Supreme Court of India

Bhanuben And Anr vs State Of Gujarat on 14 September, 2015

Equivalent citations: AIR 2015 SUPREME COURT 3405

Author:
V.Gopala Gowda

Bench:
V.Gopala Gowda
,
T.S.Thakur

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1209 OF 2015
(ARISING OUT OF SLP (Crl.) NO. 3869 OF 2015)

BHANUBEN AND ANR. ………APPELLANTS
Versus
STATE OF GUJARAT ……RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J.

Leave granted.

This appeal is filed by the appellants against the impugned judgment and
order dated 23.02.2015, passed in Criminal Appeal No. 101 of 2010, by the
High Court of Judicature of Gujarat at Ahmedabad, wherein the High Court
has dismissed the appeal of the appellants and upheld the order of
conviction and sentence of the appellants under Sections 498A and 306 read
with
Section 114
of the Indian Penal Code, 1860 (in short “
I.P.C
.”) passed
by the Fast Track Court, Veraval, Camp Una, in Sessions Case No.9 of 2007
(hereinafter “the trial court”) in its judgment and order dated 21.11.2009.
The appellants have prayed to set aside the same and quash the criminal
proceedings initiated against them by the respondent-State, urging various
legal grounds.

The brief facts of the case are stated hereunder to appreciate the rival
legal contentions urged on behalf of the parties:

The appellant nos. 1 and 2 are the mother-in-law and the sister-in-
law of the deceased respectively. It is the case of the prosecution that
the deceased was residing with her husband and in-laws in a joint family at
Kodinar with a minor daughter. However, within 2 years of marriage, the
deceased was allegedly tortured by her husband and her in-laws for not
bringing dowry and not working properly. The deceased was also allegedly
driven out of her matrimonial home and was forced to stay at Kanta Stri
Vikas Gruh at Rajkot.

The deceased informed the complainant, who is her paternal uncle about the
harassment and that her husband and in-laws were demanding an amount of
Rs.20,000/- from her. The maternal uncle of the deceased persuaded her to
compromise with her in-laws and sent her back to her matrimonial home.
Thereafter, the deceased was kept well for a month but she was later
allegedly beaten up and driven out of her matrimonial home. A case was
registered against them before the Amreli Nari Surakhsha Gruh. After 2
months, the husband and the father-in-law of the deceased brought her back
after making a settlement. After a month of her return to her matrimonial
home, the deceased was again allegedly beaten up and thrown out of her
home. The deceased then filed a complaint against her in-laws before the
Babra Police Station and a maintenance application was filed before the
Babra Court. The husband of the deceased brought her back home again after
making a settlement before the Court but she was again allegedly beaten up
by her in-laws against which she filed a case before the Amreli Mahila
Vikas Gruh, where her maintenance was fixed at Rs.1,000/- p.m. but the same
was not paid by her husband.

The deceased then stayed at the Gondal Bala Ashram (orphanage) and from
there she again went back to her in-laws place at Kodinar to meet her
daughter whose custody was with her husband as part of a compromise between
herself and the accused. It is further the case of the prosecution that on
12.11.2006 at about 11.30 hours when the complainant was on his way to work
he received an information that the deceased had consumed poison and later
came to know through his daughter that the deceased had passed away.

The complainant then filed a complaint being I.C.R. No.172 of 2006 before
the Kodinar Police Station against the appellants and the husband of the
deceased. Thereafter, further investigation was carried out, the panchanama
of the scene was drawn, the statements of the witnesses were recorded and
the accused were arrested.

The learned trial court after recording the evidence of prosecution
witnesses and on perusal of the dying declaration of the deceased and on
consideration of the same, convicted and sentenced the present appellants
and the husband of the deceased for the offences punishable under
Sections
498A
and
read with
Section 114
of I.P.C. The accused were to undergo 3
years of rigorous imprisonment with a fine of Rs.5000/- and in default,
further simple imprisonment of six months for the offences punishable under

Sections 498A
and
of the I.P.C. For offences punishable under
Sections
and
of the I.P.C. the accused were ordered to undergo 10 years
rigorous imprisonment with a fine of Rs.12,000/-each and in default,
further simple imprisonment of one year. The accused were acquitted for the
offences punishable under
Section 304B
read with
Section 114
of the I.P.C.
and
Section 4
of the Dowry Prohibition Act, 1961.

Being aggrieved by the same the accused filed an appeal before the High
Court of Gujarat which dismissed the same holding that it has been well
established that the accused have instigated the deceased and thereby they
abetted the deceased in committing suicide. The High Court further held
that the accused and his family members caused mental and physical cruelty
and therefore, the deceased was put in a critical condition and consumed
poison and ended her life. It further held that on perusal of the findings
recorded by the trial court it was impossible that the deceased could have
consumed poison by mistake and therefore, the learned trial court has
rightly convicted the accused as they are guilty of the above mentioned
offences. The High Court has thus upheld the order of conviction and
sentence passed by the trial court against all the accused persons. It is
stated that the husband of the deceased has already undergone the period of
sentences passed against him and has been released from jail. The present
appeal has been filed by the appellants-the mother-in-law and the sister-in-
law of the deceased praying to set aside their conviction and sentence and
for their enlargement on bail.

It has been contended by the learned counsel on behalf of the appellants
that the guilt or even the involvement of the appellants in the commission
of the offence has not been rightly pointed out by the courts below as
there are no independent evidence/witnesses against them. Thus, the case
against the appellants has not been proved beyond reasonable doubt.

It has been further contended by him that the trial court did not find any
incriminating material evidence against the accused so as to punish them
under the aforementioned offences. In the present matter, the only evidence
adduced before the courts below was the deposition of the relatives of the
deceased and no independent witnesses were examined. He has further
submitted that as per the provisions under
Section 113(A)
of the Indian
Evidence Act, 1872, the abetment on the part of the accused has not been
proved by the prosecution.

He has further contended that the courts below have not considered the
dying declaration of the deceased and the deposition made by the doctor who
had examined her that were recorded by the Executive Magistrate do not
mention any allegation against the accused.

On the other hand, it has been contended by Ms. Hemantika Wahi, the
learned counsel on behalf of the respondent that the trial court and the
High Court after appreciating the evidence on record and the submissions
made on behalf of the parties have rightly convicted and sentenced the
accused for the afore- mentioned offences.

She has submitted that the ingredients under
Sections 498A
,
and
304B
of
I.P.C. are established beyond all reasonable doubt against the accused. She
has further submitted that from the evidence of the witnesses, it has been
clearly established that the appellants were mentally and physically
harassing the deceased and even had driven her out of her matrimonial house
several times.

She has further submitted that the presumption as to the abetment of
suicide as per
Section 113A
of the Indian Evidence Act, 1872, has been
clearly proved and the appellants are responsible for abetting her in the
commission of suicide which is the concurrent finding on fact and the
appellants have not made out a case for interference of this Court.

On the basis of the rival legal contentions urged on behalf of the parties
and the evidence on record, the following questions would arise for our
consideration:

Whether, the Courts below have rightly convicted and sentenced the accused
for the offences punishable under Sections 498A and 306 read with
Section
of I.P.C.?

What order?

Before arriving at an irrefutable conclusion, we have to first determine as
to whether the deceased was tortured and meted with cruelty by the accused
or not? To find out the same, we have perused the evidence placed on record
by the prosecution viz., the deposition of witnesses and the dying
declaration of the deceased.

It is an undisputed fact that the deceased was frequently taking refuge at
Kanta Stri Vikas Gruh, Rajkot, Mahila Vikas Gruh and Gondal Bala Ashram. It
is also an undisputed fact that her paternal relatives had pacified her
many a times and she was sent back to her in laws’ home after compromise.
The same has been proved by the deposition of PW-6 paternal uncle of the
deceased at Exh.69 before the trial court and PW-7-the wife of PW-6 and PW-
9-the brother of the deceased. The same has also been further corroborated
by PW-19 who is a social worker at Amreli Mahila Vikas Gruh at Exh.135. It
is also an undisputed fact that the deceased had filed a complaint against
the accused for maintenance, which was not paid to her by her husband. She
had also filed an FIR against the accused on 14.02.2006 under
Sections
498A
,
506(2)
of I.P.C and
Sections 3
and
of the Dowry Prohibition
Act, 1961. On several occasions after the compromise, the deceased was
again thrown out of her matrimonial home. The abovementioned witnesses have
also stated that the deceased was regularly taunted and mentally and
physically harassed by the accused and she had complained about the same to
the above mentioned witnesses.

It has also been deposed before the trial court by several other
independent witnesses who are the neighbours of the accused and live in the
same vicinity that they had witnessed heated exchanges and quarrel between
the accused and the deceased which has been corroborated by Ravibhai Dodia
(PW-8) in his testimony at Exh.80 before the trial court. Further, another
independent witness, Smt. Savitaben (PW-10), has also deposed before the
trial court at Exh.84 that the deceased had sat on “Otla” of her house for
2 consecutive days as the accused had locked up their house and gone
somewhere and came back only when they received a call from their
neighbours about the deceased sitting there. It has also been noticed that
the deceased had spent several days sleeping at odd places like, empty
buses, etc. as she had nowhere else to go.

Further, the deposition of the witness Hirakumar Kanabhai Gohil (PW-12) in
his testimony at Exh.95 had stated before the trial court that the deceased
was loitering outside his street and had asked for his help, thereby
claiming that her husband and in-laws were trying to kill her and that
is why she had run away from their home. She also had burn marks branded on
her hands. Therefore, he had helped her and paid her an amount of Rs.200/-
for the bus fare. We have also taken note of the fact that the mother-in-
law ignored the pleas of the deceased by calling her act as “epileptic
fits” when the deceased had come running out of her house and was calling
out to her for help on the day of the unfortunate incidence.

There is no other material evidence or fact brought before this Court to
show that the deposition of the above mentioned witness is unreliable and
this Court has no reason to believe the same to annul the finding of
conviction on the charge against the appellants. Therefore, in the light of
the above mentioned depositions made and based on the facts and
circumstances of the case, it has been aptly held by the courts below that
the prosecution has established by adducing cogent and convincing evidence
that the deceased had been tortured by her in-laws and her husband. The
reason that the deceased kept coming back to her matrimonial home by way of
compromise in spite of all the cruelty and torture meted against her is
because of her minor daughter who was living with her husband. Thus, the
ingredients to constitute the offence under the provision of
Section 498A

of I.P.C. have been fully satisfied in the present case against the
appellants. The relevant provisions of Section 498A read thus:

“498A. 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. Explanation.—For the purpose 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.”

The deceased was subjected to cruelty at the hands of her husband and her
in-laws and the evidence of the prosecution witnesses and the
circumstantial evidence makes it amply clear that she was harassed beyond
limits by her in-laws, which had caused her grave mental and physical
injury. The same had made her run away from matrimonial home on several
times and had ultimately resulted in her death. On the issue that the above
mentioned witnesses are interested witnesses and their evidence cannot be
accepted by this Court as contended by the learned counsel on behalf of the
appellants is also rejected in the light of the decision of this Court in
the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal[1], wherein this
Court has held thus:

“39…….In a matrimonial dispute, it would be inappropriate to expect
outsiders to come and depose. The family members and sometimes the
relatives, friends and neighbours are the most natural witnesses. The
veracity of the testimony is to be tested on objective parameters and not
to be thrown overboard on the ground that the witnesses are related to
either of the spouse. Exception has been taken by the courts below that the
servants of the house should have been examined and that amounts to
suppression of the best possible evidence…….”

Now, coming to the point of determining whether the accused had abetted in
the commission of suicide of the deceased as provided under
Section 306
of
I.P.C., the same cannot be proved with conclusive evidence in the light of
the fact that the deceased in her dying declaration had clearly stated that
she had consumed the poisonous tablets by mistake. The same was further
corroborated by the doctor who had examined her and had declared her as
stable and conscious enough to give a reasonable statement. Reliance has
also been placed upon the decision of this Court in the case of
Bhola Turha
v. State of Bihar
[2], wherein this Court has held thus:
“2. The conviction of the appellant is based solely upon the dying
declaration. It has been found to be reliable. It was made by the deceased
within about two hours from the incident and a few hours before his death.
In his dying declaration, he has clearly explained how he came to be
injured by the appellant. After carefully scrutinising the dying
declaration, both the courts have come to the conclusion that it contains a
truthful version as regards the manner in which the injuries were caused to
him.”

Further, the accused were present inside the house at the time the deceased
consumed the poisonous tablet and they had taken her to the hospital as
soon as they realized that she was in a critical condition. Thus, even
though the cruelty aspect meted on the deceased has been proved beyond all
reasonable doubt, it cannot be said that the same had lead her to commit
suicide or that the accused had abetted in the commission of the same, as
is clear from the facts and circumstances of the present case. The
appellant no.1 herein even though had behaved stoically in the beginning by
calling the act of the deceased as “epileptic fit”, but as soon as she
realized the gravity of the situation she called her son and they took her
to the hospital for examination and treatment. This act of the accused
clearly shows that they did not abet the deceased in the commission of the
suicide, if at all it was a suicide.

From the facts and circumstances of the present case and upon the
examination of the body of deceased, it is clear that her death was a
result of an accident and she had mistakenly consumed the poisonous tablet
as the same was kept with other medicines. Had the deceased wanted to
implicate the accused, she would have revealed their names in the final
moments before her death, as she had nothing to fear for and her antecedent
showed that she had previously filed a complaint against the accused when
they harassed her. If the accused had any hand in her death, the same would
have been revealed in the dying declaration of the deceased. Thus, the
prosecution has failed to prove beyond all reasonable doubt that the
accused had abetted the deceased in the commission of suicide as provided
under the provision of Section 306, I.P.C.

In view of the above observations made, it is amply clear that even though
the accused had tortured and harassed the deceased because of which she was
constantly running away from her matrimonial home and had also filed a
number of complaints against the accused, the same cannot be said to be the
reason for her death in the light of the facts and circumstances of the
present case and the dying declaration made by her.

The learned counsel for the appellants has
placed reliance upon
the
decision of this Court reported in the case of
Ramesh Kumar v. State of
Chhattisgarh
[3] at paragraph 22 wherein it is held that
Sections 498A
and
IPC are independent and constitute different offences. Merely because
an accused has been held liable to be punished under
Section 498A
IPC, it
does not follow that on the same evidence, he must also and necessarily be
held guilty of having abetted the commission of suicide by the women
concerned under 306
IPC
. Therefore, the conviction and sentence for offence
punishable under Section 306 read with
Section 114
of the IPC of the
present appellants is contrary to the legal evidence on record
particularly, the dying declaration of the deceased and the conduct of the
accused who took the deceased to the hospital. This fact has been grossly
ignored by the courts below while convicting and sentencing the appellants
for the aforesaid offences. Therefore, the conviction and sentence for the
aforesaid offence is erroneous and accordingly it is liable to be set
aside.

After evaluation of evidence on record and concurrent finding of fact
recorded by the trial court and the appellate court, the appellants were
convicted for the offences punishable under Section 498A and 306 read with

Section 114
of I.P.C. The accused were acquitted for the offences
punishable under Section 304B read with
Section 114
of I.P.C. and
Section 4

of the Dowry Prohibition Act, 1961 as they did not find any evidence on
record to bring home the guilt of appellants for the offences punishable
under Section 306 as there is no cogent evidence in this regard in the
finding of fact. Therefore, the conviction and sentence for the offence
punishable under
Section 498A
of I.P.C. with regard to cruelty is held to
be proved by the courts below. The same is accepted by us and they are
required to be convicted and sentenced for the offence punishable under

Section 498A
, I.P.C. The conviction and sentence passed by the High Court
for the offence punishable under Section 306 read with
Section 114
of
I.P.C. is liable to be set aside, accordingly, we set aside the same.

Since, we have upheld the conviction for the offence punishable under

Section 498A
I.P.C., it is to be carefully examined by us taking into
consideration the facts and circumstances of the case as to what sentence
is required to be imposed upon the appellants. Keeping in view the age of
the appellants i.e. the appellant No. 1-mother-in-law of the deceased who
is said to be around 60 years of age and appellant No.2-sister-in-law of
the deceased who is more than 35 years of age and having a child to take
care of, we deem it fit and proper to limit the sentence to the period of
imprisonment already undergone by them.

We partly set aside the impugned judgment and order dated 23.02.2015 of
the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 101 of
2010.

We confirm the conviction on the charge under
Section 498A
of I.P.C.
and having regard to the facts and circumstances
referred to above
we
direct that the period already undergone by the appellants in custody is
the sentence. We modify and reduce the sentence to the period of
imprisonment already undergone by them.

Since, we have stated that period already undergone is the sentence which
we have modified in this judgment for the conviction under
Section 498A
of
the I.P.C. and in pursuant to the impugned judgment and order of the High
Court, the appellants have surrendered to undergo the imprisonment.
Presently, they are undergoing sentence imposed by the High Court and
therefore, we direct the Jail Superintendent, Rajkot Central Prison,
Rajkot, Gujarat to release them forthwith, if not required in connection
with any other criminal case.

Accordingly, the appeal is allowed to the aforesaid extent.

……………………………………………………………J.
[T.S.THAKUR]

……………………………………………………………J.
[V.GOPALA GOWDA]

New Delhi, September 14, 2015

-----------------------
[1] (2012) 7 SCC 288
[2] (1998) 9 SCC 15
[3] (2001)9 SCC 618