MOHD. HOSHAN, A.P. AND ANR.

STATE OF A.P.

SEPTEMBER 16, 2002

[U.C. BANERJEE AND SHIVARAJ V. PATIL, JJ.]

Penal Code, 1860; Sections 304-B, 306 and 498-A: Abetment to suicide- W!fe subjected to cruelty by husband-Suicide by burning-Charges against C husband and his mother-Acquittal by trial Court on benefit of doubt-High Court o.n re-appreciation of evidence found them guilty of committing cruelty on deceased-wife and convicted under Section 306 and 498-A but confirmed acquittal under Section 304-B-On appeal, held, cruelty is essentially a question of fact-Mental cruelty varies from person to person depending upon the D sensitivity and degree of endurance to withstand such cruelty-High Court rightly concluded that continuous taunting of the deceased by accused amounted to mental crue/ty-C onviction confirmed but sentence modified to imprisonment already undergone.

According to the proscution, the deceased wife was subjected to E cruelty by her husband (appellant No.I) and his mother (appellant No.2) for not bringing adequate dowry. They were continuously taunting and teasing her. She could not withstand such teasing and committed suicide by burning herself in the house of the accused. She was shifted to Hospital where she succumbed to burn injuries.

F Accused-appellants were tried for offences under Sections 304-B, 306

and 498-A IPC. Trial Court acquitted them of all the charges on benefit of doubt. On appeal, High Court, after re-appreciation of evidence, found them guilty of committing cruelty on the deceased and convicted them under Sections 306 and 498-A; however, it .:on firmed the ord.er of acquittal under Section 304-8. Hence this appeal.

It was contended for the appellants that High Court committed an error in reversing the order of acquittal merely because it could take a different view.

Disposing of the appeal, the Court

MOHD. HOSHAN v. STATE OF A.P. 409

HELD: I.I Trial Court committed manifest error in disbelieving the A dying declaration (Exbt. P/2) and the evidence of PWs 3 to 7. The view taken by the trial Court in acquitting the appellants was not a reasonable and justifiable view which could have been taken looking to the evidence keeping in view the well-settled principles. 1412-D, El

1.2. Whether one spouse has been guilty of cruelty to the other is B essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the indlviduai victim concerned, the social background, the eilvironnient, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of C courage or endurance to withstand such mental cruelty. 1411-G, HJ

1.3. In the instant case, having regard to the facts and circumstances, the High Court rightly concluded that the continuous taunting or teasing the deceased by the appellants on one ground or the other amounted to mental cruelty drawing her to end her life. High Court took note of the fact D that the appellants did not try to save the deceased although they were present when burn injuries were caused to her. [412-A, Bl

1.4. High Court was right and justified in reversing the order of acquittal and convicting and sentencing the appellants for offences under Section 306 and 498-A IPC. However, it is just and appropriate to modify E the sentence of imprisonment for the period already undergone having regard to the fact that the incident took place long back; that both the appellants were in imprisonment for about two months; and that appellant

No.2, mother of appellant No.I, is aged 60 years. (412-E, Fl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 871 of 1996.

From the Judgment and Order dated 18.4.1996 of the Andhra Pradesh High Court in Cr!. A. No. 858 of 1992.

L. Nageswara Rao, G. Ramakrishna Prasad, K.C_, Sudersah, Jayanth . G Muth Raj, K.V. Ramakrishna, Mohd. Wasay Khan and S. Udaya Kumar Sagar for the Appellants.

G. Prabhakar and Ms. T. Anamika for the Respondent.

The Judgment of the Court was delivered by H

A SHIVA RAJ V. PATIL, J. It is yet another unfortunate case of a young girl of 18 years whose all hopes and aspirations to live a happy married life were burnt and destroyed by the burn injuries caused by herself to end her life when the appellants subjected her to cruelty and abetted the commission of suicide by her within 11 months after marriage.

B The appellants were tried for offe11ces under Sections 304-B, 306 and 498-A of the Indian Penal Code. The learned Sessions Judge, after trial acquitted them of all the charges giving benefit of doubt. On appeal, the High Court while confirming the order of acquittal under Section 304-B of the IPC, set aside the order of acquittal recorded under Sections 306 and 498-A C and convicted and sentenced them for two years' rigorous imprisonment each for the said offences making the sentences to run concurrently. Thus; aggrieved by this judgment and order of the High Court, the appellants have filed this appeal before th is Court. The State has not filed any appeal against the order of the High Court confirming the order acquitting the appellants for the offence under Section 304-B IPC.

D The prosecution case as projected during the trial is th.at the appellant No. I is the son of the appellant No. 2. The deceased Razwana Parveen was married to the appellant No. I on 26.4.1987. Mohammed Allauddin Asir Mansoori (PW-3), Allauddin Mansoori (PW.4), and Rahman Bee (PW.5) are the brother, father and the mother of the deceased respectively. On 9.3.1988 E at about 9.30 P.M., the deceased sustained bum injuries in the house of the appellants where she was living. She was shifted to Osmania General Hospital at Hyderabad. She died at 11.00 A.M. on 12.3.1988 due to burn injuries. It was alleged by the prosecution that the deceased committed suicide because of cruel treatment of the appellants after her marriage and that the appellants F were demanding dowry from her.

There is no direct evidence to establish the case of the prosecution. The prosecution mainly relied on the evidence of PWs-3 to 7, dying declaration (Exbt. P2) recorded by the Magistrate V. Surender Rao (PW-I) and Exbt. P-

12, report made to Head Constable.

The learned Sessions Judge, finding some minor contradictions in Exbt.

P-2 and P-12, and that Exbt. P-2 was not recorded in the language in which the dying declaration was made, rejected it stating that much weight could not be given to it. He also doubted whether the deceased was in a fit condition to make such a dying declaration. The leam.id trial judge did not accept the H case of the prosecution that scolding and taunting of the deceased by the :

MOHD. HOSHAN v. STATE OF A.P. [SHIVARAJ V. PATIL, J.] 411

appellants for not preparing proper food or that she was not good looking A was not such a cruelty so as to push her to commit suicide. for no good reasons, the trial court did not acGept the evidence of PW-3 to 7. The High Court, on reappreciation of the l!Vldence objectively and on dislodging the reasons given by the trial court for ilquittal, convicted and sentenced the appellants. The High Court held that the triiil court was wrong in rejecting Exbt. P-i; tile dyihg declaration tiicorded by PW I, the Magistrate, particularly B when it was attested by the doctor on duty, PW I I. The High Court has noticed that Surendet Rao, PW-I, the Magistrate has testified that on 10.3.1988 he recorded dyliig dedatation between 2.46 A.M. to 3.15 A.M. He has certified that he had signed it llttd had taken the endorsement of the doctor on duty that the deceased was ln Ii tit state of mind to make a statement; the deceased C had mad!! the dying declaration in question-answer form in Urdu and he had translated the version and recorded the declaration in English. After recording her stllteltiettt, he explained the statement in Hindi to the deceased who admitted its correctness. Thereafter, he took the thumb impression of the deceased on her declaration (Exbt.P-2). In cross-examination, he has stated that he could read and speak in Hindi; the deceased had made statement in D

Urdu which he could understand as Urdu and Hindi languages are almost similar and in Hyderabad, Urdu and Hindi languages are spoken in the same way, there being no much difference. PW-I I, Dr. Vidya Sagar, corroborated the statement of PW-I , to the effect that the deceased was in a fit mental condition to make statement and that he was present when the statement was E recorded by the Magistrate. The High Court also did not agree with the reasoning of the trial court that the comment or taunting for not preparing good food was not a serious thing so as to say that the appellants treated the deceased with cruelty which made her to commit suicide. The High Court observed that based on evidence that continuous taunting and teasing led the deceased to such a situation where she had been disgusted and went to the F extent of pouring kerosene on herself and burning. The High Court observed that continuous mental cruelty practised on the deceased was a grave and serious provocation for an ordinary Indian women to do what the deceased had done in burning herself.

Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending

on the intensity of sensitivity and .the degree of courage or endurance to H

A withstand such mental cruelty. In other words, each case has to be decided on its ow.n facts to decide whether the mental cruelty was established or not.

The High Court in the present case, having regard to the facts found and circumstances stated, rightly concluded that the continuous taunting or teasing the dcceaed by the appellants on one ground or the other amounted to B mental crulty drawing her to end her life. As found by the learned Sessions Judge, out of 11 months of married life, the deceased was forced to live in /.

her parents house and could live with her husband for a period of two months ,.., in different spells. The High Court also took note of the fact that the appellants did not try to save the deceased although they were present when bum injuries were caused to her. i .

We are not impressed by the submissions made by the learned counsel for the appellants that the High Court committed an error in reversing the order of acquittal made by the trial court merely because the High Court could take a different view and that the reasons given by the Sessions Court for recording acquittal of the appellants were proper. On the other hand, the D learned ?c>Unsel for the State made submissions supporting the impugned judgment and order.

Having regard to the evidence brought on record and looking to the reasons recorded by the High Court as indicated in the foregoing paragraphs, we are of the view that the trial court committed manifest error in disbelieving E the dying declaration (Exbt P/2) and the evidence of PWs 3 to 7. We have no hesitation in holding that the view taken by the trial court in acquitting the appellanis was not a reasonable and justifiable view which could have been taken looking to the evidence keeping in view the well-settled principles. The High Coiirt, in our opinion, was right and justified in reversing the order of p acquittal and convicting and sentencing the appellants for the offences under Section 306 and 498-A IPC. We find no good reason to interfere with the same. However, we think it just and appropriate to modify the sentence of imprisonment for the period already undergone and order accordingly having regard to the fact that both the appellants were in imprisonment for about two 1 months; the incident took place on 9.3.1988; the appellant No. 2 is the mother G of the appellant No. 1 and she is aged 60 years; both the appellants are on bail and it may not be appropriate to send them to jail again. The appeal stands disposed of in the above terms. The bail bonds stand cancelled.

S.K.S.

Appeal disposed of.