Sunday, November 2, 2014

Husband acquitted though wife dies after domestic quarrel. No specific proof of dowry. Discussion on INSTIGATION !!


synopsis
***********************
* Prosecution says "....within the span of about two years of the marriage life, the deceased committed suicide as a result of the harassment and cruelty. ..."
In laws and husband imposed restrictions, and due to such harassment regarding domestic work, there was a constant quarrel, which lead her to commit suicide
* From the entire material and evidence, it is evident that there are no allegations about any demand for dowry or any harassment on account of that.
* main focus is with regard quarrel over trivial domestic matters - like not allowing her to go out or having some restrictions, not helping the mother-in-law in her domestic work etc.
* There is also a case with regard to the beating by the husband on couple of occasions and supporting the mother, suggesting that he would accept what the mother says.
* Apex's courts observations "....The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of selfesteem and self respect. Therefore, it is impossible to lay down nay straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances...." respectfully referred to
* Therefore, on appreciation of this evidence, it reveals that there was a domestic quarrel over trivial mattes regarding domestic work, the attitude of the in-laws (since they have expired, the appeal abates qua them).


So the court concludes :
******************************
* ".....Therefore, having regard to the aforesaid discussion and the matrimonial quarrel over the domestic work and the dominance by the in-laws even if it is assumed, would not support the prosecution case that it was of such a nature which could lead her to commit suicide. As discussed above, the suicide or tendency to commit suicide depends on various factors, including the sensitivity of the person. ........."


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 664 of 2003 With CRIMINAL REVISION APPLICATION NO. 272 of 2003

****************************************************************
STATE OF GUJARAT....Appellant(s)
Versus
MANSUKHLAL GORDHANDAS VAJANI & 2....Opponent(s)/Respondent(s)
****************************************************************

Appearance:

Criminal Appeal No. 664 of 2003
MS. MONALI BHATT, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1 , 3
MR MJ BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 2

Criminal Revision Application No. 272 of 2003
MR. NIRAV C. THAKKAR for the Appellant No.1
MS. MONALI BHATT, APP for Respondent No.1
MR. M.J.BUDDHBHATTI, ADVOCATE for Respondent Nos. 3 and 4

****************************************************************

CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

Date : 31/03/2014

COMMON ORAL JUDGMENT

1. The present Appeal under Section 378(1)(3) of the Code of Criminal Procedure is directed against the impugned judgment and order rendered in Sessions Case No. 84 of 1994 by the learned Additional Sessions Judge, Jamnagar dated 20.1.2003 recording the acquittal for the charges of offence under Sections 498A, 306 read with 114 of the Indian Penal Code.

2. The facts of the case briefly summarized are as follows.

3. It is the case of the prosecution that the deceased niece of the complainant uncle was married to the Accused No.2 ("A-2") and within the span of about two years of the marriage life, the deceased committed suicide as a result of the harassment and cruelty. It is the case of the prosecution that the Accused No.1 ("A-1") and Accused No.3 ("A-3"), who are the in-laws, used to impose restrictions, and it is due to such harassment regarding domestic work, there was a constant quarrel, which lead her to commit suicide as the A-2 husband was also joining the A-1 and A-3.

4. The complaint was filed by the complainant- uncle which was registered as FIR No. 378/1988 with the Jamnagar City 'B'Division Police Station. It is required to be mentioned that earlier the entry for the accidental death being 46/1988 was also made with the Jamnagar City 'B' Division Police Station. On the basis of the complaint given by the complainant, the investigation was made and the charge sheet was filed for the alleged offence under Sections 498A, 306 and 114 IPC and it was tried by the learned Sessions Judge, Jamnagar after it was committed by the court of Magistrate.

5. In order to bring home the charges levelled against the accused persons, the prosecution examined the witnesses including PW- 3 - complainant - uncle at Exh.38, PW-4 - maternal uncle at Exh.122 and Aunti PW-5 Exh.124 and other witnesses.

6. After the recording of the evidence of the prosecution witnesses was over, the statement of the accused under Section 313 of Cr.PC was recorded.

7. After hearing the learned APP as well as learned Advocates for the defence, the learned Sessions Judge recorded the acquittal on appreciation of material evidence. It is this judgment and order, which has been assailed in the present appeal on the grounds stated in the memo of appeal. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. At the outset, it is required to be mentioned that at the time of hearing of the appeal, the appeal stand abated qua Respondent Nos. 1 and 3 (A-1 and A-3) (in-laws) and therefore this Appeal would survive only qua Respondent No.2 - husband (A-2).

9. Heard learned APP Ms. Monali Bhatt for the Appellant State of Gujarat and learned APP Mr. M.J.Buddhbhatti for the Respondent No.2 / Original Accused No.2.

10. Learned APP Ms.Monali Bhatt has referred to the testimony of the witnesses, including the testimony of PW-3 - uncle at Exh.38. It was submitted that he has specifically stated about the ill-treatment to the deceased. Learned APP Mr. Monali Bhatt has pointedly referred to the testimony of this witness about the nature of the harassment. It was submitted that this testimony is corroborated by the other prosecution witness - PW-4 - maternal uncle in his testimony at Exh.122. Learned APP Ms. Bhatt submitted that he is the maternal uncle staying near the matrimonial home and the deceased used to visit her. Learned APP Ms. Bhatt submitted that the previous day she has visited the maternal uncle. It is corroborated by the testimony of the other witnesses. Similarly, learned APP Ms. Bhatt referred to the testimony of Aunti - PW-5 at Exh.124 and the testimony of PW-8 at Exh.134. Therefore, learned Ms. Monali Bhatt submitted that the main prosecution witnesses has supported the case of the prosecution with regard to the offence under Section 498A regarding the harassment and cruelty meted out to the deceased. Learned APP Ms. Bhatt submitted that the span of marriage life is 2 years, it could attract the presumption. She has also referred to the letter at Exh.39 and the other letters and the documents to support her submission. It was submitted that the letter written by the deceased are further corroborated by the oral testimony of other witnesses regarding the harassment. She pointedly referred to the letter Exh.39 and submitted that the court below has failed to appreciate and dealt with the contents of this letter. Learned APP Ms. Bhatt has pointedly referred to the testimony of witnesses for the offence under Section 498A and submitted that, as it transpires, A-2 (husband) has beaten the deceased and the harassment was caused regarding domestic work. Learned APP Ms. Bhatt has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2013 SC 329 - Vajresh Venkatray Anvekar v. State of Karnataka, and referred to the observations with regard to the attitude and the beating to the wife. She emphasized the observations:

"The tenor of the judgment suggests that wife beating is a normal facet of married life. Does that mean giving one or two slaps to a wife by a husband just does not matter? ............................................... Assault on a woman offends her dignity. What effect it will have on a woman depends on the facts and circumstances of each case."


Learned APP Ms. Monali Bhatt therefore submitted that the court below has failed to appreciate the material and evidence in its proper perspective with regard to the alleged offence under Sections 498A and 306 IPC. Learned APP Ms. Bhat submitted that the deceased had a daughter of tender age and normally would not have committed suicide which is not appreciated by the court below. Learned APP Ms. Bhatt has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2013) 7 SCC 108 - Gurnaib Singh v. State of Punbaj.

11. Per contra, learned Advocate Mr.M.J.Buddhbhatti has referred to the testimony of witnesses and other evidence and submitted that the totality of the material and evidence is required to be considered. He submitted that as the appeal has abated qua Respondent Nos. 1 and 3 (A-1 and A-3), it would survive qua Respondent No.2 (A-2) husband only. Learned Advocate Shri Buddhbhatti submitted that the allegations against the Respondent accused husband is that he had beaten her twice and that she was listening to the mother only (mavadia). Learned Advocate Shri Buddhbhatti has also referred to the testimony of witnesses including the testimony of PW-3 at Exh.38 and pointedly referred to his testimony with the testimony of other witnesses. He submitted that as stated by the Aunti PW-8 (wife of the maternal uncle) in her testimony at Exh. 134, the deceased was going to the temple twice in a day and she used to meet the witness and they would talk for some time. She has also stated that the deceased used to visit her house from morning to evening. Similarly, learned Advocate Shri Buddhbhatti has referred to the testimony of PW- 4 and submitted that he has also stated that the deceased used to visit twice in a week to his house. Therefore, learned Advocate Shri Buddhbhatti submitted that the allegation that there were many restrictions or she was not allowed to go out, cannot be believed or accepted at the face value. He further submitted that the entire evidence admittedly does not refer to any demand for any dowry or harassment. Therefore, it only refers to the trivial quarrels over trivial matters regarding domestic work. He therefore submitted that such matrimonial discord or some trivial quarrels over domestic matters does not necessarily lead to suicide. He further submitted that there is no evidence about the beating by the husband just immediately before the act of suicide. He submitted that the time lag is relevant between the act of suicide and the instigation. He therefore submitted that the court below has discussed at length on appreciation of material evidence with regard to the evidence, the change of the stand or the improvisation, and reached to the findings and conclusion regarding the acquittal. Learned Advocate Shri Buddhbhatti submitted that even the letter at Exh.39 was not produced during the investigation, but it was subsequently produced during trial on the ground that it was sent by the father of the deceased, who is abroad. Learned Advocate Shri Buddhbhatti submitted that the genuineness of this letter also has been questioned, as it has not been produced at earlier point of time coupled with the fact that it has not been referred to the hand-writing expert. He submitted that therefore a quarrel at the matrimonial house over a domestic matters would not be a harassment amounting to cruelty. He submitted that the cruelty as defined under Section 498A has to be established by cogent evidence, which is absent in the present case. In support of his submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2009) 2 GLH 710 - State of Rajasthan v. Yusuf.

12. Learned Advocate Shri Buddhbhatti has referred to the scope of acquittal appeal and also submitted that if the two views are possible and if the view taken by the court is plausible, normally the appellate court would not disturb the finding. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 4 SCC 415 - Chandrappa and others v. State of Karnataka.

13. Learned Advocate Shri Nirav C. Thakkar for the Appellant appearing in Criminal Revision Application No. 272 of 2003 has vehemently submitted referring to the evidence with regard to harassment and cruelty. He also submitted that such conduct / harassment is established by the prosecution. He has also adopted the submissions made by learned APP at length.

14. In view of the rival submissions, it is required to be considered whether the impugned judgment could be sustained or not.

15.From the scrutiny and analysis of thematerial and evidence and the reasons recorded by the court below for acquittal, it cannot be said that the judgment is perverse or contrary to the material and evidence on record. From the entire material and evidence, it is evident that there are no allegations about any demand for dowry or any harassment on account of that. The main focus is with regard to the quarrel over the trivial domestic matters - like not allowing her to go out or having some restrictions, not helping the mother-in-law in her domestic work etc. There is also a case with regard to the beating by the husband on couple of occasions and supporting the mother, suggesting that he would accept what the mother says. Therefore, on appreciation of this evidence, it reveals that there was a domestic quarrel over trivial mattes regarding domestic work, the attitude of the in-laws (since they have expired, the appeal abates qua them). Therefore, as rightly submitted by learned Advocate Shri Buddhbhatti, the allegations qua the respondent husband is beating in the past without any reference to any particular incident and believing or listening to mother. It is in this background, if the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Disctionary, 9th Edition, p.686, "A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient." [emphasis supplied] Therefore, while considering this aspect, the provisions of Section 306 read with Section 107 regarding the abetment and the suicide has to be considered. There has to be evidence, by which it could be said that the respondent accused had instigated the deceased in such a manner or by creating the circumstances, which has led the deceased to commit suicide. The Hon'ble Apex Court in a judgment reported in (2010) 1 SCC 750 - Gangula Mohan Reddy v. State of Andhra Pradesh has observed:

"The word 'suicide' in itself is nowhere defined in Indian Penal Code, however its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself." The provision of abetment is defined in Section 107 of the Indian Penal Code. The ingredients are required to be established. The Hon'ble Apex Court in this judgment has observed that "This Court in Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi) had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words 'instigation' and 'goading'. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of selfesteem and self respect. Therefore, it is impossible to lay down nay straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances."

16. Therefore, the perception about harassment causing mental agony would differ. The impact of the 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 withstand the circumstances. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not. A useful reference can also be made to the judgment of the Hon'ble Apex Court reported in AIR 2002 SC 3270 - Mohd. Hoshan and another v. State of A.P.

17. The Hon'ble Apex Court in a judgment reported in (2001) 9 SCC 618 - Ramesh Kumar v. State of Chhattisgarh has made the obervations:

"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

In this judgment, the Hon'ble Apex Court has referred to Section 113A regarding the presumption and for the purpose of cruelty under Section 498A IPC has observed: "This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incrimianting evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation therefore must exist. A bare reading of Section 113A shows that to attract applicability of Section 113-A, it must be shown that (I) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subject her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case"."

Further, even with regard to letters at Exh.39, in similar circumstances, in the aforesaid case the Hon'ble Apex Court has made the observation that the letter has to be considered and the inference could be drawn in light of the material and evidence adduced in the case. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

18. Further, as there is no proximity between any so called instigation and the actual act of suicide, the same cannot be the basis for conviction for offence under Section 306 IPC. Similarly, for the offence under Section 498A, the cruelty as provided in the explanation to Section 498A has to be proved or established. It is well accepted that every domestic quarrel or the matrimonial discord would not be termed as cruelty. The Hon'ble Apex Court in catena of judicial pronouncements has made this position clear. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2014 SC 33 - Vinod Kumar v. State of Haryana and others, and also the judgment of the Hon'ble Apex Court in case of Ramesh Kumar v. State of Chhattisgarh (supra) regarding Section 306 and 498A read with Section 114 IPC for the cruelty. Similarly, the judgment of the Hon'ble Apex Court reported in (2002) 5 SCC 177 - Girdhar Shankar Tawade v. State of Maharashtra, has referred to this aspect of legislative intention for the explanation of cruelty. It may be added that the harassment or the cruelty need not be in the form of only physical assault and even the mental harassment could also be within the purview of Section 498A. However, for that purpose again there has to be a harassment or ill-treatment of such a nature that drives a woman to commit suicide because she is left with no option or the life has been made so miserable. Therefore, again it depends on the facts and the material evidence in each case. In the facts of the present case, as discussed above, has broadly referred to the domestic quarrel over the trivial matters regarding the domestic work, and therefore, it would fall short of the requirement for the alleged offence both under Section 306 and 498A IPC. The reliance placed by learned APP Ms. Monali Bhatt on a judgemnt of the Hon'ble Apex Court in case of Vajresh Venkartay Anvekar v. State of Karnataka (supra) is required to be considered in background of the facts, as in this very judgment, it has been observed:

"There cannot be any generalization on this issue. Ourobservation, however, must not be understood to mean that in all cases of assault suicide must follow. ............................"


19. Therefore, having regard to the aforesaid discussion and the matrimonial quarrel over the domestic work and the dominance by the in-laws even if it is assumed, would not support the prosecution case that it was of such a nature which could lead her to commit suicide. As discussed above, the suicide or tendency to commit suicide depends on various factors, including the sensitivity of the person.
Therefore, the moot question is whether the reasons arrived at for the findings and the conclusion can be said to be termed as perverse, which would call for any interference in the present appeal.

20. The Hon'ble Apex Court has laid down the broad guidelines with regard to scope of acquittal appeals in catena of judicial pronouncements. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in case of Chandrappa and others v. State of Karnataka (supra). The broad guidelines have been laid down, which clearly referred to the relevant factors, which are required to be considered and the approach depending upon the facts of the case. It has been specifically observed with regard to the relevant factors which are required to be considered for reversing the order of acquittal.

21. Therefore, in view of the aforesaid guidelines and scrutiny of material evidence, it cannot be said that the view taken by the court below is perverse or erroneous. Therefore, since the view taken by the court below is a plausible, this court declines to interfere with the same.

22. In the circumstances, the appeal deserves to be dismissed and accordingly stands dismissed.

23. Criminal Revision Application No. 272 of 2003 also stands disposed of in view of the aforesaid judgment.

(RAJESH H.SHUKLA, J.)

****************************************************

PDF version uploaded here http://1drv.ms/1rN158I

****************************************************


http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist