KANTILAL MARTAJI PANDOR vs. STATE OF GUJARAT

Reportable IN THE SUPREME COURT OF INDIA

Kantilal Martaji Pandor …… Appellant Versus State of Gujarat & Anr. ….. Respondents J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave under Article 136 of the Constitution against the judgment and order JUDGMENT dated 13.09.2007 of the Gujarat High Court in Criminal Appeal No.294 of 1994. FACTS 2. The facts very briefly are that the appellant was married to Laxmiben in 1980. The appellant, who was a Page 1 2 teacher, used to travel in a bus along with Amriben, who was also a teacher, for their work in their respective schools located at a distance of 2 kms. from each other. The

A daughter was born to Amriben in 1991. The appellant, Laxmiben and Amriben were living together in different portions of one house of the appellant in village Dhuleta Palla. On 26.03.1992, a letter written by Amriben was received in Shamlaji Police Station. In this letter, Amriben alleged inter alia that the appellant was more interested in money and not in love and he had threatened and kidnapped her, although he had a wife and three children and the appellant had cheated her and persuaded her to have civil JUDGMENT marriage on 21.08.1990. She further alleged in the letter that after marriage the appellant’s family was living on her salary and the appellant had started torturing her to a limit which was no longer tolerable by her and she was also not given meals and the appellant was threatening to kill her and for all this the appellant and his first wife Laxmiben and his other family members were involved. On 26.03.1992 in Page 2 3 the afternoon, the appellant came to the school of Amriben and enquired from the Principal of the school and the teacher of Amriben as to whether Amriben had made a

who usually took Amriben back from her school instead requested the Principal of her school, Ms. Timothibhai, to take seat on the scooter with him and as a result Amriben had to walk along with Lilavatiben, who was holding her little daughter, to the bus stand. During the night of 26.03.1992, the appellant slept with Laxmiben while Amriben slept with her new born daughter in another room of the house. On 27.03.1992, early in the morning, the appellant and Laxmiben heard the little daughter of Amriben crying and JUDGMENT they found that Amriben had jumped into the well and had died. 3. A post mortem on the dead body of Amriben (for short ‘the deceased’) was conducted on 28.03.1992 at 2.30 p.m. and the cause of the death was found to be drowning. Initially, on the report of the appellant, the Shamlaji Police Station registered an accidental death case under Section Page 3 4 174 of the Criminal Procedure Code, (for short ‘the Cr.P.C.’). Subsequently, however, on 03.04.1992 an FIR was registered by Shamlaji Police Station under Sections 498A and 306 of

allegations made by the deceased in her letter dated 26.03.1992 to the police station. Investigation was carried out and a charge-sheet was filed against the appellant and Laxmiben under Sections 498A and 306, IPC. 4. At the trial, amongst other witnesses examined on behalf of the prosecution, Ms. Timothibhai, Principal of the school, was examined as PW-1, the doctor who carried out the post mortem was examined as PW-2, the mother of the JUDGMENT deceased was examined as PW-3, Lilavatiben, co-teacher of deceased was examined as PW-4 and the Investigating Officer was examined as PW-10. The appellant also examined various witnesses in his defence. The trial court by its judgment dated 10.02.1994 in Sessions Case No.59/92 acquitted Laxmiben, but convicted the appellant under Sections 498A and 306, IPC, and sentenced him to simple Page 4 5 imprisonment for one year and two years for the two offences respectively and also imposed a fine of Rs.100/- for each of the offences. Aggrieved, the appellant filed criminal

judgment, the High Court acquitted the appellant from the charge under Section 306, IPC, but maintained the conviction and sentence on the appellant under Section 498A, IPC. Aggrieved, the appellant has filed this appeal. Contentions of the learned Counsel for the parties: 5. Learned counsel for the appellant, Ms. Aishwarya Bhati, submitted that in the impugned judgment, the High Court found the appellant to be guilty of the offence under Section 498A, IPC, because of some conduct or acts of the JUDGMENT appellant of which the deceased has complained of in her letter to the Police Station on 26.03.1992. She submitted that the High Court held that the acts or conduct of the appellant amounted to cruelty for which the appellant was liable for the offence under Section 498A, IPC, but did not amount to abetment of suicide within the meaning of Section Page 5 6 306, IPC. She submitted that the statements of the deceased in the letter of the deceased to the Police Station (Ext.10) were not proof of the acts or conduct of the

of the appellant did not amount to cruelty within the meaning of clauses (a) or (b) of the Explanation under Section 498A, IPC. 6. Ms. Bhati submitted that the evidence of PW-3, the mother of the deceased, would show that when the deceased was carrying the child, PW-3 had been to see the deceased and she did not find that the deceased had any food problem. She also referred to the evidence of PW-4 to show that the appellant’s conduct was not such as to JUDGMENT amount to cruelty or harassment within the meaning of clauses (a) or (b) of the Explanation of Section 498A, IPC. She submitted that the post mortem report (Ext.15), on the other hand, would show that the deceased was well- nourished and was well-built and did not suggest that she was starved of any food. Page 6 7 7. Ms. Bhati cited the decision of this Court in State of West Bengal v. Orilal Jaiswal & Anr . [(1994) 1 SCC 73] in which it has been held that the charges made against an

reasonable doubt and that the requirement of proof is not satisfied by surmises and conjectures. She also cited the decision of this Court in Manju Ram Kalita v. State of Assam [(2009) 13 SCC 330] wherein it has been held that for holding an accused guilty under Section 498A, IPC, it has to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time to the lodging of the complaint and petty quarrels cannot be termed as “cruelty” to attract the provisions of JUDGMENT Section 498A, IPC, though mental torture to the extent that it becomes unbearable may be termed as cruelty. She vehemently submitted that in this case the prosecution has not proved beyond reasonable doubt that the appellant was in any way guilty of any act or conduct which is of the nature described in clauses (a) and (b) of Section 498A, IPC, so as to amount to cruelty within the meaning of this Section and, Page 7 8 therefore, the appellant is entitled to be acquitted by this Court of the charge under Section 498A, IPC.

is the letter written by Amriben to Shamlaji Police Station on 26.03.1992 to the Police Station and submitted that there was sufficient evidence in Ext.10 to show that the appellant had treated the deceased with cruelty within the meaning of Section 498A, IPC. She also relied on the findings of the High Court in paragraph 15 of the impugned judgment in which the High Court has found the appellant guilty of the offence punishable under Section 498A, IPC. She vehemently argued that even though the High Court has found that the JUDGMENT appellant was not guilty of abetment of suicide within the meaning of Section 306, IPC, the appellant can still be held liable for the offence under Section 498A, IPC, if he had committed acts of cruelty towards the deceased. In support of this contention, she relied on the decision of this Court in West Bengal v. Orilal Jaiswal & Anr . (supra). Page 8 9 Findings of the Court: 9. Section 498A, IPC, under which the appellant’s

“ 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 purposes 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 JUDGMENT (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.” 10. It will be clear from the language of Section 498A, IPC, that if a husband subjects his wife to cruelty, he shall be punished with imprisonment for a term which may extend to Page 9 10 three years and shall also be liable to fine. The Explanation under Section 498A defines “cruelty” for the purpose of Section 498A to mean any of the acts mentioned in clause

there was no harassment by the husband with a view to coercing her to meet any unlawful demand for any property or valuable security or on account of failure by her to meet such demand. 11. The first limb of clause (a) of the Explanation of Section 498A, IPC, states that “cruelty” means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. In the present case, although the JUDGMENT trial court found the appellant guilty of conduct which had driven the deceased to commit suicide and hence liable for the offence of abetment of suicide under Section 306, IPC, the High Court has given a clear finding in paragraph 13 of the impugned judgment that the conviction of the appellant under Section 306, IPC, cannot be sustained in the eye of law and the appellant deserves to be acquitted of the charge Page 10 11 of abetment of suicide under Section 306, IPC. This part of the finding has not been challenged by the State in appeal before this Court and has, therefore, become final. Thus, the

was of such a nature as is likely to drive the deceased to commit suicide. 12. The second limb of clause (a) of the Explanation of Section 498A, IPC, states that cruelty means any wilful conduct which is of such a nature as to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. In the present case, the High Court has recorded findings against the appellant to hold him guilty of the offence under Section 498A, IPC, presumably for JUDGMENT “cruelty” which falls within the second limb of clause (a) of the Explanation under Section 498A, IPC. The relevant findings of the High Court in paragraph 15 of the impugned judgment are extracted hereunder: “As discussed earlier, permitting to enter his first wife in the house of deceased Amariben with new born child, is an act of the appellant – accused, which can be said to be Page 11 12

JUDGMENT Page 12 13

JUDGMENT 13. Obviously, the finding of the High Court that permitting the first wife to enter the house of deceased Amriben with new born child amounts to a cruel act is erroneous as such act cannot amount to cruelty within the meaning of second limb of clause (a) of the Explanation under Section 498-A, IPC. However, the High Court, relying Page 13 14 on the letter written by the deceased to the Police Station on 26.03.1992 (Ext.10), has also come to a finding that the appellant had starved the deceased of food when she was

his own family and had also subjected the deceased to other acts of mental cruelty. 14. The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under JUDGMENT Section 32(1) of the Indian Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. The High Court in the Page 14 15 present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC.

question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the Police Station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498A, IPC. 15. For taking this view, we are supported by the decision of this Court in Inderpal v. State of M.P. [(2001) 10 SCC 736]. In this case, Inderpal was charged and tried for the offence under Section 306, IPC, and convicted by the JUDGMENT trial court for the said offence of abetment of suicide. In appeal filed by Inderpal, the High Court found that the offence under Section 306, IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498A, IPC. This finding of the High Court was based on the evidence of the father, Page 15 16 mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exhibits P- 7 and P-8) written by the deceased Damyanti that Inderpal,

that apart from the statement attributed to the deceased, none of the witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P-7 and P-8 and this Court held that the contents of Exts. P-7 and P-8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of offence under Section 498A, IPC. The reasons JUDGMENT given by this Court in paragraph 7 of the judgment as reported in the SCC are as follows: “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases Page 16 17

16. In the present case also, except Ext.10, the letter written by the deceased to the Police Station on 26.03.1992, no other witness has spoken about the appellant having starved the deceased of food and having committed acts of mental cruelty to the deceased. On the other hand, the mother of the deceased (PW-3) has stated in her cross- JUDGMENT examination: “I have not recorded in my statement before police that Amri was giving her salary to her husband. It is not true that when I went to see Amri, at that time, my daughter was crying she had food problem, I say it is false.” Page 17 18 17. This being the evidence of the mother of the deceased, the High Court could not have come to the conclusion that the deceased was subjected to financial

appellant. Unlike the case of State of West Bengal v. Orilal Jaiswal & Anr . (supra) cited by Ms. Behera in which there was evidence of the husband coming home drunk and abusing and assaulting the deceased wife, in this case there is no evidence of any physical harm having been caused by the appellant to the deceased nor any acts of mental cruelty committed by him. Hence, the appellant cannot be held guilty of any cruelty within the meaning of clause (a) of the Explanation under Section 498A, IPC. JUDGMENT 18. In the result, we set aside the impugned judgment of the High Court and acquit the appellant of the charge under Section 498A, IPC. Since the appellant is on bail, his bail bonds be discharged. ..……………..……………………….J. (A. K. Patnaik) Page 18 19 ...…………..………………………..J. (Sudhansu Jyoti Mukhopadhaya) New Delhi, July 25, 2013. JUDGMENT Page 19