IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 825 of 1992 WITH CRIMINAL APPEAL NOS.175 AND 176 OF 1993. For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT AND MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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 -------------------------------------------------------------- BHANUBEN REVANDAS PARMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR YU MALEK for Petitioners MR BD DESAI LD APP for Respondent State -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT and MR.JUSTICE J.R.VORA Date of decision: 01/02/2000 ORAL JUDGEMENT (Per; H.R. Shelat, J.) Bhanuben Revandas Parmar and Mahendra Revandas Parmar, Original accused Nos. 4 and 5 were tried of the offences punishable under Sec.306, 498-A and 302 of the Indian Penal Code, by the then learned Additional City Sessions Judge, in Sessions Case No.387/89 on his file, and Bhanuben Revandas came to be convicted qua offence punishable under Sec. 306 only, while Mahendra Revandas came to be convicted of the offences under Sections 306 and 498-A of the Indian Penal Code. Consequently, Bhanuben Revandas came to be sentenced to three years rigorous imprisonment and fine of Rs.500/- in default rigorous imprisonment for 3 months more qua offence punishable under Sec.306 of the Indian Penal Code and Mahendra Revandas Parmar came to be sentenced to rigorous imprisonment for two years and fine of Rs.1000/- in default rigorous imprisonment for six months of the offence punishable under Sec.498-A of Indian Penal Code and rigorous imprisonment for five years and fine of Rs.2000/- in default rigorous imprisonment for one year more qua the offence punishable under Sec.306 of I.P.C., Bhanuben Revandas came to be acquitted of the offences punishable under Sections 498-A and 302 I.P.C. while Mahendra Revandas came to be acquitted of the offence punishable under Sec. 302 I.P. Code. Rest of the four accused are acquitted of the of the offences punishable under Sections 302, 306 and 498-A of the I.P. Code. Being aggrieved by the said order of conviction and acquittal, Bhanuben Revandas Parmar and Mahendra Revandas Parmar who are brother and sister, have preferred Criminal Appeal No.825/92. While rest of the two appeals are preferred by the prosecution. In Criminal Appeal No.175/93, the prosecution prays for enhancement of the sentence inflicted, while in Criminal Appeal NO.176/93, the prosecution challenges the acquittal and prays for conviction qua the offence punishable under Sec. 302, 306 and 498(A) of the Indian Penal Code. 2. Necessary facts may in brief be stated. Ashok Revandas, Rameshkumar Revandas, Rajubhai Revandas and Mahendra Revandas Parmar are the brothers and original accused Nos.1, 2, 3, and 5, while Bhabuben Revandas Parmar - original accused NO.4, is their sister and Manekben Revandas Parmar original accused NO.6 is their mother. Two years prior to the date of incident Mahendra Revandas (Original Accused No.5 - Appellant NO.2 in Criminal Appeal NO.825/92) married Gitaben (now deceased), the daughter of Balubhai Shankarbhai. After the marriage, both were residing along with other accused in Ambedkarvas, Dariyapur in Ahmedabad. Initially their marriage life was brooming over with pleasure, but by the passage of time whatsoever may be cause, dissention between the two arose. The aforesaid accused were then ill-treating, harassing, taunting and torturing Gitaben persistently, with the result, she was not happy and her life turned to be hellish. Once her maternal aunt left Gitaben at her Natal house informing that she was not wanted. Since then Gitaben was residing with her parents. After about six months, attempts to settle the discordance that had arisen between the two, were made. Jyoti-Sangh, renowned social institution sincerely trying its best to solve social problems of the women was then moved where attempts to settle the dispute was made, but it seems no viable solution could be worked out. Hence, Gitaben continued to reside with her parents. Thereafter, Mahendrakumar, her husband took her to his place directly from Flour Mill where Gitaben had gone to take the grits. Shortly thereafter, on 28th May, 1989, at 7-00 a.m. Gitaben at her in-laws' place poured kerosene on her person and set her ablaze. She was then taken to the hospital for treatment. The Doctor found 90% burns on her person. The police was informed and parents of Gitaben were also informed. On receipt of a message when her father going to the Hospital questioned what the mater was, Gitaben informed her father that in the morning at 2-00 a.m., her Brother-in-laws (Accused Nos.1,2 and 3) had beaten her by kicks and fists blows obsessed with fetishism. She took very seriously ill as the behaviour of her in-laws was incivil and rude. In the morning at 7-00 a.m., therefore she being sentimental went into the kitchen and poured kerosene on herself and set her ablaze. Her father, then lodged the complaint with Dariyapur Police Station. The Police Officer of that Police Station, then, took the investigation on hand, and requested the Executive Magistrate to record the Dying Declaration of Gitaben. He sent the things he had seized to Forensic Science Laboratory for analysis. On receipt of the report from the Forensic Science Laboratory and also Post-mortem Note from the Doctor, a Chargesheet against all the above stated accused relating to the aforesaid offences came to be filed in the Court of the Metropolitan Magistrate, Ahmedabad. The learned Magistrate of that Court was not competent to hear and decide the case. He, therefore committed the same to the City Sessions Court at Ahmedabad which came to registered as Sessions Case NO.387/89. The same was then assigned to the then learned Additional Sessions Judge, for hearing and disposal in accordance with law. The learned Addl. City Sessions Judge, framed Charge at Ex.2 against the accused to which the accused pleaded not guilty and claimed to be tried. The prosecution, led necessary evidence. Considering the evidence on record, the learned Judge found that the prosecution succeeded in establishing the charge qua offence punishable under Sec. 306 and 498-A of I.P.C. against the above stated two accused namely Bhanuben Revandas Parmar (Sister-in-law of Gitaben) and Mahendra Revandas Parmar (Husband of Gitaben). He, therfore, convicted and sentenced both the accused as aforesaid on 27/8/92; and acquitted them and other four accused as aforesaid. It is against that order of conviction and acquittal, these three appeals have been filed. 3. Mr. Y.U. Malek, learned advocate representing the accused submits that the prosecution has not come forward with true version. The story put forth by the prosecution is not probable and the same is suffering from glaring infirmities. On dying declaration, no doubt, the prosecution relies on much, but the same is not beyond suspicion. The father, mother and grad-mother of the victim - Gitaben, were in-fact not supporting, but the learned judge has erroneously appreciated the evidence, and misconstruing the same, reached the faulty conclusions. When the evidence is considered in its entirety, one would definitely be inclined to believe that the evidence adduced by the prosecution is fishy, and after the incident of accidental death, the police as well as the nearest relatives of Gitaben, joining hands made out a case so as to involve all the accused and filed the complaint, pursuant to the same, investigation on that line to justify the same was made. He then draws out attention to the different material infirmities on record, so as to show to what extent falsehood in evidence has taken root and spread over the entire case is hard to fathom. 4. In reply to such contention Mr. B.D. Desai, learned A.P.P. submits that atrocities on women and domestic violence by in-laws are going berserk day-by-day. It is the demand of the time that the Courts must now heavily come down upon such accused who torture, harasse and illtreat the daughter-in-law or women the Weaker Section in the families. The prosecution's evidence is not fishy, the same is sufficient in the eye of law, wherefrom irresistable and inescapable conclusions in favour of the prosecution are possible and not favouring the defence. On the basis of the Dying Declaration and other evidence already led, the learned Judge was perfectly right in convicting the aforesaid two accused, but was not right in acquitting all the six accused. He, therefore, urges to dismiss the appeal being Criminal Appeal No.825/92 and allow rest of the two Appeals and pass exemplary order, so that in the society it may have deterrent effect. 5. Before we proceed it may be mentioned that Mr. Malek, the learned advocate representing the abovestated two accused at this stage tenders the Death Certificate, and submits that Mahendra - husband of the victim-Gitaben died on 25th March, 1998. The Death Certificate is taken on record. As Mahendrakumar has died during the pendency of these appeals and neither of his heirs has appeared to proceed with Criminal Appeal No.825 of 1992, all the three appeals abate so far as the same relates to Mahendrakumar Revandas Parmar. We have, therefore, to confine the discussion so far as it relates to Bhanuben, but while referring the evidence, our discussion may cover the issue relating to Mahendrakumar which would assume academic importance. 6. Whenever in the society such incidents qua the women or Weaker Section in the House amounting to domestic violence, happen, the Courts are no doubt deeply concern, and we are of the firm view that such agony menace and atrocities on the women are required to be curbed, coming down heavily upon the wrong doers; but Court can pass harsh order only if the prosecution succeeds in establishing the charge leading necessary evidence, otherwise, Court will be helpless and if evidence is not sufficient, reluctantly the Court will have to pass the order of acquittal. The Court cannot be swayed away with public opinion or agitation and ignoring legal requirements can not convict the accused indiscreetly. 7. It is the case of the prosecution that after the marriage, Gitaben was not treated well. She was treated like a chattel. She was taunted, tortured and agonised both physically and mentally. Often she was beaten and lastly on the date of incident at 2-00 a.m. she was beaten, by her Brother-in-laws showering kick and fist blows. She found that illtreatments that was being meted out persistently, were no longer bearable and made her life not worth living which caused her to breed the idea to end her life, and in fact she did so. Thus the prosecution has come forward with the case of cruelty being meted out to Gitaben and urges the Court to convict the accused-appellant of the offence under Sec.498-A of the Indian Penal Code. 8. It is first necessary to know what is the meaning of cruelty and harassment envisaged by Sec.498-A of the Indian Penal code. This Court came across with such a question in a case of Indrasing M. Raol Vs. State of Gujarat, 40 (3) [1999 (3)] G.L.R. 2536 = 1999 G.L.H 596, wherein the meaning of cruelty and harassment is made clear in paras 6 and 7, which we reproduced hereinunder; "The express "cruelty" means and implies harsh and 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 and 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 and 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 the 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 and wary, exert and ascertain the cruelty and required intention on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, inter-se honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard or one's own obligation or intractability or habits as well as customs and traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record. "The word "harassment" is not defined in Sec.498-A. The meaning of the work "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 unpleasantness, 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 weal and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmetical accuracy is not accepted from the prosecution, but it has to adduce such evidence which would be credible leaving no room to any reasonable doubt; and point to the guilt of the accused." In view of such meaning of cruelty and harassment made clear, the prosecution has to lead the evidence and establish that the cruelty and harassment were incessant, persistent and unbearable and that too with the intention to force Gitaben to commit suicide. If accordingly, the charge is not established, the case will not fall within the ambits of Sec.498-A of the IPC, though it may fall within the ambits of any other provision of IPC or any other law for the time being in force. We will now proceed to examine whether the prosecution has accordingly proved the charge. 8. The learned APP relies upon the Dying Declaration recorded by the Executive Magistrate which is produced at Ex.13. The prosecution also relies upon the statement recorded by the Police Officer (Ex.51), before F.I.R. came to be lodged. That statement was then treated to be another Dying Declaration because of the death of Gitaben during the treatment in the Hospital. When the prosecution relies upon the Dying Declaration, what are the requirements in law to be satisfied for placing reliance and taking the same into consideration, must be borne in mind. In case of Kundulabala Subrahmanyam Vs. State of Andhra Pradesh (1993) 2 S.C.C. 684, it is made clear that if the Dying Declaration is found to be trust-worthy, conviction can be founded solely on the basis of it. In case there are more than one Dying Declarations, the Court must be satisfied about their trust-worthiness and consistency with each other. In the case of Paparambaka Rosamma and Ors Vs. State of Andhra Pradesh, JT 1999 (6) SC 585, the Supreme Court again making the law clear has held that in case 90% burns injury if found on the person of the victim and the Doctor certifies that the patient is conscious but does not certify that the patient is in fit state of mind, to make the statement such dying declaration cannot be relied upon and cannot be made a foundation for conviction. In another case of Dandu Lakshmi Reddy Vs. State of A.P. JT 1999 (6) SC 166, it is again made clear that the Criminal Court cannot ignore the evidence of the parents of the deceased, but if the Court has even a slightest doubt about the mental soundness of the author of the Dying Declaration, it would be unsafe to pass a conviction on such a statement, albeit its inadmissibility under Sec.32 of the Indian Penal Code. As the Dying Declaration is tested on the touchstones available in evidence and permitted by law, it does not stand scrutiny. It will be unsafe to convict any person on the strength of such a fragile and rickety Dying Declaration. In that case, the accused was given benefit of doubt. In Padmaben Shamalbhai Patel Vs. State of Gujarat 32 (1) [1991 (1)] GLR 557, the Supreme Court when again came across with a similar question, made the law clear stating that if the Court is satisfied about the truth of the statement made by the injured person, without any corroboration, the sole dying declaration may form the basis of conviction, even if the same is not in question and answer form, and in proper cases, conviction may rest on it. What is, therefore, made clear by the Supreme Court in the above stated decisions is that the dying declaration alone can be made the base for conviction of the accused, but before the same is done, the Court has to be satisfied that the person making the statement was not only conscious but in the fit state of mind also so as to make the statement; and further the dying declaration reflects the true version, the same is voluntary and inspires confidence leaving no room to doubt. 9. Govindlal N. Mehta (Ex.12) is the Executive Magistrate who recorded the Dying Declaration (Ex.13). He has made conflicting statements. At one stage he says that after going to the Hospital he took the opinion of the doctor that the patient was conscious. Later on he says that when he recorded Dying Declaration neither the doctor nor the nurse was present and he did not take the endorsement of the doctor regarding consciousness or other wise of Gitaben after recording of the Dying Declaration was over. It may be stated that there is the endorsement in the margin that the patient is conscious. Such statement casts cloud of suspicion regarding consciousness of Gitaben when her Dying Declaration was recorded. The doctor who is alleged to have made the endorsement in the margin of Dying Declaration is not examined and no cause is assigned for such omission. The say of the prosecution that Gitaben was conscious when Dying Declaration was recorded is not therefore free from doubt. 10. Apart from such aspect, if it is assumed for a while that Gitaben was conscious, it is also to be shown that she was in the fit state of mind to make the statement. Nowhere on careful examination we find any evidence throwing light on the proposition. The doctor has neither opined nor put up the endorsement on the Dying Declaration that Gitaben was in fit state of mind to make the statement. She could follow, observe, grasp, realize, think, perceive, hear or was able to speak, or by any other gestures was able to convey clearly what she truly and voluntrily wanted to. The Executive Magistrate is also silent on this point. Likewise, is the case with regards to the statement (Ex.51), as by no reliable evidence it is shown that Gitaben was not only conscious but was in the fit state of mind to make the statement. The evidence of Dr. N.N. Parikh (Ex.35) shows that Gitaben sustained burns injuries on face, shoulders, hands, legs and her brain was also affected. It had swollen. The wind pipe, vocal cords and larynx were also affected as carbon particles were found stuck. The liver and kidney were also swollen. Owing to such injuries, complications developed as a result of which Gitaben died. It, therefore, follows that Gitaben's brain must not be functioning well, and due to other injuries she was not in a position to speak. She must not be, therefore, in a fit state of mind to make any statement. In short when consciousness as well as fitness of the state of mind are not clearly established the Dying Declaration (Ex.13) and statement (Ex.51) cannot be taken into consideration; the same are required to be ignored. 11. Dr. Nayankumar N. Parekh (Ex.35) performed the Post-mortem. He could see that on both the hands inclusive of palms, there were 2nd and 3rd degree burns and fingers were also affected. It was hence necessary for the prosecution to show that Gitaben was in a position to hold pen and sign, might be with difficulty; but the prosecution has shrewdly remained silent, and that is suggestive of the fact that Gitaben was not able to hold the pen and sign. Still however we find signature of Gitaben on both the statements. In view of the fact as rightly contended by Mr. Malek the learned advocate for the appellant that the possibility of concoction can not be ruled out. For such reasons both the statements being not safely reliable are required to be kept out of consideration. 12. When dying declaration is for such reasons cannot be made the base for drawing one or another conclusion we have now to see whether there is any other cogent and appealing evidence on record throwing light on the proposition namely cruel treatment alleged by the prosecution. 13. The prosecution on this point mainly relies on the evidence of father, mother and grand mother of deceased Gitaben because Panchas, neighbours and other witnesses have turned hostile, they throw no light on the proposition and have shown ignorance on the point. We will, therefore, confine out discussion to the evidence of these three witnesses. 14. Balubhai Shankarbhai Patel (Ex.15) is the father of victim Gitaben. He does not support the case of illtreatment being meted out to Gitaben at 2-00 a.m. on the same day when she committed suicide. He is silent on the point. He merely states that when he went to the hospital, after receipt of the message, he came to know putting a question to her daughter Gitaben, that her Sister-in-law Bhanuben poured Kerosene on her and igniting match-stick, threw it on her, but in the Cross-examination, he admits that he has not so stated while lodging the complaint. It may be stated at this stage that the prosecution has come forward with the case that Gitaben on her accord went into the Kitchen and poured Kerosene and Bhanuben - her Sister-in-law reaching there igniting match stick threw on her. But her father has come forward with some improvement stating that Kerosene was also poured by Bhanuben - Sister-in-law of the victim and then in the Cross-examination states that he did not so state while lodging the complaint. When he is improving the case so as to see that accused are convicted any how, his testimony cannot be accepted without any cogent corroboration. 15. Shardaben Bhanubhai (Ex.16) is the mother of Gitaben. She has no doubt stated about the cruel treatment being meted out to Gitaben, but when her Examination-in-chief was about to be concluded she has stated that she was not knowing why Gitaben died. Making such statement she set at naught what, she has stated regarding the illtreatment. But for a while the same statement is ignored, her testimony on the cruel treatment given to Gitaben appears fishy. Of course, in the Examination-in-chief, she has stated that after the maternal aunt of Mahendra Revandas left Gita at her place, she was informed by Gita that Mahendra - her husband, was often beating her taking liquor; not only that but her Mother-in-law and two Sister-in-laws and Brother-in-laws were also thrashing her. They thereafter thought it wise to approach the Institution alike a good samaritan fighting for the women's good and helping the doleful women by attempting to solve their enigmas and problems, because Gitaben was threatened with dire consequences if