Gujarat High Court Case Information System
Print
CR.A/294/1994 36/ 36 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 294 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
KANTILAL
MARTAJI PANDOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
======================================
Appearance
:
MR KB ANANDJIWALA for
Appellant(s) : 1,
MR PD BHATE APP for Opponent(s) :
1,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
Date
: 03/09/2007
ORAL
JUDGMENT
1. The
Present appeal under Section 374 read with Section 386 of Criminal
Procedure Code. The appellant ? Original accused No.1 of Sessions
Case No.59 of 1992 tried and decided by the learned Additional
Sessions Judge, Sabarkantha at Himmatnagar, has challenged the
legality and validity of the conviction and sentence dated 10.2.1994.
2. One
co-accused – Laxmiben Kantinal, according to the prosecution, as the
first wife of the present appellant. Learned trial Judge acquitted
the co-accused – Laxmiben. So, the State had preferred appeal
against order of acquittal being Criminal Appeal No.381 of 1994, but
this Court refused to grant leave to appeal and the appeal thus has
been dismissed against that accused by this Court.
3. The
learned trial Judge has imposed S.I. of one year to the appellant ?
accused for the offence punishable under Section 498 (A) and of two
year for the offence punishable under Section 306 of Indian Penal
Code. The amount of fine imposed is Rs.100/- for each offence. The
quantum of punishment imposed by the learned trial Judge being too
lenient and inadequate, the State had therefore, challenged the order
of the punishment on its adequacy and prayed for enhancement for the
period of imprisonment by way of appeal under Section 377 of the
Criminal Procedure Code. The appeal under Section 377 was registered
as Criminal Appeal No.380 of 1994. The Court is informed by the
learned advocate appearing for the appellant that this Court has
dismissed the said appeal preferred by the State. In the order under
challenge, it is ordered that both the sentences imposed shall run
concurrently by the trial Court. In-default punishment imposed
period-wise, for both the offences.
4. Mr.
Anandjiwala, learned advocate has taken me through the basic case of
the prosecution and the evidence led during the course of trial is an
unnatural death and she has committed suicide. According to Mr.
Anandjiwala, the defence of the case so far as the charge of offence
punishable under Section 306 is concerned, the first set of
submission of Mr. Anandjiwal is that the death may not be because of
suicide committed by the deceased Amariben and it may be an
accidental death, as such there was no serious reason for her to
commit suicide. She had delivered a child in recent past and the
child was about two months. Ultimately, the deceased was self
sufficient serving as a teacher and competent to pull on the
physically and financially the rest part of the life even with the
child. So, it appears to be an accident and the learned trial Judge
ought to have held that the prosecution has not satisfactorily proved
the suicidal act of the deceased Amriben. Second set i.e. alternative
submission of Mr. Anandjiwala is that considering the evidence as it
is led by the prosecution, there is no iota of evidence under which
it is possible to conclude and even infer reasonably that the accused
has abated alleged in the alleged act of suicide committed by the
deceased Amriben. The document Exhibit 10 relied on by the
prosecution and accepted by the learned trial Judge is genuinely
proved document. The inference of abatement ought not to have been
thrown. On the contrary, the allegation made in document exhibit 10
is that the deceased was apprehended that she may be killed, it is
neither case nor charged against the accused that the deceased was
killed and she was thrown into the well from which her dead body was
found. She was physically fit and it can be inferred reasonably that
on account of some quarrel, a lady like Amriben, who was serving as a
teacher would commit suicide. The prosecution, as per the settled
legal position, was under the obligation to establish by leading
convincing evidence and placing circumstantial evidence on record
with certain act or omission of the accused, had led her to commit
suicide and it was also required to be proved that such conduct of
the accused had nexus with the act of committing suicide.
5.
The Courts have hammered in number of decisions that the prosecution
should establish satisfactorily that there must be a nexus between
the act and omission of the accused in the act of suicide otherwise,
it would be risky to infer mens ria. In some decisions, the Courts
have considered the proximity of time between the act or omission of
the accused, charge and actual act of suicide. The time of
commission of the offence is also appears to be a time selected by
the deceased herself. The accused may be in deep sleep and could not
have thought that the deceased would commit suicide during the night
hours.. So, the learned trial Judge ought to have given benefit of
doubt to the accused.
6. Mr.
Anandjiwala has drawn my attention to one decision in the case of
State of Gujarat Vs. Bharatbhai Babulal Lad and others.
reported in (2006) GLH 718. In this decision, the Division
Bench of this Court after considering the number of decisions of
Hon’ble Supreme Court, dismissed the acquittal appeal preferred by
the State and upheld the acquittal of the accused, who was charged
for the offence under Section 306.
7. It
is submitted by Mr. Anandjiwala that the documents Exhibit 10 relied
on by the learned trial Judge is most vulnerable document and is a
very weak piece of evidence. The learned trial Judge has not
considered the answers given by the hand-writing expert during the
course of trial. Considering the language of the letter and mainly
the title of the letter Exhibit 10, it becomes doubtful that this
letter was written prior to the act of suicide. The letter, if the
same is read as whole, gives an impression that it must have been
concocted with a view to implicate the accused and his legally wedded
wife into a serious offence. The learned trial Judge ought to have
observed that the document Exhibit 10 is not a reliable piece of
evidence as hand-writing in document Exhibit 10 are materially
different. Different witnesses examined, have stated on oath that the
hand-writing in document Exhibit 10 are not hand-writing of the
deceased Amariben, then the learned trial Judge ought not to have
believed the evidence of Principal of School and one another
co-teacher serving with deceased Amariben examined by the
prosecution. If the document Exhibit 10 is found not reliable, then
the accused deserves acquittal from both these offences for which, he
was charged. It is also submitted that if the document Exhibit 10 is
believed to be genuine and hand-writing of the deceased, then the
appellant ? accused ought not to have been linked with the offence
punishable under Section 498 (A) because the prosecution has to prove
that the accused was the husband of the deceased and to prove that
aspect, the prosecution was supposed to lead evidence to show that
the deceased Amariben was legally wedded wife to the accused. The
explanation given by the accused under Section 313 of Cr.P.C. while
explanation incriminating in evidence appears probably. Ultimately,
the appellant ? accused and the deceased belonged to the Schedule
Tribe and it is say of the accused that the deceased being educated
and literal lady, was attracted to the accused, therefore, both of
them were residing in the house as friends. Merely because the
accused has accepted that the deceased conceived a child, when they
were staying together in a house and he had accompanied her even in
the hospital when she was to deliver a child would not confer the
status of the husband within meaning of Section 498 (A) of Indian
Penal Code.
8. In
support of his arguments, Mr. Anandjiwal has placed reliance on one
judgment in the case of Ramnarayan and others Vs. State of M.P.,
1998 (3) Crime 147. The Madhaya Pradesh High Court was dealing
with the legality and validity of the charge framed by the learned
trial Judge and it was submitted that the accused could have been
prosecuted with the offfence punishable under Section 498 (A) as the
deceased was not a legally married woman to the accused. According to
the fact of the cited decision, the deceased was second wife of the
applicant ? accused No.2 and his first wife was alive. The deceased
second wife had committed suicide by consuming poison and the
applicant ? accused was charged for the offence punishable under
Section 304B and 498 (A) of Indian Penal Code. According to
Mr.Anandjiwala, the learned Judge of Madhaya Pradesh High Court has
considered two decisions of the Hon’ble Supreme Court : One is case
of Bhaurao AIR 1965 SC 1564 and another in the case of Yamunabai AIR
1998 SC 644. The Madhya Pradesh High Court held that the applicant ?
accused cannot be said to be a husband of the deceased within meaning
of Section 498 (A) of Indian Penal Code. The ratio laid down in this
decision possible would help the accused.
9. Learned
A.P.P. Mr. P.D. Bhate has placed his resistance to the submission
made by Mr. Anandjiwala and according to Mr. Bhate, if the document
Exhibit 10 is believed to be genuine document and is valid piece of
evidence, then the finding of the guilt recorded by th learned trial
Judge should be upheld. The learned trial Judge has assigned sound
reasons from para 14 onwards of the judgment and it is not necessary
for this Court to assign independent reason for confirming this
judgment by adopting assigned reasons by the learned trial Judge.
This Court should dismiss the appeal. There is no scope to believe
that the death of the deceased may be an accidental death. There was
no reason for the deceased to go to well at odd hours and that too
without informing her husband or the appellant ? accused, who was
very well present in the house, especially when a sucking child was
very well in the house. The scene of offence – Panchnama on the
contrary creates an impression that the deceased must have jumped
into the well with the determination under an emotional over
depressed state of mind. According to Mr. Bhate, the appellant ?
accused is a person responsible for the state of the mind of
deceased, because this was only person, who was present in the house,
otherwise the deceased had no reason to commit suicide, especially
when she was self sufficient being a Govt. servant. If she was afraid
about her relation with the appellant accused, she was not conceived
a child and/or delivered the child. The deceased must be determined
lady and therefore, only she started residing with the appellant –
accused. In such a situation, the death on account of the accident,
it does not look probable and acceptable and with this background, if
Exhibit 10 is read, it is clear that only harassment and torture of
the accused had led her to the act of suicide. Alternative submission
made by Mr. Bhate is that if the Court is of the view that there is
no sufficient evidence to link the accused with the offence
punishable under Section 306, then at least this Court should uphold
and confirm the conviction recorded by the learned trial Judge for
the offence punishable under Section 498 (A). According to Mr. Bhate,
to prove the relationship between the accused and deceased as husband
and wife, the learned trial Judge was supposed to consider the
conduct of the parties and their day-to-day behaviour. Undisputedly,
both were the Govt. servants serving as teachers. The mother of the
deceased, who had been examined by the prosecution has proved that
under which circumstances the deceased decided to stay with the
accused. She has stated on oath that her daughter had married with
the accused, but as per the caste customs, the accused was supposed
to call the parents of the girl i.e. herself and her husband etc.
but, till Amriben committed suicide. She has also stated that the
deceased Amriben was not treated well by the accused. It is in her
evidence that she had visited even the resident of the deceased, so
that it is 0clear from the evidence that the deceased and the present
appellant ? accused were living a life with harmony at least during
the day when she committed suicide.
10. After
investigation, the present appellant – accused as well as his first
wife Laxmiben were chargesheeted and it is allegation that because of
the conduct and behaviour of both these accused and mainly the
accused No.1 was the cause of the commission of the suicide in recent
past date of the incident, it is clear that the deceased was
ill-treated. In the letter Exhibit 10 received in evidence and the
contents thereof have been considered by the learned trial Judge and
according to Mr. Bhate, learned A.P.P., this document is sufficient
to prove the mental cruelty to its extreme. This letter proves that
some civil marriage ceremony performed between the accused and the
deceased at Himatnagar on 21.8.1990 and thereafter, she was led to
financial exploitation. She was threatened to dire consequences of
death. It is true that the letter Exhibit 10 itself is not a dying
declaration as the deceased had expressed apprehension that she may
be perhaps killed. The title of the letter is sufficient to infer
that the deceased was apprehending a death either at the hands of the
accused persons or at their instance. It is not the say of the
prosecution that the deceased was killed or was pushed into a well
forcibly against her wish, but the police was under obligation to
investigate that why this educated economically self sufficient lady
having infant child has committed suicide and this letter Exhibit 10
has resolved all these questions those were cropped up in the mind of
persons, who had knowing the deceased, relatives of the deceased and
the machinery under legal obligation to trace the truth. The mother
of the deceased has substantially supported the case of the
prosecution, but for the want of other social tie, it was not
possible for her to unfold the details of the conduct of the accused
towards the deceased. The evidence therefore, has been led before the
learned trial Judge as it is and the version of the mother of the
deceased examined, corroborates the contents of the letter received
by the police. Initially, the incident was recorded as a accidental
death and one of the arguments of Mr. Anandjiwala is that the
deceased may have died accidentally and the death may not be suicidal
death, but the say of Mr. Bhate, learned A.P.P. is that there was no
reason for the deceased to go to a well at odd hours after midnight
and during very early hours of the day leaving the accused with
infant child behind. The well was not at that distance from the
residence. chapples were found near the well. As per the say of the
prosecution, on 26.3.1992, the accused No.2 Laxmiben and accused
No.1- present appellant were also there in the house. The application
dated 26.3.1992 was received by the police in envelope and for the
application, the entry was made in the register of the police
station. That entry No.64 of 1992 has been proved by P.W.10, P.S.I.
Mr. R.A. Patel. The application was handed over to the Head-constable
Mr. Pashabhai and it is say of the P.W.10 that this application must
have been written before about a day or two. The application was
received by the police on 26.3.1992. Thereafter, on 27.3.1992, the
police was intimated by the appellants – accused about the incident.
So, to resolve confusion, the police had ample exercise to find out
whether application Exhibit 10 is the application genuinely written
by the deceased Amariben, so this letter was sent to hand-writings
expert and his finding is that the letter in question, a document
Exhibit 10 was written by the person, who is author of undisputed
writings, meaning thereby, the deceased Amariben. Undisputedly, the
said handwritings have been recovered from the custody of the
genuine person and school records etc. and the handwritings of
deceased Amariben is undisputed document as well as handwritings of
Exhibit 10 have been proved by the independent witnesses including
P.W.1 – Timothibhai Daudbhai Damor Exhibit 9. He was Principal
teacher of the school of village Bhetali and the deceased was serving
in the school since last about 5 years. He was knowing the appellant
accused also as a teacher serving in Primary school of Jesingpur and
the distance of Jesingpur and Bhetali village is also come on record,
that of 2 Kms. only. According to this witness, the primary school of
Jesingpur is in the groups school of village Bhetali. This witness
has proved the relation between the deceased and the appellant No.1
accused. He has also proved handwritings of the deceased Amariben
including documents from the School Credit Society. He has stated on
oath that he knows the signature of the deceased Amariben. The
Muddamal, article No.8 is the daily note, which requires to be
maintained by the teacher and that note was of the deceased Amariben.
After proving handwritings of Muddamal, article No.8, a note has been
received vide Exhibit 11. So, it was possible for the court even
under Section 73 of the Indian Evidence Act to give look and compare
the handwritings of Exhibit 10 and other undisputed documents written
by the deceased Amriben. In that situation, the evidence of experts
can be said to be an important opinion evidence, which corroborates
to the case of the prosecution and the version of P.W.1, the document
Exhibit 1 is a genuine document written by the deceased Amariben
prior to hours through which she has complained about cruelty.
11. According
to Mr. Bhate, learned A.P.P., the findings recorded by the learned
trial Judge may be upheld.
12. Present
Appeal is under Section 374 read with 386 of Criminal Procedure Code
and therefore, the Court is supposed to evaluate the entire set of
evidence while upholding the ultimate findings. Considering the
settled legal position, if the evidence led by the prosecution is
evaluated then it is difficult for this court to accept that the
prosecution has successfully brought the charge of offence punishable
under Section 306 of Indian Penal Code. The deceased was well
educated lady and financially self sufficient. She was bold enough to
give birth to a child because of her relation with appellant No.1 –
accused. Ultimately, the deceased was a member of Schedule Tribe and
caste customs does not prevent such relation. The relation between
the deceased and the accused were old. It emerges from the document
Exhibit 10 that before entering into co-habitation with the accused,
some formalities have been performed at Himatnagar, which is referred
to as “Civil Marriage”. The police could have investigated
and collected the documents to substantiate statement in this regard
in document Exhibit 10, but non production of any documentary
evidence in this regard, would not go against the prosecution because
the Principal teacher of the School, the mother of the deceased and
other witnesses have proved that the deceased Amariben may be the
second wife of the appellant – accused. There is no evidence on
record to show that what time prior to the commission of suicide, she
was ill-treated or insulted. The entry of accused No.2 in the house
on the date of the incident or some days prior thereto, may have
envied her. But it is also in evidence that the deceased was aware
that the appellant – accused is a married man and she had decided to
be a second wife of the accused against the will and wish of her
parents and they have also accepted that relation and there were
witnesses by socially compromise to be accepted the appellant accused
as officially their son-in-law.
13. The
mother examined by the prosecution, P.W. 3 has simply stated that she
was even aware about the delivery of the child, but desire of the
parents including mother was that as per the caste customs, the
accused should discharge his customary obligation. She has used
words, which are popularly known amongst tribal i.e. these words are
“Lafru Bhangvu”, meaning thereby, the marriage performed by
the girl against will and wish of her parents can be regularised on
discharging social obligation by distributing sweets etc. to the
members of family of bride. That obligation was not discharged by the
accused and that grievance has been expressed by this witness –
mother P.W.3 Ratanben. According to her, on the date of incident,
“Lafru” was till existing and was not performing by any
customary right, so the such lady whether would commit suicide or
would resolve to any other action, is a question. The letter
addressed to the police is nothing but an expression of apprehension
that she apprehended about her death at the hand of the accused
person i.e. present appellant accused and his first wife. So, if the
police found that the author of the letter is dead then the police
can investigate whether the death is natural or homicidal. The head
of the letter Exhibit 10 clearly suggests that she might be feeling
higher insecurity and unsafe. She has also stated that financially
exploitation has been made in past and still that activity was going
on by the appellant No. 1 – accused. The entry of his wife i.e.
original accused No.2 in the house on the date of incident or any
day, prior to the day of incident may have envied her and her entry
in the house perhaps was viewed as a planned action of the accused
No.1 and therefore, the letter was written to the police, which was
received by the concern police station and entry in the police diary
was made. So, when the accused No.1 and his first wife were sleeping,
the deceased had left the house and committed suicide. Nobody is in
this world, who can explain that why she jumped into a well. Perhaps
there were possibility that his husband may be found sleeping with
his first wife in her house i.e. in the house of the deceased.
Whatever that it may, but the act of the suicide is individual act of
the deceased and it is difficult for this Court to say that the
present – accused No.1 had abated in that act. It was not possible
for her to live in the house with child, when the appellant was
sleeping with his first wife peacefully and may have taken other
legal records, then it is probable that she may have jumped into a
well under depression or frustration of insecurity. It would not be
sufficient to link the appellant – accused with the crime punishable
under Section 306 and the findings of the learned trial Judge to link
the accused with the offence punishable under Section 306 appears to
be more moral than legal. The prosecution is supposed to prove by
sufficient evidence may be circumstantial with the act or behaviour
of the accused was equal to an abatment with act may be overtaken or
may be an omission. True it is that suicide was expressed as result
and outcome of the cruelty physically and mentally as the deceased
was being financially exploited by the accused . The appellant –
accused ought not to have been permitted to enter his first wife in
the house when the deceased had returned back with her new born
child. So, the conduct of the accused is found in cruelty and
torturous to the deceased. It was not sufficient for the Court to
link the accused with the offence under Section 306, so such
conviction cannot be sustained in the eye of law and the accused
deserves to be acquitted from the charge of all these offences.
14. But
the evidence that has been pointed out and referred hereinabove,
while narrating the submissions by the learned advocate of the
appellant – accused as well as learned A.P.P., according to me, the
prosecution has satisfactorily established the charge of the offence
under Section 498 (A) by leading cogent and convincing evidence. The
mother of the deceased Ratanben – P.W. 3 has proved something about
the situation that on the date of the commission of the suicide, his
first wife Laxmiben was present in their house, where the deceased
was is in circumstances of mental cruelty. She has narrated the
details about the nature of mental cruelty that she was facing
including financial exploitation in the document Exhibit 10. It is in
the evidence that she had expressed about the conduct of the
appellant – accused to the school Principal. P.W.1, Principal of
school teacher has stated on oath that the deceased was on pregnancy
leave, so the Department had accepted that the deceased was granted
pregnancy leave. According to this witness, the deceased Amariben had
delivered girl child at village Jashvantpura and thereafter, the
appellant – accused had brought back the deceased Amariben to their
home at village Bhetali. It is stated by this witness that the
appellant – accused had come in the school on 26.3.1992 in the
afternoon, and made an inquiry about where the deceased Amariben had
given any application and where this witness known about that through
one other teacher Lilivatiben was called to inquire into query placed
by the appellant. But on that day, deceased Amariben had not
responded to the query. On that evening, the appellant – accused had
come to School again and had requested this witness to take seat on
the scooter, at that time, this witness had said that when deceased
Amariben was carrying on girl child, he may be taken on the scooter,
but the accused had insisted, so that this witness took seat on his
scooter and thereafter, the appellant – accused rode the scooter and
he had left the school. At that time, the teacher Lilavatiben was
also with deceased Amariben and this witness was not aware as to how
the deceased Amariben and Lilavatiben had returned to their
respective homes. It is stated by this witness that the incident had
occurred on 26.3.1992 between appellant – accused and deceased
Amariben, had never happened in the past. He had stated that he had
never thought for this conduct of the appellant – accused and after
few hours, it was clear that the deceased Amariben committed suicide.
Ignorance of literal wife and or indirect insult is mental cruelty.
15. 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 a cruel act. The document Exhibit 10
indicates that she was financially exploited and the demand of money
were made by the appellant – accused frequently. She has stated that
on account of this, she was falling in starving. It is not in
evidence that this Court can notice on one fact based on biological
reasons assigned that the pregnant lady or lady, who has given birth
to child, need more food, as such women are feeling more hungry then
other normal women. She was facing very much financial problem and
there should be possibility to go into depression and the present
appellant – accused was the responsible person for creating this
situation. The deceased was dropped woman, but self respect is
privilege of each individual. The accused depended on the income of
deceased Amariben after performing second marriage with her and was
under legal as well as moral obligation to see that she may be
treated well and may not be felt to insult or ignore. It is settled
position that the cruelty includes mental cruelty, physical marks
falls over the body are not required to be proved by the prosecution.
The date of the application received by the police is 26.3.1992 and
the evidence of P.W. 1 also show that on 26.3.1992, the appellant –
accused had come to the school to inquire whether the deceased
Amariben had made an application to the Principal of school or not.
He must have been frightened that the deceased may complaint
genuinely to the school authority and Government and he may lose the
job or at least, may invite some departmental action, so anxiety of
the appellant – accused is found, which is exposed in the deposition
of P.W.1. When the deceased Amariben felt in creating apprehension in
the mind that she may be killed by her husband is sufficient to
conclude that the wife must have been treated with cruelty either
mentally or physically or both types of cruelty and that too
frequently made otherwise the defence ought to have prove that she
was a patient of depression. No such suggestive evidence made to the
school teacher or other witnesses including mother. Meaning thereby,
there is sufficient evidence to show that the deceased was treated
with cruelty and that had led her to frustration and thereafter,
depression, this is not an act of commission of suicide of a lady
with child. She had decided to jump into the well leaving the child
and accused behind, therefore, the act of the suicide appears to be
intentional act to get rid of the frequent insult, ignorance and
exploitation. The learned trial Judge has rightly linked the accused
with the offence punishable under Section 498 (A). There is no error
in evaluating the evidence so far as cruelty is concerned.
16. The
evidence of the expert, P.W.1 Principal vis-a-vis other undisputed
documents written by the deceased Amariben have been considered by
me. A fair comparison of these documents from the original R & P,
which before this Court and the detail cross-examination made by
handwritings expert, it is not possible for this Court to accept the
say of Mr. Anandjiwala that the document Exhibit 10 is got up
document or created document after commission of suicide. The
background under which the letter must have been written, have been
discussed in earlier paragraphs and I have recorded the reasons and
also finding that the letter clearly reveals that she was treated
with cruelty by the accused also and therefore, only she had started
feeling unsafe and was also apprehending that she may be killed. It
is not possible for this Court to observe that the learned trial
Judge has committed any error in receiving the document Exhibit 10 in
evidence and same is reliable piece of evidence to bring all the
charge of offence punishable under Section 498 (A). The evidence of
the mother corroborates the case of the prosecution about the
cruelty. When it is not matter of dispute that the accused No.2 was
present in the house on the day on which the deceased committed
suicide and the letter received by the police was written perhaps to
before a day or two of the date of incident, also is the
circumstances which is fulfilled by prosecution and not the accused.
For short, the prosecution has proved that the deceased was treated
with cruelty, which is punishable under Section 498 (A) of Indian
Penal code.
17. It
is difficult to accept the say of Mr. Anandjiwala, learned advocate
that there is no evidence of presence of the accused No.2 in the very
house, where the accused and the victim were there on that very
night. The written explanation given by both the accused persons,
which is not signed by both of them and has been tendered as joint
explanation is an attempt to explain adequacy that had occurred at
the time of explanation. Both of them jointly signed as they started
inquiring about the deceased Amariben as she had been returned after
complying call of nature. It is claimed by both of them that the
deceased Amariben had outside the house to reply the call of nature
and the well is near one water tank and the machine is fixed on it
and at the time of fetching the water from the water tank, and under
the hysterical, she had fallen into the well. They have claimed that
perhaps she may have fallen in the well because of mental stress from
one Rameshbhai. This explanation is a typed document explanation and
it is added that the level of the well is later than the level of
earth and when they inquiring about deceased Amariben, they came to
know that she had fallen down in the well. They have claimed that
thereafter they had informed Shamlaji Police Station. They were to
ask to sit in the Shamlaji Police Station and an application was
given with the signature of accused No.1. Both of them claimed that
the contents of the application are not correct details and same has
been written by the police when informing them and they were not even
to make understand, when this facts have been stated. It would not be
proper for this Court to accept the say of Mr. Anandjiwala, learned
advocate that the accused No.2 was not present in the house at all.
18. Both
the accused have explained that the deceased Amariben was not a
legally wedded wife to appellant – accused. They have also stated
that there are rituals, which required to be performed to regularise
the marriage performed as per the custom. The defence witness
examined vide Exhibit 75 i.e. one Maljibhai Dhanjibhai Kharade has
stated that to avoid embargo of irregular marriage, which is
popularly known as “Lafru”, firstly, the girl is required
to be sent at the house of the parents and after payment something,
in presence of the members of the community, the girl is again sent
with the boy. It is submitted that this procedure was not followed,
so the deceased Amariben cannot be said to be a wife of the appellant
– accused and to bring all the charges of the offence punishable
under Section 498 (A) of Indian Penal Code, the prosecution is
supposed to establish that the case prosecuted is against husband or
relatives of the husband or person in relation of the husband. It
would be beneficial to reproduce the relevant Section 498 (A), while
interpreting the scheme of Section 498 (A) of Indian Penal Code.
19. Section
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.”
20. The
case of Ramnarayan & Others (Supra) relied upon by Mr.
Anandjiwala, wherein Madhaya Pradesh High Court has observed that “It
must be shown that the victim woman was legally married woman. Import
of provisions could not be extended so as to include a woman married
impact, but whose married was void.”
10.1 In
para 8 of the judgment in the case of Ramnarayan (Supra), Madhaya
Pradesh High Court has observed thus, but this Judgment would not
help the appellant – accused because the same subsequently has been
overruled by the Hon’ble Apex Court in the case of Reema Aggarwal
Vs. Anupam and Others (2004) 3 Supreme Court Cases 199.
When the attention of Mr. Anandjiwala was drawn, he has fairly
submitted that he was not aware about the observation made by the
Hon’ble Apex Court. In reference to the decision of Madhaya Pradesh
High Court in Ramnarayan case (Supra), the ratio laid down in the
case of Reema Aggarwal Vs. Anupam and others (2004) 3, SCC 199 and
equivalent to 2004 (3) Crime 199 is the the case of the prosecution.
The learned advocate Mr. Anandjiwala has attempted to distinct the
ratio of the judgment in case of Reema Aggarwal (Supra) and he said
that the facts of the present case are materially different. In the
case before the Hon’ble Apex Court, the second wife was harassing by
legally wedded wife and therefore, the victim wife prosecuted her
husband and the second wife. According to me, the description in the
case of Reema Aggarwal (Supra), mainly paras 8, 9 and 10 is directly
answered to the points agitated by Mr. Anandjiwala. It would be
beneficial to reproduce the relevant paras of the judgment.
“8. In response, learned counsel for the respondents submitted
that to constitute a marriage in the eye of the law, it has first to
be established that the same was a valid marriage. Strong reliance
was placed on Bhaurao Shakar Lokhande V. State of Maharashtra
in that context. Reference was also made to Section 5 (i), 11 and 16
of the Hindu Marriage Act, 1955 (for short “the Marriage Act”)
to contend that the stipulations of conditions of a valid marriage,
the circumstances in which the marriage becomes void and the
protection given to children of void and voidable marriages
respectively makes the position clear that wherever the legislature
wanted to provide for contingencies flowing from void or voidable
marriages, it has specifically done so. It is latently evident from
Section 16 of the Marriage Act. There is no such indication in
Section 498-A IPC. The language used is “husband or relative of
the husband”. Marriage is a legal union of a man and a woman as
husband and wife and cannot extend to a woman whose marriage is void
and not a valid in the eye of the law.
9. The marriage contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as
being that which was contracted from a sense of duty and not merely
for personal gratification. When the fact of celebration of marriage
is established, it will be presumed in the absence of evidence to the
contrary that all the rites and ceremonies to constitute a valid
marriage have been gone through. As was said as long back as in 1869
“when once you get to this viz. that there was a marriage in
fact, there would be a presumption in favour of there being a
marriage in law”. So also where a man and woman have been proved
to have lived together as husband and wife, the law will presume,
until contrary be clearly proved, that they were living together in
consequence of a valid marriage and not in a state of concubinage.
The bare fact that a man and woman live as husband and wife does not
at rate normally give them
the status of husband and wife even though they may hold themselves
before the society as husband and wife and the society treats them as
husband and wife.
These observations were cited with approval in Surjit Kaur V.
Garja Singh. At first blush, it would seem that these
observations run counter to the long catena of decisions noted above.
But on closer examination of the facts of those cases it is clear
that this Court did not differ from the views expressed in the
earlier cases. In Lokhande case, this Court was dealing with a
case of prosecution for bigamy. The prosecution had contended that
second marriage was gandharava form of marriage and no ceremonies
were necessary and, therefore, did not allege or prove that any
customary ceremonies were performed. In that background, it was held
that even in the case of gandharva under Section 494 IPC, the second
marriage had to be a valid marriage at all in the eye of the law and
was therefore, invalid. The essential ingredient constituting the
offence of bigamy is the “marrying” again during the
lifetime of husband or wife in contract to the ingredients of Section
498-A which Lamont other things, envisage subjecting the woman
concerned to cruelty. The thrust is mainly on “marrying” in
Section 494 IPC as against subjecting of the woman to cruelty in
Section 498-A. Likewise, the thrust of the offence under Section
304-B is also on “dowry death”. Consequently, the evils
sought to be curbed are distinct and separate from the persons
committing the offending act and there could be no impediment in law
to liberally construe the words or expression relating to the persons
committing the offence so as to rope in not only those validly
marriage but also anyone who has undergone some or other form of
marriage and thereby assumed for himself the position of husband to
live, cohabit and exercise authority as such husband over another
woman. As the prosecution had set up a a please of gandharva marriage
and had failed to prove the performance of ceremonies, it was not
open to fall back upon the presumption of a valid marriage. It was
further held that there was no such presumption, if the man was
already married. In Surjit Singh Case the stand was that the marriage
was in karewa form. This Court held that under the custom of karewa
marriage, the widow could marry the brother or a relation of the
husband. But in that case, the man was stranger. Further, even under
the form of marriage certain ceremonies were required to be performed
which were not proved. Dealing with the contention relating to
presumption, reference was made to Kokhande case. As the parties had
set up a particular form of marriage which turned out to be invalid
due to absence of proof of having undergone the necessary ceremonies
related to such form of marriage, the presumption of long
cohabitation could not be invoked.
10. The presumption may not be available in case, for example, where
the man was already married or there was any insurmountable obstacle
to the marriage, but presumption arises if there is strong evidence
by documents and conduct.
21. The
findings of the Hon’ble Apex Court is that the husband after
conducting second marriage during subsistence of earlier marriage,
can be charged under Section 304B and 498 (A) of the Indian Penal
Code. Here the appellant – accused is a husband, who has been held
guilty of the charge for the offence punishable under Section 498
(A), who had posed himself to be a husband of the wife. He had
approached the school Principal in the capacity of husband of the
deceased Amariben and had inquired whether the deceased Amariben had
made any application or given application to the Principal teacher
and the fact stated that the deceased Amariben and in capacity of the
husband has not been disputed by substantially. On the contrary, the
appellant – accused has not disputed that he is a father of the child
delivered by the deceased Amariben. The accused No.2 has been
acquitted, has claimed that the deceased Amariben was visiting even
her house and she had helped her at the time of her delivery of girl
child. Whether the marriage is accepted as valid by relatives,
friends and others for long time, it cannot be declared invalid, it
is specifically mentioned in document Exhibit 10 that before
cohabitation, some formalities were observed at Himatnagar. Even the
defence side has accepted substantially that the appellant – accused
has accepted the deceased Amariben as his wife and she had started
residing with the appellant – accused as husband and ultimately, she
became mother of the a child. When no specific ceremony was required
to be performed prior to cohabitation, the ceremony which was
required to be performed can be said to be a formalities carved out
by the society before approving the marriage performed by the man and
woman from the Schedule Tribe. The marriage that was performed
between the appellant – accused and deceased Amariben was contrary to
the customs of the Tribes on which they belonged. So the marriage was
not accepted by the family of the deceased Amariben, therefore, the
existence of marriage is one fact and its acceptance by the family of
either of the spouse is a different thing.
22. In
the case of John Idiculla and another Vs. State of Kerala and
another reported in 2005 Cri. L. J. 2935, whereby Kerala High
Court has observed the second wife of the husband, who married with
the applicant subsistence of his early legal marriage was considered
to be a person relative to the husband for the purpose of Section 498
(A). In this case, the first wife was being harassed by the husband
as well as second wife and the defence plea whose second wife cannot
be said to be a person in relation to the husband because there was
no legal or valid marriage between the second wife and the husband
and the complainant woman. The ratio of this judgment would help the
prosecution. The phrase second wife is sufficient to confer the
status to marry with the husband. There is clear distinction between
a kept or concubinage a second wife. The appellant – accused belongs
to class of persons i.e. Tribes where the marriage are being
performed as per the rituals accepted by particular time and what
could have the position, if “Lafra” could have resolved by
the family members of the deceased Amariben, is crucial question
where the deceased Amariben could have got the status of wife or she
would remain second wife because it is difficult for this Court to
believe as submitted by Mr. Anandjiwala that the deceased Amariben
would not have got status of wife as the marriage of the appellant –
accused was very well in existence.
23.
In the case of State of Karnatak V. Shivraj and another
reported in 2002 Cri. L.J. 2741, Karnataka High Court has
observed that “unless and until it is specifically pleaded,
contested and established that marriage in question was void, the
Court will presume marriage to be valid one and parties to be treated
as husband and wife. Here the original accused No.2 was chargesheeted
with the present appellant – accused, saying that she is the wife of
the appellant – accused, but the marriage performed between the
deceased Amariben and the appellant – accused is being a marriage
performed as per the caste customs and rituals of the Tribes of which
they belonged to. So, it is difficult for this Court to observe that
as certain rituals i.e. after marriage ceremony were not performed,
which was required to be performed to satisfy the family members of
the deceased Amariben including the mother of the deceased Amariben
etc. would go to the root or strength of the validity of the
marriage. It is difficult for this Court to observe that the codified
Hindu Law was applicable to the appellant – accused and the deceased
Amariben being the members of Schedule Tribe in stricto senso. The
Hon’ble Apex Court therefore, in the case of Reema Aggarwal (Supra)
has made observations in reference to the validity of a marriage.
Keeping in mind the relevant Sections 7 and 8 of the Hindu Marriage
Act, 1955 that the marriage between the appellant – accused and
deceased Amariben was tribal marriage and she was enjoying status of
second wife. She was given even pregnancy leave by Government
Department and after delivering the child, she had resumed the
duties, where she was serving. The marriage performed by a tribal as
per rituals and customs cannot be treated Hindu Marriage defined and
explained in the codified of the Hindu Marriage Act, 1955. The
Hon’ble Supreme Court therefore, in the case of Reema Aggarwal
(Supra) as discussed, the claim under Section 494 of Indian Penal
Code in above referred para 9 of the judgment. If the second marriage
is automatically void, how could be any prosecution for bigamy. Here
in the present case, second marriage was performed by the appellant –
accused with the deceased Amariben, which can be equated with
“Gandharv Vivah” or love marriage and as per say of both of
them, the same was permissible in their Tribe. While putting criminal
law into action, wider meaning i.e. being given by the Court. While
dealing with the application under Section 125 of the Code of
Criminal Procedure should be given otherwise entire purpose be
prevented victimization and mental and physical cruelty to woman,
perhaps may not be taken care of well and as per the intention of the
legislature. So, conviction under Section 498 (A) is found
sustainable. Merely the deceased wife Amariben was a second wife
would not make prosecution or conviction unsustainable in the eye of
law.
24. The
defence witness examined does not carry the case of the appellant –
accused in any direction and it appears that this man was to see that
the accused are saved any how. His deposition is full of
contradiction and conflict with the opinion given by the handwritings
expert. His oral version is also to the contrary to the version given
by the Principal teacher, who was knowing the handwritings of the
deceased Amariben since last five years. The petitioner witness has
denied that the handwritings in daily book that are of the deceased
Amariben, though he has admitted that he himself has written his
daily book, as a teacher of the school which is required to be
maintained as per direction given by the Department. He has described
as to in what manner, the “Lafra” can be resolved . It
appears that he has attempted to act as an all rounder for the
defence side. He has admitted during cross-examination that though he
is a teacher, was prosecuted for the offence punishable under the
Bombay Prohibition Act, in the year. In cross-examination he has
stated that the case against me was dismissed by the Court, but
thereafter, he has admitted that that on the date of deposition, the
case against him was pending in the Court of J.M.F.C., Bhiloda. He
has even shown ignorance about the seizure of the documents from the
school including daily book, leave report given by the deceased
Amariben etc. The Court is of the view that the learned trial Judge
ought to have ordered prosecution against this witness for deliberate
lie to provide cover to the persons accused. The total denial of this
witness regarding handwritings of the deceased Amariben, on the
contrary, he has added some force as to the case of the prosecution
about genuineness of the handwritings of the deceased Amariben
otherwise he could have stated that in undisputed document like daily
book, there are handwritings of the deceased Amariben, but he has not
stated anything about handwritings in Exhibit 10, letter written by
the deceased Amariben. So the argument advanced by Mr. Anandjiwala is
not accepted.
25. It
is difficult for this Court to say that the accused cannot convict
for the charges of offence punishable under Section 498 (A), raising
a technical plea, that was taken before the trial Court. The same
plea has been placed again agitated before this court in reference to
the social status. But in view of the aforesaid discussion, this plea
of defence is not found acceptable. For short, there is no merits in
appeal so far as conviction recorded by the learned trial Court for
the offence punishable under Section 498 (A).
26. It
is submitted by Mr. Anandjiwala that the appellant – accused being a
Govt. servant and under conviction, the appellant – accused would
lose of benefits including the job, that would be the biggest
punishment to the accused. It would be practically a civil death. He
shall have to undertake all responsibility to maintain the children
of his first wife and the daughter of the deceased Amariben. This
submission was also made during the trail and even on the date of
judgment. The learned trial Judge has imposed substantive sentence of
one year for the offence punishable under Section 498 (A), the
learned trial Judge could have imposed three years R.I. The accused
is enjoying bail since the year 1994 and the incident in question is
of the year 1992, so lapse of about 15 years, if the person is asked
to go to the prison for a period of about one year in prison would be
a longer period, so some reduction may be given in the substantive
sentence imposed.
27. Having
considered the totality of the facts and circumstances that have been
emerged in the present case, including financial exploitation, made
of deceased Amariben, if she had decided to stay with appellant –
accused as wife, according to me the punishment of one year is less
than adequate punishment and the same should not be reduced further.
Leniency is already shown by the learned trial Court by imposing only
1/3rd of the period of punishment prescribed.
28. For
the reasons aforesaid, the present appeal is partly allowed. The
judgment and order of conviction and sentence passed by the learned
Additional Sessions Judge, Himatnagar in Sessions Case No.59 of 1992,
so far as the offence punishable under Section 306 of Indian Penal
Code, is hereby quashed and set aside. The judgment and order of
conviction and sentence qua the offence punishable under Section 498
(A) is humbly upheld. The sentence of fine shall remain unaltered so
far as offence punishable under Section 498 (A) is concerned and
those findings are upheld.
29. At
present as the appellant is on bail for the last about 13 years, he
is ordered to surrender himself before the concerned Jail Authority
on or before 26.10.2007, failing which the learned trial Judge shall
issue a non-bailable warrant for arrest to secure his presence, so
that he can be sent to prison to serve the sentence. Bail bond stands
cancelled.
(C.K.
BUCH, J.)
ynvyas
Top