Full Judgment Text
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CASE NO.:
Appeal (crl.) 463 of 1996
PETITIONER:
GIRDHAR SHANKAR TAWADE
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 24/04/2002
BENCH:
UMESH C. BANERJEE & Y.K. SABHARWAL
JUDGMENT:
JUDGMENT
2002 (3) SCR 376
The Judgment of the Court was delivered by
BANERJEE, J. Maintainability of a charge under Section 498-A of the Code by
reason of an order of acquittal under Section 306 of the Code, is the core
question to be decided in the appeal against the judgement of the High
Court at Bombay.
Before, however, adverting to the factual score, it is to be noticed at
this juncture that Section 498-A has been engrafted on to the statute book
by way of a separate Chapter in terms of the provisions of Criminal Law
(Second Amendment) Act, 1983 (Act 46 of 1983). The above amendment stands
incorporated by reason of present trend in the society and to meet the
requirement of the society, the legislature thought it fit to incorporate a
new Chapter being Chapter XXA in the statute book consisting of Section 498
A in the Indian Penal Code. For convenience sake, Section 498 A is set out
herein below:-
" 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. Explanation-For the purpose of this section, "cruelty" means-
(a) any willful 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 of 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 basic purport of the statutory provision is to avoid ’cruelty’ which
stands defined by attributing a specific statutory meaning attached thereto
as noticed herein before. Two specific instances have been taken note of in
order to ascribe a meaning to the word ’cruelty’ as is expressed by the
legislatures : Whereas explanation (a) involves three specific situations
viz., (i) to drive the woman to commit suicide or (ii) to cause grave
injury or (iii) danger to life, limb or health, both mental and physical,
and thus involving a physical torture or atrocity, in explanation (b) there
is absence of physical injury but the legislature thought it fit to include
only coercive harassment which obviously as the legislative intent
expressed is equally heinous to match the physical injury : whereas one is
patent, the other one is latent but equally serious in terms of the
provisions of the statute since the same would also embrance the attributes
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of ’cruelty’ in terms of Section 498-A.
At this juncture, it would also be profitable to notice the other statutory
provision (Section 306) relevant in the present context. Section 306 of the
Code reads as below:
"306 Abetment of suicide-If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine."
The provision seems to be clear enough to indicate the abetment to commit
suicide is statutorily recognised to be an offence punishable with an
imprisonment for a term which may extend to 10 years together with
liability to fine.
On the factual score, it appears that the accused, Girdhar Shankar Tawade
has a son and two daughters from his first wife, who is no more, was
married to deceased Shobha in he month of February 1984 and the couple,
along with the son and two daughters of the accused, was staying jointly at
Undagaon. It appears that Shobha had no parents and one Chandrakant Katkar
is her younger brother : Whereas the complainant Vishnu Katkar is her
cousin brother. Vishnu and Chandrakant are residing at Buldhana and their
houses are opposite to each other.
The complaint (Exh. 11) lodged by Vishnu Katkar on 12.8.1988 reveals that
while Shobha was treated well by her husband for about six months after the
marriage, but conduct thereafter of the latter towards Shobha became
reprehensible and went on to the extent of assault on flimsy grounds. On
occasions when Shobha used to visit the complainant, the sordid takes of
her plight were made known to the complainant and on occasions Shobha used
to write to the complainant and Chandrakant, younger brother as well. On
one occasion upon coming to know of a bleeding injury being inflicted, the
complaint himself with one Abarao Ingle had been to the residence of the
accused so that similar treatment be not meted out to her at any future
point of time.
On the further factual score it appears that on 12.8.1988 at 6 P.M. one
Kondiba Dudhe, came to the complainant and informed that Shobha got burnt
and was admitted in the Ghati hospital and in the morning she died. It was
also informed by Kondiba that her husband has performed funeral on the dead
body of Shobha and the complaint by cousin brother Vishnu followed suit.
The complaint reads that Girdhar had not informed to the complainant and
his brother about the burn injuries to Shobha or of her admission in the
hospital and without waiting for the near relations, her funeral was also
conducted. It also appears from the complaint that Shobha has committed
suicide due to the ill-treatment of her husband.
It is on the basis of the complaint (Ex. 11) and upon compliance to the
required formalities the offence was registered bearing No. 67/88 and one
Syed Shaukar Hussain took over the charge of investigation on 13.8.1988.
Subsequently the latter however registered the offence under Sections 306
and 498-A IPC against the accused. The scene of offence was then visited
and under the panchanama (Ext 14) the stove (article No. 1) came to be
attached. The clothes of the victim were also attached. The inquest
panchanama (Ext. 16) was made and the dead body was sent to the hospital
where the post mortem was effected as per report (Exh. 17). PW 4 Sharad
Ugale (Exh. 21) then took over the investigation and on recording the
statement of the brothers of the deceased, attaching the letters (Exhs.
9,10 and 13) under panchanama and on completion other necessary
investigation and on arresting the accused on 11.1.1989 the PW 3 Syed
Shaukat submitted the charge-sheet against the accused for the aforesaid
offences. And the accused stood his trial in sessions case No. 118 of 1989
before the Additional Sessions Judge, Aurangabad. On appreciation of the
evidence on record, the trial Judge held the death of Shobha as accidental
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and further negatived the story of the prosecution in respect of offence of
abatement to commit suicide punishable under Section 306 IPC. Relying on
the evidence of the prosecution witnesses together with the letters of the
deceased the trial court, however, held the accused guilty of an offence
under Section 498-A IPC and by the impugned order dated 21.10.1989
convicted and sentenced the accused to suffer rigorous imprisonment for two
year and a fine of Rs. 1000.
The matter was taken to the High Court in appeal wherein the point under
consideration was whether evidence on record was sufficient to hold the
accused guilty of an offence of cruelty as provided under section 498A of
the Code.
We have had the opportunity to look at the statutory provisions earlier but
before elaborating thereon, some further basic facts together with its
ramifications ought to be noticed at this juncture.
There is on record available oral evidence of the brother as also of the
cousin, but both the trial Court and the High Court placed much greater
reliance on to the letters said to have been written by the deceased to the
cousin and the brother. The contents of the letters, however if read
together with the oral evidence lead to a situations which cannot but be
termed to be incredible. It is the younger brother’s evidence that
immediately after receipt of the letter dated 1.7.1986, wherein the
deceased complained of her head injury, the deponent sent his cousin
brother Vishnu and Abarao, the husband of the cousin sister to the village
of the accused to request the accused not to ill-treat the deceased and it
is 2-3 months thereafter Dudhe, the messenger, came to inform about the
serious conditions of the deceased in the hospital (Emphasis Supplied). In
contrast to this piece of evidence, there is a letter written to Vishnu by
the deceased in August, 1987 and more or less a similar letter in May, 1988
and the evidence of Vishnu is that after receipt of the letter in May,
1988, the latter along with Abarao went to the accused whereupon they have
requested the accused to treat the deceased well enough so as not to make
her unhappy. This witness Vishnu also stated unhesitatingly that 2-3 months
after their visit at the deceased’s husband place, Dudhe, the messenger,
came and informed him about the death of Shobha and of the subsequent
funeral at Aurangabad and it is immediately thereafter that the written
complaint was lodged about the ill-treatment of the deceased and her
subsequent death. Incidentally, the intimation to Vishnu by Dudhe was on
the same day as that to Chandrakant. One further redeeming feature of
available evidence on record is the factum of only one visit by Vishnu and
Abarao to deceased’s place: whereas PW-1 states that the visit was in July,
1986, Vishnu states in May, 1988 but both confirm that letters were
received just 2-3 months before the death of the deceased.
In the normal course of events, we are aware that appreciation of evidence
cannot be had under Article 136 but it would be travesty of justice in our
justice delivery system if such a bar is to linger on even on total
misappreciation of evidence leading to utter perversity. The younger
brother sent his cousin along with the cousin’s husband (brother-in-law) to
his sister’s house so as to appreciate the situation in 1986, whereas
cousin’s evidence on record that the only visit taken place to Shobha’s
house was in 1988. Thus as inherent contradiction interse leading to the
leading to the term of credibility of the oral evidence and it is in this
perspective that reliance thereon by both the Trial Court and the High
Court stands totally misplaced resulting in utter perversity. Another piece
of evidence available on record is the dying declaration of the deceased.
It is well settled that dying declarations shall have to be dealt with due
care and upon proper cirumspection. Though corroboration thereof not
essential as such, but its introduction is otherwise expedient to
strengthen the evidential value of the declaration. Independent witnesses
may not be available but there should be proper care and caution in the
matter of acceptance of the dying declaration as a trustworthy piece of
evidence.
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Presently, we have on record a statement before the Executive Magistrate by
was of a declaration which however does not lend any assistance in the
matter in issue and as such we need not dilate thereon further.
The only other piece of evidence available are the three letters written by
the deceased to the cousin and to the brother. These letters are of the
years 1986, 1987 and 1988 and 1988 apparently it seems an yearly event, but
does it go some way to record a state of affairs prevalent at the
deceased’s place of residence : it is stated to be undoubtedly depicting
so!! The prosecution alleged that there exists no natural variation by
reason of the lapse of time as regards the conduct of the accused person
and the true reading of the letter, without mixing words, depicts a
continuous state of affairs of torture by one to the other. It is on these
letters that reliance has been placed by the learned Sessions Judge as also
the High Court in order to come to a finding as regards the guilt under
Section 498-A of the Code.
We have already noted Section 498-A herein before in this judgment and as
such we need not delve upon the same in greater detail herein excepting
recording that the same stands attributed only in the event of proof of
cruelty by the husband or the relatives of the husband of the woman.
Admittedly, the finding of the trial Court as regards the death negated
suicide with a positive finding of accidental death. If suicide is rule out
then in that event applicability of Section 498-A can be had only in terms
of explanation (b) thereto which in no uncertain terms records harassment
of the woman and the Statute itself thereafter clarifies it to the effect
that it is not every such harassment but only in the event of such a
harassment being with a view to coerce her to 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-
there is total absence of any of the requirements of the Statute in terms
of Section 498-A. The three letters said to have been written and as
noticed earlier cannot possibly lend any credence to the requirement of the
Statute or even a simple demand for dowry.
As regards the core issue as to whether charges under Sections 306 and 498-
A of the Indian Penal Code are independent of each other and acquittal of
one does not lead to acquittal on the other, as noticed earlier, there
appears to be a long catena of cases in affirmation thereto and as such
further dilation is not necessary neither we are included to do so, but in
order to justify a conviction under the later provision there must be
available on record some material and cogent evidence. Presently, we have
on record two inconsistent versions of the brother and the cousin, as such
no credence can be attributed thereon - the documentary evidence (namely,
those three letters), in our view, falls short of the requirement of the
Statute : Even on an assumption of the fact that there is no contradiction
in the oral testimony available on record, the cousin goes to the
unfortunate girl’s in-laws place and requests the husband to treat her
well-at best some torture and a request to treat her well. This by itself
would not bring home the charge under Section 498-A. Demand for dowry has
not seen the light of the day.
A faint attempt has been made during the course of submissions that
explanation (a) to the Section stands attracted and as such no fault can be
attributed to the judgment. This, in our view, is a wholly fallacious
approach to the matter by reason of the specific finding of the trial Court
and the High Court concurred therewith that the death unfortunately was an
accidental death and not suicide. If suicide is left out, then in that
event question of applicability of explanation (a) would not arise -
neither the second limb to cause injury and danger to life or limb or
health would be attracted. In any event the willful act or conduct ought to
be the proximate cause in order to bring home the charge under Section 498-
A and not de-hors the same. To have an event sometime back cannot be termed
to be a factum taken note of in the matter of a charge under Section 498-A.
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The legislative intent is clear enough to indicate in particular reference
to explanation (b) that there shall have to be a series of acts in order to
be a harassment within the meaning of explanation (b). The letters by
itself though may depict a reprehensible conduct, would not, however, bring
home the charge of Section 498-A against the accused. Acquittal of a charge
under Section 306, as noticed hereinbefore, though not by itself a ground
for acquittal under Section 498-A, but some cogent evidence is required to
bring home the charge of Section 498-A as well, without which the charge
cannot be said to be maintained. Presently, we have no such evidence
available on record.
On the wake of the aforesaid, conviction as recorded by the trial Judge as
also by the High Court cannot be sustained. The appeal, therefore, is
allowed. The impugned orders stand set aside and quashed. The accused
stands acquitted of the charge under Section 498-A of the Code.