IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 207 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed : to see the judgements? 2. To be referred to the Reporter or not? : 3. Whether Their Lordships wish to see the fair copy : of the judgement? 4. Whether this case involves a substantial question : of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : --------------------------------------------------------- INDRASING M RAOL.........Appellant. Versus STATE OF GUJARAT........Respondent. -------------------------------------------------------------- Appearance: MR NITIN M AMIN for the Appellant MR ST MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 23/07/1999 ORAL JUDGMENT The appellant (original accused) came to be convicted of the offence punishable under Sec. 498-A of Indian Penal Code by the then learned Additional Sessions Judge, Ahmedabad on 11th March, 1988, in Sessions Case No. 99 of 1987 and sentenced to suffer Rigorous Imprisonment for a period of three years and a fine of Rs.1,000/- i/d to suffer further Rigorous Imprisonment for a period of three months. He has, therefore, filed this appeal challenging the legality and validity of the order of conviction. In order to appreciate rival contentions of the parties, necessary facts may, in brief, be stated. 2. Kailasba who committed suicide was the daughter of Motiba Pratapji Biholla. She married the appellant in the month of February, 1986. At that time, the appellant was serving in Army at Meerut in U.P. After solemnization of the marriage, Kailasba continued to stay at Ahmedabad with her mother, while the appellant went back to Meerut. It appears that the appellant was trying for his transfer to Ahmedabad and it was also the desire of Motiba that her daughter Kailasba should stay with her for sometime. Around October, 1986, the appellant succeeded in getting himself transferred from Meerut to Ahmedabad. Initially both the appellant and Kailasba started to reside together at the place of the appellant's brother-in-law in Ranip at Ahmedabad. Sometime thereafter, both shifted to the premises taken on lease by the appellant in Military Camp area in Ahmedabad. From 4th March, 1987, the appellant and Kailasba hired Room No.405 in Laxminagar in Ahmedabad and started to reside therein. The appellant, according to the case of the prosecution, was not treating Kailasba well. Often he was harassing, tormenting, torturing and agonising both physically and mentally. To see that his daughter became happy and might not have any problem, or unrest or troubles, Motiba paid Rs.3,000/-, over and above the ornaments, valuable articles & things given and Rs.5,000/- in cash paid by way of Chanlla. However greedy appellant resorting to coercive measures continued to demand more and more dowry. The hot-headed appellant continued to excruciate Kailasba savagely as a result, she became just a bag of bones and lost her sang-froid. Harmony, love, affection, peace were found foreign to her. Whatever good she had dreamt was broken into bits, because of cruelty and continuous despotic treatment. For her life was not worth-living, as her chagrin & miseries knew no bound. She bred the idea to end her life, the only option left. A few days prior to 7th March, 1987, the appellant and Kailasba had been to the place of Motiba in Meghaninagar. The appellant went into another room. Taking the chance, Kailasba informed Motiba -her mother that the appellant was tigerishly harassing her taking liquor, and for her, it was impossible to bear, any longer. Around 12-00 mid night on that day, the appellant while leaving for his house asked Kailasba to go with him, but dejected Kailasba was not willing. Impudent & Military minded appellant lost his temper. He dragged Kailasba out of the house and started to beat her indiscreetly giving kick & fist blows. Lilaben and others who rushed to the scene, hearing uproar rescued Kailasba. Thereafter, on 7th March, 1987 around 7-30 a.m. at the appellant's house in Laxminagar, Kailasba poured Kerosene on her and set herself ablaze and committed suicide. Initially, Police having come to know about the incident treating the same to be the accidental death, made the entry accordingly in police record, but thereafter on the same day at 4-00 p.m., when Motiba lodged the complaint with Shahibaug Police Station, F.I.R. came to be registered relating to the offences punishable under Secs. 498-A and 306 of Indian Penal Code, alleging above stated case in short. After the Police investigation was over, the Police Officer of Shahibaug Police Station Ahmedabad filed the chargesheet against the appellant qua aforesaid offences, in the court of Metropolitan Magistrate, Ahmedabad. As the learned Metropolitan Magistrate was not competent to hear and decide the case, he committed the same to the City Sessions Court at Ahmedabad. It came to be registered as Sessions Case No. 99 of 1987. The then learned Additional City Sessions Judge assigned with the case framed the charge at Ex.1 initially relating to the offences mentioned in the chargesheet, but lateron he amended the charge adding the charge qua the offence punishable under Sec.304-B of Indian Penal Code. Appreciating the evidence produced before him and considering rival submissions, the then learned Additional City Sessions Judge reached the conclusion that the prosecution had failed to establish the charge relating to the offences punishable under Sec.306 and 304-B of Indian Penal Code; but succeeded in establishing the charge relating to the offence punishable under Sec. 498-A of Indian Penal Code. He, therefore, held the appellant guilty of the offence u/s. 498-A I.P.Code alone, and convicted and sentenced him as aforesaid. It is against that order of conviction, the present appeal is filed challenging the legality and validity thereof. 3. Mr. Amin, the learned advocate representing the appellant assailing the judgment and order of the lower court contends that the evidence on record is not sufficient to hold the appellant guilty even of the offence punishable under Sec. 498-A of Indian Penal Code.The case hinges on the evidence of Motiba Pratapji Biholla (Ex.10), Lilaben Jaikishandas (Ex.14) and Manusinh Pratapsing -the brother of the deceased (Ex.15). When the evidence of all the three witnesses, if perused with care, it would appear clearly that the prosecution has failed to bring the guilt home to the appellant. Their evidence inspires no confidence & suffers from inherent improbabilities. The learned Judge prowled about for imaginary reasonings for holding the appellant guilty. Only on one incident alleged to have occurred 15 days prior to the incident at the place of Motiba during night time, the learned Judge, having been impressed much, was swayed away with the same along with three letters written by the appellant and held the appellant guilty. The assessment of the evidence made is mis-conceived, and proper perspectives are overlooked. One cannot be unmindful about the tendency of the nearest relatives of the parents' side of the woman committing suicide to blindly assume mischief on the part of and suspect her husband and her in-laws, and make false accusations of cruelty. It would not therefore be just to assume guarantee for the truthfulness of such accusation. In reply to such contention, Mr. Mehta, the learned AGP supports the order of the lower court mainly on those reasons assigned by the learned Judge, and submits that the learned Judge has not at all mis-read the evidence. He also submitted that the Court has not to overlook the anxiety that is reflected by the introduction of Sec.498-A I.P.Code. Becoming harsh & austere, the inclination of the Court must be to inflict severe punishment if necessary by ignoring some infirmities, because the prosecution is not expected to prove the charge with arithmatical accuracy and certainty. 4. It must be remembered that with effect from 25th December, 1983, Sec. 498-A I.P.Code has come into force for firmly curbing the cruelty or harassment to the women i.e. weaker spouses and providing adequate protection to them and to combat the menace of dowry death. It is also the object of the provision that the husband or his relative subjecting the woman to cruelty or harassment are tracked down and cracked down on. If the charge is proved leading credible evidence, the Court has also to frown on and without being compassionate throw the book at the wrong doer (accused). If the prosecution fails to establish the charge, the Court will be helpless as in that case law ordains acquittal. What is envisaged by Sec.498-A is required to be deciphered first. 5. The husband or his relative if subjects the woman to cruelty is made punishable but every act termed as cruelty or harassment would not fall within the ambits of Sec.498-A. The meaning of cruelty is given vide explanation to Sec. 498-A. It means wilful conduct of such a nature as is likely to propel, or goad or compel the woman to commit suicide or to cause grave injury or danger to life, limb or health. If the woman is subjected to harassment with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or coercing her & her relative owing to failure on her or her relatives' part to meet such demand, the same would also amount to cruelty. 6. The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498-A therefore, envisages intention to drag or force the woman to commit suicide by unabated, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record. 7. The word " harassment " is not defined in Sec.498-A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or affliction, or other unpleasentness, or grave annoyance, or troubles. In short what can be said is that Sec.498-A will not come into play in every case of harassment and/or cruelty. Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a view to force the wife to end her life or fulfil illegal demands of her husband or in-laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmatical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and pointing to the guilt of the accused. 8. It should be noted that the learned APP after perusing the evidence on record fairly concedes that except the alleged incident of boisterously & unsophisticatedly pulling Kailasba out and then affronting, as well as afrightning and beating her by kick and fist blows at mid-night about 15 days prior to the date of incident, happened in the courtyard of Motiba, and copies of 3 letters written by the appellant, there is no other evidence to show that Kailasba was subjected to incessant cruelty or harassment with the intention to drive her to commit suicide. In this regard, the contention of the appellant is that Motiba, and her son -Manusinh the queer-fish have, after Kailasba committed suicide, put the boot in, guessing whatever worst they could against the appellant. The evidence of the above named three witnesses who have testified to the facts of the alleged solitary incident is required to be pored over. It may first be clarified that the evidence of the prosecution is not to be viewed with doubt though in such cases, it is all the time difficult to get unbiased evidence, but the same is required to be tested on the anvils of objectivity relativeness and realism as far as possible for deciding the truth or otherwise. Hence the approach of the Court for drawing just conclusions must not be tainted with personal feelings, prejudices, beliefs, bias, ideology, notions, sympathies, or the social philosophy, or public opinion, or study reports, but must be judicious and balanced, and hence the Court has also to survey the picture of domestic life of man & woman as a whole before any conclusion is drawn. Firstly having regards to rival contentions, it is to be seen whether the prosecution has leading credible evidence succeded in establishing the case about happening of the solitary incident. 9. Motiba (Ex.10) has not stated in her F.I.R., though she preferred to state other facts in details, that between the two, there was no good relations and often the appellant was beating and harassing Kailasba. At the time of her grilling cross-examination, Motiba had to admit, that the appellant was, on the contrary, maintaining Kailasba conscientiously well; he was not beating Kailasba and even electric shocks were also not given; and when both were residing in Military Camp, the conduct of the appellant with Kailasba was quite congenial & decorous. However in the last resort she has also stated about inhumanely treatment referring about illtreatment viz: beating, taking liquor, harassment, torturing, and tormenting for more dowry. When Motiba has made such cross-cutting statements about cruelty and has modulated the evidence by necessary improvements to suit the case of the prosecution, and have the order of conviction, her evidence being incredible cannot be accepted without any independent corroboration. 10. No doubt, in support of her say, Lilaben Jaikishandas (Ex.14) and Manusinh Pratapsing (Ex.15) are examined, but their evidence also appears to be fishy. It is the case of the prosecution that Lilaben was with religious rites adoring the Goddess in nearby Khodiyar Ma Temple.The female devotees had formed a " Bhajan Mandal " called Khodiyar Mandal of which Motiba & Lilaben were the members. At mid-night Lilaben was on the Otta of the temple, making wicks. At that time, hearing the shouts & brouhaha Lilaben Jaikishan rushed there and saved her. She has no doubt supported the prosecution but her evidence cannot even be accepted reluctantly, or flinchingly. Ordinarily, no one would be in the temple at 12-00 mid-night unless there is some ceremony or religious occasion. When at odd hours, the witness claims his/her presence, it is for the witness or the prosecution to explain why he/she was there at that place at odd hours. Lilaben has not explained as to why she was at the temple at odd hours. The wicks are made during day time or at the most upto 9-00 p.m. as the temple is closed by the time. It was not the day of Gokul Ashtami, nor Navratri or Diwali. There was no special occasion or ceremony. If at all Bhajan (panogyric songs) was held for some special reason, nothing is elucidated about the special reason. Further Bhajan if at all was held, it would have been attended by many; and few of them would have rushed to the scene of incident, but evidence is silent on the point. The pretext of Bhajan for justifying the presence of Lilaben can be said to be after-thought. In fact, there is no explanatory evidence. Her shrewd abstinence from offering explanation clearly evinces that she was not present and she did not see the alleged incident. She is a got up witness. The fact that she made improvements can not also be overlooked. It may be stated that Lilaben has stated that when she tried to rescue, she was given a push as a result of which, she fell down and sustained injuries, but there is no corroborative evidence on record supporting her say about sustainment of injury. The Investigating Officer Vikramsinh Jivansinh, in his deposition (Ex.20) has made it clear that Lilaben did not state in her statement before him that she had inquired about the married life of Kailasba 15 days prior to the incident, and Kailasba, at that time informed her about cruel treatment on account of dowry. Lilaben also did not state before him that, 15 days prior to the incident, when during mid-night, accused insisted Kailasba to go with him, she was in the temple owing to Bhajan. She has also not stated about the push having been given to her, and she having sustained the injury because of the push. When she makes such improvements in her deposition before the court, the same show departure from what she stated before the Police indicating that her testimony is not worthy of credence. It may be noted that Manusinh -the brother of Kailasba does not support the presence of Lilaben and that is also the additional circumstances to doubt her evidence. 11. Likewise the evidence of Manusinh Pratapsinh -the brother of Kailasba also inspires no confidence. He has, no doubt, attempted to support his mother Motiba & prosecution stating that the appellant, when he was at Meerut, used to write letters to his sister Kailasba using unparliamentary or disgraceful language and was suggesting that he would be marrying again. He knows because he was asked by Kailasba to read over the letters because Kailasba was not in a position to read, though she had studied upto Std.VII. 12. Ordinarily, a girl or a woman would not give the letters received from her husband to her brother or someone else especially when she has studied upto Std.VII and language employed is known to her. Kailasba was able to read the letters and there was no necessity to take the help of her brother as Gujarati language used was known to her. It may be noted that about alleged cruelty, this witness has admitted that he did not have direct talk with Kailasba. He knew about jeremiad over hearing the talks took place between her mother and Kailasba. Reading his evidence as a whole, it can be said that he does not have personal knowledge about alleged cruelty or harassment. He used to guess from the talks he at times used to over hear. His mother -Motiba also did not, though being family matter, formally, informed him. He read 50 letters and he thought it fit to give only 3 letters to the Police as rest were found not useful. About the 3 letters, I will discuss herein below at the proper stage, but the fact of selectively keeping other letters behind curtain suggests that the appellant did not use filthy or offending language or tarts but after Kailasba committed suicide, this witness being the brother was got on his nerves and going out of his mind, he having ill-will to damage, wriggled into contrived revenge and produced xerox copies of only 3 selected letters of his choice without producing in court or showing originals thereof to Police. The evidence of this witness also, because of such reason, and modulation that can be spelt out, appears to be fishy and incredible. The same cannot be accepted without independent corroboration. 13. According to Lilaben, she had paid Rs.3,000/= to Motiba from the funds of Khodiyar Mandal so as to pay the same to the appellant, as the appellant was often insisting for more dowry. The Mandal is keeping the accounts but no such account about payment of Rs.3,000/- is produced. When available evidence is not produced, the court is entitled to infer everything against this witness. It is pertinent to note that according to Motiba, she is having monthly income of Rs.50,000/-, as she has invested pot of money and is having accounts with five different Banks. She thus wants to show that her financial condition is sound. If that is so, there was no need for Motiba to borrow Rs.3,000/- from the Khodiyar Mandal. Both thus make diametically opposite statements and question each other's truthfulness. 14. It is the submission of Mr.Mehta, the learned APP that all the three witnesses are supporting each other and thus there is corroboration. The contention cannot be accepted. In law one infirm witness if supports the another witness of the same brand, it is no corroboration in the eye of law. It is also so held by the Supreme Court in Muluwa Vs. State of M.P. AIR 1976 SC 989 that evidence of an infirm does not become reliable merely because it has been corroborated by other witnesses of the same brand. The evidence of the three infirm witnesses on which the prosecution relies on, is for the aforesaid reasons, not worthy of credence, it is effervescing with doubts. When thus it is sounding unreliability, the Court has to echo it's disapproval and hold that happening of the incident is not free from doubt. It is the case of the prosecution that Ambalal also saw the incident at midnight going to the scene of incident. He is not examined. Manusinh says that about 15 others had assembled. One of such persons is also not examined and no reason is assigned for such omission. From the evidence of Motiba, it appears that about 40 other persons (not members of 'Bhajan Mandal') saw the incient, and she knows the names of all those persons. When asked, she made it clear that she was to examine no one. Such omission for no good cause sounds mystery, fabrication and untrustworthiness. The contention that aforesaid 3 witnesses support each other must, therefore, fail. 15. Accoring to Motiba, some one riding over the cycle in the morning around 7-30 a.m. had come to her place and informed about suicidal incient. She & her son Manusinh went there. The Polic officer had reached there. He had made the entry about accidental death. As per the case of the prosecution, Motiba & Manusinh were knowing well about cruel treatment being meted out to deceased Kailasba since long incessantly. If that was so, both might not have remained silent till the F.I.R. was lodged at 16-00 hours or thereafter. It appears from the evidence of Investigating Officer (Ex.20) that Motiba immediately left seeing the dead body, and when he was leaving recording statements of neighbours, Manusinh & his uncle Bhikhubha were there. They also did not disclose the real fact. Their silence till lodging of F.I.R. suggests that their say is questionable and implausible. As made clear by Manusinh, one week after the complaint was lodged, he saw the letters of appellant. The Investigating Officer says that he inquired whether he was having any letter. Manusinh might have therefore checked the bags etc. of Kailasba and found out the letters. He must have then read the same and decided which of the 50 letters found should be selected for giving the same to the Police. Manusinh was not ready to show & give original letters. Manusinh has also disclosed that on 4-3-'87, both the appellant