THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1203 of 2005 Date: 27.09.2011 Between: Kadali Satyanarayana … Petitioner/ Accused AND The State of A.P., represented by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1203 of 2005 ORDER: Kadali Manga Lakshmi (‘the deceased’, for short) was the wife of the revision petitioner. She died on 19.04.2001 by committing suicide. The prosecution laid charge sheet against the sole accused, who is the husband of the deceased, alleging that the accused was guilty of treating the deceased cruelly and that the accused was also guilty of abutting the commission of suicide by the deceased, exposing himself to liability for the offences under Sections 498-A and 306 of the Indian Penal Code (IPC). The learned I Additional Assistant Sessions Judge, Kakinada found the accused guilty of both the offences. He sentenced the sole accused to Rigorous Imprisonment (R.I.) for a period of two years for the offence u/s.498-A IPC and R.I. for a period of five years for the offence u/s.306 IPC. He also imposed a fine of Rs.1,000/- on each count with appropriate default sentence. He did not direct the sentence to run concurrently, so much so the sentences were to run consequently. In the appeal preferred by the sole accused before the III Additional Sessions Judge, Kakinada, the conviction recorded by the trial Court was confirmed by the appellate Court. The appellate Court, however, directed that the sentences should run concurrently. Impugning the judgments of conviction and sentence, the sole accused preferred the present revision. 2. The points for consideration are whether the prosecution has brought home the guilt of the accused beyond reasonable doubt and whether the judgements of the trial Court and the appellate Court are erroneous. 3. The prosecution examined as many as 13 witnesses. PWs.1 and 2 are the sister and brother of the deceased. PW.4 is also a sister of the deceased. PW.3 is the mother of the deceased. 4. The basic case of the prosecution is a) The deceased was married to one Gopalam in or around 1995. The marriage was short lived. Owing to disputes, the deceased obtained divorce from Gopalam. b) Subsequently, the deceased was given in marriage to the accused. The accused had already a living wife in Kurnool District. The marriage between the accused and his wife was subsisting by the time the accused entered into marriage with the deceased. When the deceased came to know about the former marriage of the accused and about the subsistence of that marriage, the deceased went away to the house of her parents. The accused in his turn went away to Kurnool to live with his wife. c) The accused, however, returned to Kakinada about two months thereafter. He persuaded the deceased to join him and took away the deceased with him. The accused and the deceased lived in Recharlapadu, Kakinada. The accused used to go home in a drunken state and used to beat the deceased (leading to the offence u/s.498-A IPC). d) The deceased returned to the house of her parents on account of the cruel treatment of the accused. By raising monies, the parents of the deceased sent the deceased to Bahrain, at the request of the accused. e) The deceased stayed at Bahrain for a period of three years. She returned to India and to her native place at Kakinada when PW.3 suffered from ill health. The deceased then resided at the house of her parents (and not at the house of the deceased). f) The accused took the deceased with him about two months after the deceased returned to India, promising to look after the deceased properly. However, the accused continued to beat the deceased at his residence demanding her to bring more money from Bahrain. g) While things stood thus, on 19.04.2001, the accused induced the deceased to commit suicide. In the process, he also ill-treated her. As the deceased could not withstand the ill treatment, she poured kerosene over herself and set fire. PWs.1, 2 and 5 witnessed the same. PW.1 immediately poured water over the body of the deceased to extinguish fire. h) The deceased at that time informed PW.1 that the accused ill-treated the deceased, that the deceased could not withstand the same and that when she poured kerosene over her body, the accused offered a matchbox to the deceased and that the deceased lit fire to her body with a matchstick from the match box given by the accused. i) The deceased was admitted in the Government General Hospital, Kakinada. PW.13 recorded the dying declaration of the deceased under Ex.P.15. In the dying declaration also, the deceased claimed that she committed suicide on account of ill-treatment from the deceased and also deposed that while she was poured kerosene over herself and was setting fire, the accused was merely watching the same. g) This is the case of the prosecution. 5. The learned I Additional Assistant Sessions Judge examined as many as 13 witnesses. Exs.P.1 to 15 were marked on behalf of the prosecution. On the basis of the evidence, the learned trial Judge found the accused guilty of the offences u/s.498-A and 306 IPC and convicted him for both the offences. The sole accused preferred appeal before the Sessions Court. The learned III Additional Sessions Judge, Kakinada dismissed the appeal in substance. He, however, directed the sentences to run concurrently. 6. Sri N. Siva Reddy, learned counsel for the revision petitioner/accused contended that both the offences under Sections 498-A and 306 IPC were not made out against the accused and that the judgements of the trial Court and the appellate Court which are erroneous are liable to be set aside. Regarding the offence u/s.498-A IPC, it is the contention of the learned counsel for the accused that it is the ill treatment of the wife, which alone would be an offence, and not the ill treatment of any person. 7. Section 498-A IPC reads: “498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. ………………………” A plain reading of Section 498-A IPC tends to show that the offence should have been committed either by the husband or the relatives of the husband. The jural relationship of wife and husband would appear to be a sine qua non for the application of Sec.498-A IPC. Indeed, it is the case of the prosecution witnesses that the accused entered into matrimonial relationship with the deceased. The accused allegedly married the deceased. However, admittedly, the accused had a wife and the marriage between him and his wife had been subsisting by the time the accused and the deceased contracted marriage. Thus, the accused entered into matrimonial relationship with the deceased while earlier marriage with another lady was subsisting. As bigamy is proscribed in India, subsequent marriage of the accused with the deceased was not a marriage within the meaning of the matrimonial laws. Can the deceased be considered to be the wife of the accused? 8. The trial Court went by the assumption that the accused and the deceased are man and his wife. The trial Court did not consider the issue whether the accused can be considered to be the husband of the deceased within the meaning of Sec.498-A IPC. 9. The appellate Court, however, considered this aspect. Placing reliance upon Reema Agarwal v. Anupam[1], the appellate Court held that the accused should be considered to be the husband of the deceased within the meaning of Sec.498-A IPC. The Supreme Court examined the ramifications of Sections 498-A and 304-B IPC and Section 113-B of the Indian Evidence Act in this decision. Holding that the legislations are made with some policy to curb and alleviate some public evil, the Supreme Court considered it appropriate to interpret Sections 498-A and 304-B IPC with certain element of realism. The Supreme Court posed the question as to whether a person, who enters into a marital arrangement be allowed to take shelter behind the smokescreen to contend that since there was no valid marriage, the question of commission of offence would not arise. Declaring that hair-splitting legalistic approach would encourage harassment to women over demanded money, the Supreme Court opined that it would be just and appropriate to construe the expression ‘husband’ to cover a person, who enters into marital relationship and subjects the woman to cruelty under the colour of such proclaimed or feigned status of husband. Thus, through realistic and purposive interpretation of the definition of husband in Section 498-A IPC, the Supreme Court considered that a person who enters into marital relationship with a woman should be considered to be a husband within the meaning of Sec.498-A IPC. I shall examine whether the accused should be considered to be the husband of the deceased in the light of Reema Agarwal. If the accused is the husband within the meaning of Sec.498-A IPC, there is enough evidence to convict him for the offence u/s.498-A IPC. 10. The prosecution examined several witnesses to establish the jural relationship between the accused and the deceased. PW.1 is a younger sister of the deceased. PW.2 is a younger brother of the deceased. PW.3 is the mother of the deceased. PW.4 is another sister of the deceased. All of them deposed that the accused entered into matrimonial bond with the deceased and that after the marriage, the deceased came to know that the accused had a subsisting marriage and that his wife was alive. It is evident from the evidence of PWs.1 to 5 that by the time the deceased entered into matrimonial tie with the accused, she was not aware that the accused had a living wife. 11. PW.5 is a neighbour of the parents of the deceased. He was considered hostile. However, he deposed that the deceased was the wife of the accused. PW.6 is a resident of the locality where the parents of the deceased have been residing. He also deposed that the deceased was the wife of the accused. In Ex.P.15 dying declaration, the deceased described herself as the wife of the accused. There is no evidence to the contrary to show that the accused was not the husband of the deceased. There is enough evidence to show that the deceased was recognized as the wife of the accused by one and all. In view of the decision of the Supreme Court relied upon by the learned appellate Judge, the deceased should be considered to be the husband of the accused for the purpose of Sec.498-A IPC. 12. The evidence that the accused ill-treated the deceased is quite convincing. PWs.1 to 4 are the blood relatives of the deceased. They certainly were not residing with the accused and the deceased. The natural reaction of the deceased when she was ill-treated was to inform her parents and other relatives. PW.3 who is the mother of the deceased claimed that the accused used to ill-treat the deceased and used to treat the deceased with cruelty, more or less demanding money from her. 13. Inter alia, the learned counsel for the accused contended that there was no direct evidence for the offence u/s.498-A IPC. It is rarely direct evidence would be available for the offence u/s.498-IPC, as it would not be normal for a husband to beat or ill-treat the wife in public. The cruelty and the demand for additional dowry should be gathered from the overall circumstances of the case. The learned counsel for the accused inter alia pointed out that PWs.5 and 7 did not support the prosecution story and that as neighbours did not support the prosecution case, the prosecution failed to establish the offence u/s.498-A IPC. PW.5, in fact, deposed that he used to see the accused and the deceased quarrelling with each other. PW.5, however, did not depose that the accused was treating the deceased cruelly and that the same was by way of demand for additional dowry. PW.6 is another neighbour. He also did not spoke about the alleged cruelty of the accused towards the deceased. 14. The offence u/s.498-A IPC was made out if the accused was treating the deceased cruelly either for additional dowry or otherwise. Barring for PW.5, no independent witness spoke about the cruel treatment of the accused towards the deceased. Even PW.5 did not depose that the accused was treating the deceased cruelly and that the same was for additional monies. PW.5 merely deposed that the accused and the deceased used to quarrel amongst themselves. 15. Consequently, the only evidence available is the evidence of PWs.1 to 4. 16. Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor has pointed out that there cannot be eyewitness account for the ill treatment of the wife by the husband. However, it is the case of PWs.1 to 4 that the deceased used to inform them that the accused was ill-treating the deceased and was even beating her. I am unable to suspect the evidence of PWs.1 to 4 even after a thorough examination of their evidence. Merely because PWs.1 to 4 are relatives of the deceased, their evidence cannot be discarded. Their evidence gained importance, in view of the dispute being a family affair. I agree with the contention of the learned counsel for the Public Prosecutor that PWs.1 to 4 established that the accused was treating the deceased cruelly and that the prosecution, consequently, established the guilt of the accused for the offence u/s.498-A IPC beyond reasonable doubt. The trial Court and the appellate Court, therefore, were justified in holding that the accused was guilty of offence u/s.498-A IPC. 17. Regarding the offence u/s.306 IPC, the prosecution must establish that there was an abetment by the accused to the deceased to commit suicide. It is the case of PW.1 that the deceased informed her that when the deceased poured kerosene over herself, the accused gave a matchbox to the deceased to commit suicide. PW.3 deposed that the accused several times asked the deceased to die and that the deceased initially went to the house of PW.3 with kerosene bottle and poured kerosene all over her body and that she later went on to the road and set fire to herself. Thus, according to PW.3, there was inducement from the accused to the deceased to die. 18. PW.4 deposed that when she met the deceased in the hospital, the deceased informed PW.4 that after the deceased poured kerosene over herself, the accused offered a matchbox to the deceased. PW.6 also deposed that he was informed that the accused gave a matchbox to the deceased. In her statement under Ex.P.15, the deceased did not inform PW.13 that the accused offered a matchbox to her. Through Ex.P.15, the deceased, however, informed PW.13 that while the deceased was immolating herself, the accused was merely watching. Would it be tantamount to abetment of commission of suicide by the deceased? 19. There is contradiction between the evidence of the witnesses and Ex.P.15-dying declaration of the deceased. The witnesses stated that the deceased informed them that the accused offered the matchbox to the deceased. In Ex.P.15, the deceased, however, stated that the accused merely stood and watched, while the deceased was attempting to commit suicide. Section 107 IPC defines abetment. Inter alia, Section 107 read that “a person abets the doing of a thing, who (thirdly) intentionally aids, by any act or illegal omission, the doing of that thing”. Thus, intentionally omitting to do an act illegally would be tantamount to abetment. Perhaps, if a stranger attempts to commit suicide by climbing a cell tower or trying to immolate himself, it would not be tantamount to abetment to commit suicide, if a passerby does not attempt to stop the incident. On the other hand, if a husband merely watches when a wife poured kerosene over herself and set fire to herself, it certainly would amount to abetment of the commission of suicide. Perhaps, the accused never thought that the deceased would commit suicide, but at least when the deceased lighted the matchstick, the accused should have attempted to extinguish fire. Going to the extreme, after the deceased set fire to herself, the accused should have attempted to extinguish fire. On the other hand, the evidence is that after the deceased set fire herself, the accused went away from the place. He did not even raise alarm seeking the help of anybody to put off the fire. This activity on the part of the accused is bound to be considered abetment on his part for the deceased to commit suicide. 20. Indeed, PW.3 deposed that the accused several times asked the deceased to die. I am not satisfied with the evidence of PW.3 in this context, since PW.3 is the only witness who spoke about the alleged utterances of the accused. At the same time, the case of the prosecution that the accused abetted the commission of suicide is made out beyond reasonable doubt from the fact that everyone deposed that when the deceased was in flames, the accused took to heels. In view of the circumstances of the case, I have no hesitation to accept the finding of the trial Court and the appellate Court that the prosecution proved the guilt of the accused beyond reasonable doubt. The prosecution, consequently, established both the offences under Sections 498-A and 306 IPC. 21. It may be recalled that the trial Court sentenced the accused to Rigorous Imprisonment for a period of two years for the offence u/s.498-A IPC and to Rigorous Imprisonment for a period of five years for the offence u/s.306 IPC and directed the sentences to run consequently. The appellate Court modified the same directing the sentences to run concurrently. It may be noticed that the accused was 39 years old by the time of the offence. The offence occurred more than 10 years ago. The accused, therefore, is more than 49 years old as on today. Added to it, the accused has got a legally wedded wife. Taking these factors into consideration, I consider that it would be appropriate to reduce the sentence of Rigorous Imprisonment to a period of two years for the offence u/s.306 IPC. Barring for this, no other circumstances are made out by the accused in this backdrop. 22. Accordingly, the Criminal Revision Case is dismissed, so far as the findings of the trial Court and the appellate Court regarding the conviction against the accused for the offences under Sections 498-A and 306 IPC are concerned. The sentence of Rigorous Imprisonment for a period of two years for the offence u/s.498-A IPC is confirmed. So far as the offence u/s.306 IPC is concerned, the Rigorous Imprisonment for a period of five years, as imposed by the trial Court and confirmed by the Sessions Court, is reduced to Rigorous Imprisonment for a period of two years. The direction of the appellate Court that the sentences shall run concurrently deserves to be maintained and is, accordingly, maintained. Needless to record that the accused is entitled the benefits of Section 428 Cr.P.C. The accused/revision petitioner, if he is not in jail, shall surrender at once before the trial Court to undergo the remaining part of imprisonment. __________________ K.G. SHANKAR, J Date: 27.09.2011 Isn [1] AIR 2004 SC 1418