IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 549 of 2001 with CRIMINAL MISC.APPLICATION No 5903 of 2001 [Suo Motu Proceedings initiated by the learned Single Judge for Enhancement of Sentence] For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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? : NO -------------------------------------------------------------- MOHANBHAI LAXMANBHAI SONI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 549 of 2001 MR AD SHAH for Appellants MS NANDINI JOSHI, APP for Respondent 2. Criminal Misc.Application No. 5903 of 2001 SUO MOTU for Petitioner No. 1 MR AD SHAH for Opponents -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE J.R.VORA Date of decision: 04/03/2002 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. The above numbered Appeal which is filed under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment dated June 25, 2001 rendered by the learned Additional Sessions Judge, Bharuch, in Session Case No. 158/98, by which the appellants are convicted of the offences punishable under Section 498-A and 306 IPC and punished with SI for one year and fine of Rs. 1,000/-, in default S.I. for one month for having committed the offence punishable under Section 498-A IPC and SI for three years and fine of Rs. 1,000/-, in default SI for one month for having committed the offence punishable under Section 306 IPC. We may state that the learned Judge has directed that both the substantive sentences shall run concurrently. 2. The complainant Jagadischandra Chunnilal Soni, is resident of Kalol Town, District Mehsana. The name of his eldest daughter was Naynaben. The marriage of Naynaben had taken place on January 31, 1998 as per the custom prevailing in the caste of the complainant with Lalitchandra who is son of the appellants. The appellants are residents of Bharuch town. After marriage, Nayanaben had come to Bharuch town and was residing with her husband and other members in the joint family of the appellant No.1. On the occasion of first Holy after marriage, the complainant had desired to bring his daughter to Kalol and, therefore, gone to the residence of the appellants but had not found either his daughter or his son-in-law in the house and on inquiry, the appellant No.1 had informed him that both of them had gone to the house of Arvindbhai Vishnubhai Jani, who is also residing in Bharuch Town. As the daughter of the complainant was not in the house of her in-laws, the complainant had waited and after return of Nayna to her in-laws house, he had brought his daughter Nayna on the next day to Kalol town. While the complainant had gone to Bharuch town to bring his daughter to Kalol town, he had found that his daughter Nayna was unhappy. When Nayna was at Kalol town, her husband Lalitchandra had also come to Kalol town on Holy day and stayed at Kalol town on the next day also which was Dhuleti day. The son-in-law of the complainant had thereafter taken Nayna with him to Bharuch on the next day of Dhuleti. On April 13, 1998, Nayna had telephoned complainant at this residence and asked the complainant to come to Bharuch immediately and had also informed the complainant that she was at the residence of Arvindbhai Vishnubhai Jani. Accordingly, the complainant in the company of his wife had gone to Bharuch and after reaching Bharuch, first of all, the complainant had gone to the house of the appellant No.1 but had not found either his daughter or his son-in-law present in the house and, therefore, made inquiries about them. Thereupon, the appellant No.1 had informed the complainant that a quarrel had taken place between him and Lalitchandra regarding separate stay of Lalitchandra from him and, therefore, Lalitchandra and Nayna had gone to the house of Arvindbhai Vishnubhai Jani. Thereupon, the complainant and his wife had gone to the house of Arvindbhai Vishnubhai Jani where Nayna had informed the complainant that the appellants were quarreling with her on trivial issues whereas Lalitchandra i.e. son-in-law had informed the complainant that his desire was to stay separate from the appellants. The complainant and his wife had persuaded Lalitchandra and Nayna to go back to the house of the appellants and accordingly, Lalitchandra and Nayna had gone to the house of the appellants, after which the complainant and his wife had returned to Kalol. After about 8 days, the complainant had telephoned his daughter Nayna and at that time also Nayna had informed the complainant that her mother-in-law and father-in-law were quarreling with her on trivial issues. Being father, the complainant had advised Nayna to tolerate the same. On April 28, 1998 at about 10.30 a.m. a telephonic message was received by wife of the complainant from one Ganpatbhai to the effect that Naynaben had become serious and, therefore, they should come to Bharuch town immediately. At the time, when the telephonic message was received, the complainant was not at his house but was at his shop and, therefore, his wife had conveyed message to him on telephone. On receipt of the message, the complainant had immediately rushed to his house and telephoned one Rasiklal Rana, who was then not available on phone, but the person who had picked up the receiver had informed the complainant that his daughter had committed suicide by hanging. Therefore, immediately the complainant had hired a jeep and gone to Bharuch town in the company of his wife, son and other relatives. In view of the telephonic talk which the complainant had with the deceased, the complainant was convinced that the deceased had committed suicide because she was insulted often and on by the appellants and that the appellants had made her life miserable. Therefore, the complainant had gone to Bharuch Police Station and lodged complaint against the appellants. The investigation into the case was conducted by Mr. Narasinh Ganpatsinh Dodiya, who was then PSI, Bharuch City `A' Division Police Station. The Investigating Officer had held inquest on the dead body of the deceased in the presence of panchas and made arrangement for sending the dead body to Government Hospital for post-mortem examination. The Investigating Officer had also prepared panchnama of place of incident and recorded statements of those who were found conversant with the facts of the case. After postmortem examination, the dead body was handed over to the complainant for performing last rites. On conclusion of investigation, the appellants were chargesheeted of the offences punishable under Section 498-A and 306 IPC in the Court of learned Chief Judicial Magistrate, Bharuch. As the offence punishable under Sections 306 is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Bharuch for trial where it was numbered as Session Case No. 158/98. The learned Judge had framed charge at Exh.17 against the appellants of the offences punishable under Sections 498, 306 IPC. The charge was read over and explained to the appellants who had not pleaded guilty to the same and claimed to be tried. The prosecution had therefore examined (1) complainant - Jagadishchandra Chunnilal Soni, PW-1 Exh.29, (2) Pannalal Jawaharbhai Soni, PW-2, Exh.32, (3) mother of the deceased i.e. Kamalaben Jagadischandra Soni, PW-3, Exh.33, (4) Rameshbhai Tulsibhai Soni, PW-4, Exh. 34, (5) Dr. Ashokkumar Parmanand Gupta, PW-5, Exh.35, (6) Haribhai Sitarambhai Barot, PW-6, Exh.37, (7) Nagjibhai Ambalal Modi, PW-7, Exh.38, (8) Jitendra Thakorlal Brahmbhatt, PW-8, Exh.40, (9) Rasiklal Ratilal Rana, PW-9, Exh. 41, (10) Bhagwatiben Ganpatlal Soni, PW-10, Exh.42, (11) Sureshbhai Laxmidas Mehta, PW-11, Exh. 45, (12) Jagrutiben Bipinchandra Rana, PW-12, Exh.47, (13) Arvindbhai Vishnubhai Jani, PW-13, Exh.48, (14) Naransinh Ganpatsinh Dodiya, PW14, Exh.49 and (15) Kiritsinh Surubha Zala, PW-15, Exh.53 to prove its case against the appellants. The prosecution had also produced documentary evidence, such as, complaint filed by Jagdishchandra Chunnilal Soni at Exh.30, postmortem notes of the deceased prepared by Dr. A.K. Gupta, at Exh.36, inquest panchnama at Exh.39, panchnama of place of incident at Exh.46, etc. in support of its case against the appellants. After recording of evidence of prosecution witnesses was over, the learned Judge had explained to the appellants the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure. In their further statements, the defence pleaded by the appellants was that they had not meted out any cruelty to the deceased and that as the deceased was sentimental and as she could not stay separate from the appellants with her husband because of the persuasion by her parents she had committed suicide of her own. 3. In support of the defence, the appellants had examined (1) Vanmalidas Shankerdas Motiyar, DW-1, Exh.58, (2) Bhanvarlal Narsinhji Soni, DW-2, Exh.61, (3) Misrimal Voridas Soni, DW-3, Exh.62, (4) Ratilal Umedbhai Soni, DW-4, Exh.63, (5) Pravinaben Kamlesh Soni, DW-5, Exh.65, (6) Ganpatbhai Mohanlal Soni, DW-6, Exh.66, (7) Lalitchandra Mohanbhai Soni, DW-7, Exh.89 and (8) Jugraj Mithalal Soni, DW-8, Exh.93. Over and above examining the defence witnesses, the appellants had also produced letters written by the deceased to her husband at Exhs. No. 67 to 85 and submitted written arguments for the consideration of the Court. On consideration of evidence adduced by the parties and after hearing the learned counsel for the parties, the learned Addl. Sessions Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Nayna had committed suicide on April 28, 1998 between 10.30 a.m. to 11.00 a.m. in the house of the appellants by hanging and cause of her death was asphyxia following hanging. The learned Judge noticed that the deceased had committed suicide within three months of her marriage with the son of the appellants and that this was a disturbing feature of the case. The learned Judge referred to the evidence of parents of the deceased as well as that of Rameshbhai Tulsibhai Soni, PW-4, Exh.34, Rasiklal Ratilal Rana, PW-9, Exh.41 and concluded that the appellants had meted out cruelty to the deceased within the meaning of Section 498-A IPC. The learned Judge further deduced that the cruelty which was meted out to the deceased by the appellants was wilful conduct on their part and it was of such a nature as to drive the deceased to commit suicide and therefore the appellants had committed an offence punishable under Section 306 IPC. In view of the above referred to conclusions, the learned Judge was of the opinion that it was established by the prosecution beyond reasonable doubt that the appellants had committed the offences punishable under Sections 498A and 396 IPC. The learned Judge had thereafter heard the appellants about the question of sentence and has imposed the sentence referred to above by judgment dated June 25, 2001 giving rise to the present appeal. 4. Rule-2 of Chapter-I Part-I of the Gujarat High Court Rules, 1993, provides that a Single Judge may dispose of an Appeal against conviction in which only a sentence of fine or imprisonment for a period not exceeding seven years with or without fine has been imposed. Therefore, the appeal was placed for admission hearing before the learned Single Judge of this court. The appeal was ordered to be admitted but prayer for bail was rejected by the learned Single Judge of this Court by a speaking order dated July 23, 2001 running into 16 pages. The learned Judge was also of the opinion that punishment of three years' simple imprisonment imposed on each of the appellants was inadequate and that sufficient punishment as provided in Section 306 IPC ought to have been imposed on the appellants having regard to the facts of the case and therefore while admitting the appeal, the learned Single Judge exercised suo motu powers and issued notice to the appellants for enhancement of sentence. The suo motu proceedings for enhancement of sentences is numbered as Criminal Misc. Application No. 5903/2001. Feeling aggrieved by the order of the learned Single Judge refusing to grant bail, the appellants had preferred Special Leave to Appeal (Criminal) No. 3580/01 before the Supreme Court. The Supreme Court did not entertain Spl. Leave Petition but observed that the matter pending before the High Court should be dealt with preferably within a period of eight months. Further the Supreme Court had reserved liberty to the appellants to mention the matter before the Hon'ble the Chief Justice for appropriate directions and it was observed that if the matter was not disposed of within stipulated time, the appellants would be at liberty to apply for bail before the High Court. Subject to certain observations, Special Leave Petition was disposed of by the Supreme Court vide order dated October 8, 2001. Rule-2 of Chapter-I Part-I of the Gujarat High Court Rules, 1993, inter alia, provides that a Single Judge may dispose of an appeal against conviction in which only a sentence of fine or imprisonment for a period not exceeding seven years with or without fine has been imposed except (i) where a notice of enhancement of sentence has been issued where the accused has been sentenced for a term of two years or more and (ii) where a notice has been issued to show cause why his conviction should not be altered to one of an offence punishable with death or imprisonment for life. In view of exception (i) the Office has placed the appeal for disposal before the Division Bench and having regard to the observations made by the Supreme Court, we have taken up the appeal as well as suo motu proceedings for final disposal. 5. Mr. A.D. Shah, learned counsel for the appellants submitted that the prosecution has failed to prove cruelty as contemplated by Section 498-A IPC and, therefore, the conviction of the appellants under section 498-A and 306 IPC is erroneous. The learned Counsel emphasised that the evidence on record shows that there was some dissatisfaction to deceased Nayna in respect of household work as well as customs to be observed in the family but there is no evidence of either physical cruelty or mental cruelty to her and, therefore, the conviction of the appellants under Section 498A IPC should be regarded as illegal. It was pointed out that the evidence of Arvindbhai Vishunubhai Jani, PW-13, Exh.48 would show that deceased Nayna and her husband wanted to stay separate but that her desire to settle down separate from the appellants was not liked by her parents and as she was sentimental she had committed suicide but she had not committed suicide because of the alleged cruelty meted out to her by the appellants. After referring to the evidence of Jagdishchandra Chunnilal Soni, PW-1 Exh.29, the learned counsel pleaded that deceased Nayna was dissatisfied regarding household work, etc. but the said witness has failed to specify the nature of disputes and, therefore, his evidence does not help prosecution in proving charge of cruelty levelled against the appellants. Similarly, after referring to the evidence of Kamalaben Jagdishchandra Soni, PW-3 Exh.33, the learned counsel emphasised that deceased had complained to Kamalaben that there were quarrels in the family and those quarrels were pertaining to dispute between father and son (husband of deceased Nayna) as husband of deceased Nayna was determined to stay separate but her evidence does not establish that the appellants had meted out any cruelty to the deceased. What was urged was that the evidence of Kamalaben clearly reveals that when Naynaben had come to Kalol on Holy occasion, she had talked about staying separate from the appellants and when Lalitchandra (the husband of deceased Nayna) had come, he had also talked about staying separate but the witness had advised that other elder brothers should stay separate from the appellants but not the deceased and Lalitchandra and as deceased Nayna was sentimental, she had committed suicide of her own and that no cruelty was meted out to her at all by the appellants. It was claimed on behalf of the appellants that the parents of deceased Nayna had persuaded her and her husband to stay in the joint family on April 14, 1998 whereas the incident of suicide by deceased Nayna had taken place on April 28, 1998 and as no evidence is led by the prosecution to indicate that the quarrels had continued to take place in respect of household work between April 14, 1998 to April 28, 1998, the charge of cruelty levelled against the appellants should be disbelieved. The learned counsel referred to the letters produced on the record of the case in detail and contended that the letters produced suggest that deceased was short tempered, dominating and carrying an idea to put an end to her life if her desires were not fulfilled and, therefore, in view of the failure of the prosecution to establish offence under Section 498-A, the appeal should be allowed. Further, it was stated that as the prosecution has failed to establish cruelty as contemplated by Section 498-A IPC, the learned Judge of the Trial Court was not justified in raising presumption that the appellants had abetted suicide by the deceased and, therefore, the conviction of the appellants under Section 306 should be set aside. In support of his submissions, the learned Counsel placed reliance on (1) STATE OF GUJARAT vs. SUNIKUMAR K. JANI, 1996(2) GLH 5, (2) INDRASING M. RAOL vs. STATE OF GUJARAT, 1999 (2) GLH 596, (3) ARVIND SINGH vs. STATE OF BIHAR, 2001 SCC (Cri) 1148, and (4) BHARAT K. GUPTA vs. ARUN KUMAR AND ANOTHER, 2001 SCC (Cri) 1517. Dealing with Suo Motu proceedings issued by the High Court for enhancement of sentence, the learned Counsel for the appellants submitted that the letters Exhibits 75, 77, 78, 79, 80 and 81 disclose frame of mind of the deceased to the effect that if things desired by her did not take place, she might commit suicide and as the appellants had never demanded any dowry from the deceased or her parents and as the aspect of mental cruelty, if any, had arisen due to social customs prevailing in the family and the strata of the society to which the appellants belong, the sentence of three years imposed for the offence punishable under Section 306 should not be considered manifestly inadequate or too lenient. In support of this plea, learned counsel placed reliance on the decisions (i) SHIV GOVIND vs. THE STATE OF MADHYA PRADESH, AIR 1972 SC 1823, (ii) NARESH KUMAR AND ANOTHER vs. STATE OF HARYANA, 1994 SCC (Cri) 502, (iii) STATE OF A.P. vs. KUNA SATYANARAYANA, (1998) 8 SCC 268. 6. Ms. Nandini Joshi, learned APP for the State argued that the evidence of (1) Jagdishchandra Chunnilal Soni, PW-1 Exh.29 read with evidence of (2) Pannalal Jawaharbhai Soni, PW-2 Exh.32, (3) Kamalaben Jagadischandra Soni, PW-3, Exh.33, (4) Rameshbhai Tulsibhai Soni, PW-4, Exh.34, (5) Rasiklal Ratilal Rana, PW-9, Exh.41, and (6) Arvindbhai Vishnubhai Jani, PW-13, Exh.48, establishes beyond reasonable doubt that the appellants were quarrelling with the deceased and taunting her constantly regarding household work to be performed by her as well as observance of veil and therefore it cannot be said that the learned Judge of the Trial Court committed any error in holding that the appellants had meted out cruelty to the deceased within the meaning of Section 498-A IPC. Elaborating her submissions, the learned counsel stressed that to taunt a newly wedded bride for observing custom of veil must be regarded as a cruelty to her in this 21st century and, therefore, it is wrong to say that the deceased was not meted out any cruelty by the appellants. It was urged by the learned APP that the evidence of the parents of the deceased which gets corroboration from other evidence on record shows that the appellants were quarrelling with the deceased regarding household work to be performed by her and were also taunting continuously which had made her life miserable, as a result of which, she had committed suicide out of desperation and, therefore, the well founded conviction of the appellants under Section 498-A read with 306 IPC should be upheld by the Court. The learned counsel further pleaded that the letters which have been produced by the defence on the record of the case do not indicate that either the deceased was dominating or that she was obstinate as is sought to be contended by the learned counsel for the appellants and in absence of evidence indicating tendency on the part of the deceased to commit suicide in past, the finding recorded by the learned Judge that she had committed suicide because of cruelty meted out to her should be upheld. The learned counsel contended that the Legislature has introduced Section 113-A in the Indian Evidence Act with a specific purpose and having regard to the circumstances of the case the presumption which is raised by the learned Judge of the Trial Court under the said provision cannot be regarded as illegal. What was claimed on behalf of the State was that the deceased who was a young bride and whose betrothal with the son of the appellants had continued for a long time, was driven to commit suicide by the appellants because of their wilful act amounting to cruelty and, therefore, the appeal should be dismissed. Dealing with the question of enhancement of sentence, the learned APP pointed out that the punishment imposed on the appellants under Section 306 cannot be regarded as sufficient by any standard in view of the strict provisions of Section 306 IPC and as there is rise in crimes against women and more particularly young brides, the punishment imposed on the appellants should be enhanced to RI for 7 years. 7. We have considered the submissions advanced at the Bar and reappreciated the whole evidence on record. The fact that the marriage of the deceased with the son of the appellants had taken place on January 31, 1998 and that the deceased had committed suicide by hanging in the house of the appellants on April 28, 1998 i.e. within three months of the marriage is not in dispute. The special feature of this case is that there is no allegation of cruelty levelled by the prosecution against the husband of the deceased but what is claimed by the prosecution is that the appellants who were father-in-law and mother-in-law respectively of the deceased had meted out cruelty to her, as a result of which she had committed suicide by hanging. 8. Section 498A IPC deals with cruelty by husband or relatives of husband of a woman and reads as under : " 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." 9. A bare reading of the above referred to provisions makes it manifest that the definition of cruelty contained in Explanation consists of two