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2016 DIGILAW 511 (GUJ)

Ghulamhussain Khadukhan v. State of Gujarat

2016-03-02

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. Both of these appeals arise out of the same judgment and order dated 16.10.1996 passed by the District and Sessions Judge, Mehsana (hereinafter referred to as "the trial Court") in Sessions Case No. 72/1996, whereby the trial Court has convicted the appellant-accused Ghulamhussain Khadukhan for the offence under Section 498A of Indian Penal Code and acquitted him of the offence under Section 306 of IPC. The trial Court also acquitted the other accused from the charges levelled against them. The appeal being Criminal Appeal No. 996/1996 has been preferred by the appellant-accused Ghulamhussain Khadukhan, challenging his conviction and the sentence imposed by the trial Court. The appeal being Criminal Appeal No. 1141 of 1996 has been preferred by the State against the acquittal of the accused. 2. The case of the prosecution before the trial Court was that when the complainant Makubulkhan Hayatkhan, the father of the deceased Almabibi was sitting at the Choran of his Village on 17th September, 1995 at about 5.30 p.m. he was informed by his son Ghulam Mohammed that Almabibi had committed suicide by hanging herself. When he reached home, he found that his daughter Almabibi had hanged herself on the ceiling fan with the help of her dupatta. He brought her down by cutting the dupatta and she was taken to the Visnagar Hospital, where she was declared dead. The complaint was lodged by him on 18th September, 1995 at about 10 a.m. at Visnagar Police Station against the five accused i.e. Belim Gulamhussain Kadukhan, the husband, Belim Amirbibi Kadukhan, the mother-in-law, Belim Rakhalbibi Kadukhan, the sister-in-law, Belim Jiyakiddin Kadukhan, the elder brother-in-law, and Belim Nasiruddin Kadukhan, another elder brother-in-law of the deceased Almabibi. The Investigating Officer, after carrying out the investigation, filed the charge-sheet against all the five accused, in the Court of Judicial Magistrate First Class, Visnagar, Mehsana District, who committed the case for trial before the trial Court. The trial Court, after appreciating the evidence on record, convicted the accused-appellant Ghulamhussain Khadukhan for the offence under Section 498A of IPC and acquitted him of the offence under Section 306 read with Section 114 of IPC. The trial Court also acquitted the other accused from the charges levelled against them. 3. It has been sought to be submitted by the learned Senior Counsel, Mr. The trial Court also acquitted the other accused from the charges levelled against them. 3. It has been sought to be submitted by the learned Senior Counsel, Mr. A.D. Shah for the appellant in Criminal Appeal No. 996 of 1996 that the deceased Almabibi had committed suicide at her parental home, where she was staying since four days prior to the date of incident and that there was no evidence adduced by the prosecution to prove that she had committed suicide at the instigation or with the aid of any of the accused. Taking the Court through the oral evidence of the witnesses examined by the prosecution, he submitted that the father and the mother of the deceased had made only general allegations against the accused as regards the harassment, and that the evidence of Asifabibi, daughter of the deceased being tutored one, could not be relied upon. He further submitted that apart from the fact that the two chits (Exh. 28 and 29) allegedly recovered by the father of the deceased from the purse of the deceased were not sent to the handwriting expert for his opinion by the Investigating Officer, the said chits also were not sought to be shown to the appellant-accused by the trial Court while recording his statement under Section 313 of Cr. P.C. Mr. Shah also pointed out the contradictions appearing in the evidence of the prosecution witnesses and submitted that the evidence of none of the witnesses was reliable and trustworthy. Mr. Shah has relied upon various decisions of the Supreme Court of India to submit that the prosecution had failed to prove the ingredients of the offence under Section 498A and Section 306 of IPC and, therefore, the appeal of the appellant-accused against conviction was required to be allowed and the appeal of the State against the other accused was required to be dismissed. 4. The learned APP, Ms. Bhatt, however, submitted that the parents of the deceased had specifically stated in their respective evidence as to how harassment was caused by the appellant-accused to the deceased for the illegal demand of money. She further submitted that the PW-4, Asifabibi, who happened to be the daughter of the deceased, was hardly six years of age and she had also categorically stated that her father was beating her mother for money. She further submitted that the PW-4, Asifabibi, who happened to be the daughter of the deceased, was hardly six years of age and she had also categorically stated that her father was beating her mother for money. According to her, there is no reason to disbelieve the version of the child witness, which was found to be trustworthy by the trial Court. She has relied upon the decision of the Supreme Court of India in the case of Balaji vs. State, (2010) 12 SCC 545 to submit that the statement of the child witness, which stood the test of cross-examination, should be believed. She also relied upon the two chits (Exh. 28 and 29) to submit that the appellant-accused used to demand money and harass the deceased, which had driven the deceased to commit suicide. She had fairly submitted that there was hardly any evidence of harassment or cruelty so far as the other accused were concerned. 5. In the instant case, the prosecution, to prove the charges leveled against the accused, had examined as many as nine witnesses, out of them, the PW-1 was Dr. Devandvan Nathuvan, who had carried out the postmortem of the deceased. The PW-2 Makbulkhan Hayatkhan was the father, the PW-3 Gulsanbibi Makbulkhan was the mother, the PW-4 Asifabibi Gulamhussain was the daughter of the deceased, and the PW-5 Jahangirkhan Jivankhan was the acquaintance of the deceased. So far as the police witnesses are concerned, the PW-6 Khumansinh Chamansinh Parmar was the PSO of Visnagar Police Station, who was informed by the Medical Officer, Visnagar about the accidental death of the deceased on 17.9.1995. The PW-7 Arjunsinh was the Head Constable, before whom the complainant had lodged the complaint on 18.9.1995. The PW-8 Virendrasinh Sujaji Dabhi was the PSO, Visnagar Police Station, who had carried out the Inquest Panchnama in presence of the Executive Magistrate and panch witnesses. Lastly, the PW-9 Nizamudin Baudinbhai was the PSI, Visnagar Police Station, who had carried out the investigation by recording the statements of the witnesses, arresting the accused and submitting the charge-sheet in the Court. 6. Lastly, the PW-9 Nizamudin Baudinbhai was the PSI, Visnagar Police Station, who had carried out the investigation by recording the statements of the witnesses, arresting the accused and submitting the charge-sheet in the Court. 6. From the evidence of the said witnesses, it was duly established by the prosecution that the deceased Almabibi had committed suicide by hanging herself on the fan at her parental house at Village Savala, Taluka Visnagar on 17th September, 1995 at about 5 p.m. It was also established that the incident had taken place approximately 8 to 9 years after her marriage. Now, it was alleged by the father of the deceased in his evidence before the Court that after three years of her marriage, the accused, who were the husband, the mother-in-law and the elder brothers-in-law had started demanding dowry, and that therefore he had, twice or thrice, given money to her in-laws. He had further stated that at the time of the marriage of his son also, her in-laws had demanded Rs. 10,000/-, which he had given, however, thereafter also t he accused were harassing his daughter and, therefore, she had come down to his place four days prior to the incident. In the cross-examination, he had admitted that he was the Sarpanch for 11 years and he knew that he should have informed the police about the incident immediately, and that he had not lodged the complaint immediately before the police. As regards the two chits (Exh. 28 and 29), he had stated that he was not aware about the said chits till the said chits were found from the purse of the deceased after her death. According to him, his complaint was not being taken at the police station on the date of the incident and, therefore, he had lodged the same on the next date. He was confronted with the allegations made in the complaint, however, he had denied that he had falsely implicated the in-laws of the deceased, just to save himself. The PW-3 Gulsanbibi the mother of the deceased had also stated, inter alia, that the accused were demanding money from her daughter and were harassing her mentally and physically. According to her, she had given Rs. 1,000/- at one time and Rs. 500/- at another time to the in-laws of her daughter, without the knowledge of her husband, and her in-laws had also demanded Rs. According to her, she had given Rs. 1,000/- at one time and Rs. 500/- at another time to the in-laws of her daughter, without the knowledge of her husband, and her in-laws had also demanded Rs. 10,000/- when the marriage of her son was to take place. The PW-4 was the daughter of the deceased, who was aged about 7 years at the time of recording of the evidence before the trial Court. She had stated, inter alia, that her father had demanded Rs. 10,000/- from her maternal grandparents at the time of the marriage of her maternal uncle, which her maternal grandfather had given to her father. She had also stated that she had seen her father beating her mother. In the cross-examination, she had denied that she was tutored by her maternal uncle. The PW-5 Jahangirkhan Jivankhan, who happened to be the acquaintance of the deceased had stated that his mother was staying in the street where the accused were staying, and that whenever he used to go to his mother's place, he was hearing about the disputes taking place between the deceased and her husband. He had also stated that the accused Gulamhussain Kadukhan was harassing his wife and, therefore, she had hanged herself. 7. From the said evidence of the witnesses and the chits (Exh. 28 and 29) produced by the prosecution, it emerges that the appellant-accused, who was the husband of the deceased was having financial constraints and was demanding money from the deceased time and again. Though the admissibility of the said chits is seriously challenged by the learned Counsel for the appellant, on the ground of having not been proved by the prosecution, even if the same were read in evidence, then also it appears that accused had requested his wife to give some money to save his image. Such request could not be said by any stretch of imagination to be demand of dowry or illegal demand of money as alleged by the prosecution. Of course, the parents and the daughter of the deceased had stated that the accused was making demand of money time and again and was subjecting her to cruelty, except the general allegations, they had not specified any incident in this regard. The only incident stated by the parents of the deceased was that the accused had demanded Rs. Of course, the parents and the daughter of the deceased had stated that the accused was making demand of money time and again and was subjecting her to cruelty, except the general allegations, they had not specified any incident in this regard. The only incident stated by the parents of the deceased was that the accused had demanded Rs. 10,000/- at the time of the marriage of their son and that though the said money was given by them, he had continued to harass her and, therefore, their daughter had come down to their house 4-5 days prior to the incident in question. However, the question is whether from such scanty evidence of these witnesses could it be said that the accused was subjecting the deceased to harassment, which could be termed to be "cruelty" within the explanation contained in Section 498A of IPC. The Apex Court, in the case of Girdhar Shankar Tawade vs. State of Maharashtra, (2002) 5 SCC 177 had examined the scope of the explanation to Section 498A of IPC and observed as under:- "3. 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 embrace the attributes of 'cruelty' in terms of Section 498-A." 8. So far as the facts of the present case are concerned, as stated herein above, the incident had taken place at the parental house of the deceased and, that too, 8 to 9 years after her marriage. So far as the facts of the present case are concerned, as stated herein above, the incident had taken place at the parental house of the deceased and, that too, 8 to 9 years after her marriage. There was no evidence adduced by the prosecution to show that there was any willful conduct on the part of the appellant-accused prior to the incident in question, which had driven the deceased to commit suicide. There was also no evidence to show that the accused had caused grave injury or danger to the life or limb of the deceased. Admittedly, the deceased was staying at her parental house since last four days prior to the date of the incident and, therefore, the present case would not fall under the Explanation (a) to Section 498A of IPC. Of course, harassment need not be in the form of physical assault, and even mental harassment also could come within the purview of Section 498A of IPC. However, except the bare, general allegations made by the parents of the deceased, that too, without mentioning specific details about the harassment, there is nothing on record to suggest that the deceased was being harassed mentally by the appellant-accused. As regards the Explanation (b) also, the prosecution had failed to prove any coercive harassment being meted out by the accused to the deceased on account of non-satisfaction of the illegal demand by the deceased or her parents, as contemplated in the said Clause (b) of the Explanation to Section 498A. 9. For the frequent demand of money, the prosecution had tried to rely upon the two chits (Exh. 28 and 29), which were allegedly recovered by the father of the deceased from the purse of the deceased after her death. However, apart from the fact that the said chits were un-dated and not sent for the opinion of hand-writing expert by the Investigating Officer to prove that the said chits were written by the appellant-accused, nothing material turns out from the said chits also, except that he had requested his wife to give a small amount of Rs. 600/- to save his image. As rightly pointed out by the learned Senior Counsel, Mr. A.D. Shah for the appellant, the said chits, were not shown to the appellant- accused during the course of recording of his statement under Section 313 of Cr. 600/- to save his image. As rightly pointed out by the learned Senior Counsel, Mr. A.D. Shah for the appellant, the said chits, were not shown to the appellant- accused during the course of recording of his statement under Section 313 of Cr. P.C. though sought to be relied upon by the trial Court for the purpose of convicting the accused. It cannot be gain-said that the recording of further statement of the accused under Section 313 of Cr. P.C. is not an empty formality and the trial Court was required to put before the accused all the material as found incriminating, before relying upon the same for the purpose of convicting him. The trial Court, having failed to do so, the said chits could not be relied upon by the prosecution. If the said evidence is discarded, except the general allegations made by the parents of the deceased, there is nothing on record to suggest that the accused was making illegal demand of money from the deceased or her parents, so as to constitute cruelty within the meaning of Section 498A of IPC. 10. It is also a settled legal position that there is substantial difference between the two provisions contained in Section 498A and Section 306 of IPC. Under Section 498A, the cruelty committed by the husband or his relative drags the woman to commit suicide, while under Section 306 of IPC, the suicide is abetted or intended. It is true that on the same evidence of cruelty, the accused could be convicted for the abetment of suicide under Section 306 of IPC, as contended by the learned APP Ms. Bhatt. However, in the instant case, there is not an iota of evidence to even remotely suggest that any of the accused, much less the appellant-accused, who was the husband of the deceased, had abetted or intended or aided the deceased to commit suicide, so as to hold him or other accused guilty under Section 306 of IPC. 11. In that view of the matter, the Court is of the opinion that the trial Court had mis-appreciated the evidence on record, so far as the conviction of the appellant-accused under Section 498A of IPC was concerned. The prosecution, having failed to prove the said charge against the appellant-accused by leading cogent and credible evidence, the said appellant-accused is required to be acquitted by giving him benefit of doubt. The prosecution, having failed to prove the said charge against the appellant-accused by leading cogent and credible evidence, the said appellant-accused is required to be acquitted by giving him benefit of doubt. There being no evidence adduced by the prosecution qua the other charge under Section 306 of IPC, the trial Court had rightly acquitted all the accused from the said charge, and hence the appeal filed by the State deserves to be dismissed. 12. For the reasons stated above, the judgment and order of conviction and sentence dated 16.10.1996 passed by the District and Sessions Judge, Mehsana in Sessions Case No. 72/1996 qua the appellant-accused, Ghulamhussain Khadukhan of Criminal Appeal No. 996 of 1996 is set aside and he is acquitted from the charges leveled against him for the offence under Section 498A of IPC by giving him benefit of doubt. 13. The Criminal Appeal No. 996 of 1996 stands allowed accordingly. His bail bonds stand cancelled. 14. The Appeal being Criminal Appeal No. 1141 of 1996 filed by the State is dismissed. R & P be sent back to the concerned trial Court.