty. Chastity and fidelity for a woman during her marriage are of extreme importance. For a lady as young as of 19 years who had been married for less than 7 months was subjected to such baseless and hurtful allegations would certainly be traumatic. Not just verbal accusations, admittedly, Vandana was subjected to medical tests to verify absence of pregnancy on more than one occasion. If such persistent and continuous cruelty led Vandana to commit suicide in a most gruesome fashion, can it CR.A/721/2003 14/17 JUDGMENT be stated that her husband did not abet such suicide ? It is true that scope of section 306 of the Indian Penal Code is quite narrow. The prosecution has to establish the ingredients required under section 107. The question is, can appellant No.1 not be stated to have instigated Vandana to take extreme step ? 24. Section 113-A of the Evidence Act permits the Court to draw presumption of abetment of suicide once it is shown that within 7 years of marriage, the lady committed suicide on account of cruelty meted out to her by her husband or any of the relatives. In the case of Ramesh Kumar (supra), the Apex Court referring to section 113-A of the Evidence Act, made following observations. “12. This provision was introduced by the Criminal Law (Second)Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives who are charged had subjected her CR.A/721/2003 15/17 JUDGMENT to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn, before the presumption maybe drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - “the other circumstances of the case” used in Section 113-A suggests the need to reach a cause-end-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says - “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” In the present case, it cannot be gainsaid that husband of Vandana doubted her character and fidelity and subjected her to pregnancy tests on more than one occasion and thereby treated her with cruelty. Despite Dr.Bhargav Pandit opining that Vandana is not pregnant, further tests were carried out. All this CR.A/721/2003 16/17 JUDGMENT happened during a short stay that Vandana had with her husband within less than 7 months of marriage. In the present case, therefore, the fact that the appellants treated Vandana with cruelty remains firmly established. Insofar as appellant No.1 is concerned, considering the special facts as discussed above, it will be appropriate to invoke and resort to the permissible presumption under section 113-A of the Evidence Act and conviction of appellant No.1, both under section 306 as well as under section 498-A of the Indian Penal Code must be upheld. 25. Insofar as appellant No.2 is concerned, her role is somewhat diluted. It cannot be denied that she treated Vandana with cruelty. She joined her son in taunting Vandana for the same reasons. Main allegations, however, have been made by the witness against the husband of Vandana. He was the root cause of the entire trouble. He was the one who doubted the fidelity of Vandana. Her mother-in-law at best joined her son in taunting her. Her role, therefore, cannot be seen so serious as to bring the same within the meaning of 'instigation' as required under section 107 of the Indian Penal Code to convict her for abetment of suicide under section 306 of the Indian Penal Code. 26. In my view, therefore, so far as appellant No.2 is concerned, though her conviction under section 498-A of the Indian Penal Code needs to be CR.A/721/2003 17/17 JUDGMENT confirmed, her conviction and sentence under section 306 of the Indian Penal Code cannot be upheld. 27. “In the result, following order is passed: (1)Conviction and sentence of appellant No.1 is confirmed. (2)Conviction and sentence of appellant No.2 under section 306 of the Indian Penal Code is set aside. (3)Conviction and sentence of appellant No.2 under section 498-A of the Indian Penal Code is confirmed. (4)Bail bond of appellant No.2 stands cancelled. She shall,however, have time upto 15th February 2008 to surrender. With the above directions, the appeal stands disposed of. (Akil Kureshi, J.) (vjn)