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Letter of deceased which can not be treated as Dying Declaration, can not be considered as admissible evidence in the absence of corroboration = the High Court found the appellant to be guilty of the offence under Section 498A, IPC, because of some conduct or acts of the 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 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 appellant in the letter and in any case these acts or conduct of the appellant did not amount to cruelty within the meaning of clauses (a) or (b) of the Explanation under Section 498A, IPC. 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 in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. 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-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.” =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. 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.

reported http://judis.nic.in/supremecourt/imgst.aspx?filename=40593

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1567 of 2007

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 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 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 appellant and
Amriben fell in love and got married in 1990. 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 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 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 complaint to the
Police Station. That evening, the appellant 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 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 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 the Indian Penal Code (for short ‘the IPC’) in view of the
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 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 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
appeal before the High Court, and by the impugned 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 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 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 appellant in the letter and in any case these
acts or conduct 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
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.

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 accused under Section 498A,
IPC, must be proved beyond all 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 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,
therefore, the appellant is entitled to be acquitted by this Court
of the charge under Section 498A, IPC.

8. Ms. Pinky Behera, learned counsel appearing for the respondent-
State, on the other hand, relied on Ext.10, which 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 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).

Findings of the Court:

9. Section 498A, IPC, under which the appellant’s conviction has been
maintained by the High Court is extracted hereinbelow:
“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
(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 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 (a) or clause (b). In this case, clause (b) is
not attracted as 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 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 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 appellant cannot
be held guilty of any wilful conduct which 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
“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 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 individuals. 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 PW-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 complain 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 PW-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 witness 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 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
498A. There is no error in evaluating the evidence so far as
cruelty is concerned.

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 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 pregnant by
spending the salary earned by the deceased on 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 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 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. As the cause of the death of the deceased is no
more in 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 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, 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, her husband, had subjected her to beating.
This Court found 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 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 in which the cause of death comes into question. By
no stretch of imagination can the statements of Damyanti contained in
Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be
connected with any circumstance of the transaction which resulted in
her death. Even that apart, when we are dealing with an offence under
Section 498-A IPC disjuncted from the offence under Section 306 IPC
the question of her death is not an issue for consideration and on
that premise also Section 32(1) of the Evidence Act will stand at bay
so far as these materials are concerned.
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-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.”

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 exploitation and starving and mental cruelty
by the 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.

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)

……………..………………………..J.
(Sudhansu Jyoti Mukhopadhaya)

New Delhi,
July 25, 2013.

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