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2019 DIGILAW 1051 (GUJ)

Ballubhai Naginbhai Patel v. State of Gujarat

2019-10-24

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant has assailed the judgment and order on sentence dated 19.12.2003 passed by the learned Additional Sessions Judge, Vyara in Sessions Case No. 128 of 1998 whereby, the appellant was convicted for offence under sections 498A and 306 of the Indian Penal Code. He was sentenced to suffer rigorous imprisonment for two years for offence under section 498A with fine stipulation and under section 306 of IPC he was sentenced to suffer rigorous imprisonment for five years with fine stipulation. 2. The facts in brief giving rise to the present appeal as could be culled out from the impugned judgment and connected material are that the marriage between the appellant-Ballubhai Naginbhai Patel and Savita, sister of Ramesh Nagin (PW-1) original complainant, was solemnized around 24 years before the incident. From this wedlock, the couple was blessed with two sons out of which, elder son named Satish unfortunately died around three years before the incident. Savita was harboring a suspicion that the appellant was coming late in the night as he was having relations with some lady. She used to disclose her suspicion to PW-1 and other witnesses, who happened to be her father, brother and sister-in-law (bhabhi). Savita could not bear the conduct of appellant coming late therefore, she committed suicide by hanging herself on 04.03.1998. Initially AD under section 174 of the Code was registered. However, thereafter on 06.03.1998, PW-1 lodged a formal complaint with Mahuva Police Station on the basis of which, an FIR being C.R. No. I-8 of 1998 for offence under section 498A and 306 of IPC was registered against the appellant. 3. Investigation ensued consequent upon registration of the FIR. Investigating Officer found prima facie evidence against the appellant. He therefore, filed charge-sheet in the Court of learned Judicial Magistrate, First Class, who, in turn, committed the case to the Court of Sessions as the offences against the appellant were exclusively triable by the Court of Sessions. 4. Charge vide Exh-6 came to be framed by the appellant who pleaded not guilty and claimed to be tried. Prosecution, in order to bring home the guilt of the appellant examined the following witnesses: 1. Dr. Chandrakant Chhaganbhai Patel Exh 8 2. Kantubhai Gopalbhai Patel Exh 11 3. Rameshbhai Naginbhai Patel Exh 16 4. Naginbhai Mavjibhai Patel Exh 18 5. Vishrambhai Naginbhai Patel Exh 19 6. Prosecution, in order to bring home the guilt of the appellant examined the following witnesses: 1. Dr. Chandrakant Chhaganbhai Patel Exh 8 2. Kantubhai Gopalbhai Patel Exh 11 3. Rameshbhai Naginbhai Patel Exh 16 4. Naginbhai Mavjibhai Patel Exh 18 5. Vishrambhai Naginbhai Patel Exh 19 6. Kalyanbhai Babarbhai Patel Exh 20 7. Kashiben Vishrambhai Todiya Exh 21 8. Ramjibhai Mithabhai Jhala Exh 24 5. Prosecution also produced and relied upon the following documentary evidence: 1. Complaint Exh 17 2. Inquest Panchnama Exh 13 3. Panchnama of the scene of offence Exh 12 4. P.M. Note Exh 10 6. Upon conclusion of the evidence, statement of the appellant under section 313 of the Code was recorded wherein he claimed that the false case was filed against him. He did not examine any witness in defence. The learned Trial Judge, thereafter heard the arguments of learned APP and learned advocate in defence by the impugned judgment and order on sentence convicted the appellant as aforesaid. 7. I have heard Mr. Panchal learned advocate for the appellant and Mr. K.L. Pandya, learned APP for the respondent-State. Perused the record of Sessions Case No. 128 of 1998. 8. Mr. Panchal learned advocate for the appellant vehemently submitted that it is very much clear from the evidence of PW-1 and other material witnesses that deceased was only harboring suspicion that the appellant was having relations with other unknown woman. According to his submission, the reason for suspicion was that appellant was coming late in the night. He further submitted that marriage span between the appellant and Savita was 24 years and out of this wedlock, they had two children. He relied upon the decision of the Supreme Court in case of Pinakin Mahipatray Rawal vs. State of Gujarat reported in (2013) 10 SCC 48 and submitted that the only issue involved in this appeal that extra marital relations would not per say fall within the definition of cruelty as contained in 498A of IPC is no longer res integra. He therefore urged that the appeal may be allowed and the appellant may be acquitted of the charges levelled against him. 9. Mr. K.L. Pandya, learned APP has supported the impugned judgment. He submitted that the appellant used to come late home that has given rise to the suspicion in the mind of the deceased. He therefore urged that the appeal may be allowed and the appellant may be acquitted of the charges levelled against him. 9. Mr. K.L. Pandya, learned APP has supported the impugned judgment. He submitted that the appellant used to come late home that has given rise to the suspicion in the mind of the deceased. He submitted that it is very clear from the evidence of material witnesses that because of the conduct of the appellant, the deceased was remaining under constant mental stress which ultimately led her to commit suicide despite the marriage span of 24 years. He vehemently submitted that the woman would ordinarily not end her life after such a long marriage span if there is no harassment to her. He submitted that the decision of the Supreme Court in case of Pinakin Mahipatray Rawal (supra) is not applicable to the facts of the case. He therefore urged that the appeal may be dismissed. 10. It is an admitted fact that there are no allegations of physical ill-treatment or cruelty to the deceased Savita by the appellant. The solitary question which is involved in this appeal is whether the suspicion of relationship or intimacy between the appellant and faceless woman would constitute cruelty as envisaged under section 498A of IPC and whether such cruelty is enough to infer a conduct of such a nature which would abate a woman to commit suicide. 11. The prosecution case based on the evidence of Rameshbhai Naginbhai, PW-1, original complainant, Naginbhai Mavjibhai Patel, PW-4, Vishrambhai Naginbhai Patel, PW-5, Kalyanbhai Babarbhai Patel, PW-6 and Kashiben Vishrambhai Dhodiya, PW-7, brother, father, brother, cousin brother and sister-in-law respectively of the deceased. 12. All the witnesses are unanimous in saying that marriage between the appellant and the deceased Savita had taken place around 24 years before the incident and, from this marriage, two sons were born out of which, elder son named Satish aged 18 years had expired around three years before the incident. These witnesses have also unanimously stated in their evidence that deceased Savita was carrying a suspicion that appellant was having intimacy/relations with a faceless woman. The reason for this suspicion was the conduct of the appellant of coming home late in the night. Undisputedly, the prosecution has not produced any evidence worth the name to indicate that in fact, appellant was having any intimacy or relations with any woman. 13. The reason for this suspicion was the conduct of the appellant of coming home late in the night. Undisputedly, the prosecution has not produced any evidence worth the name to indicate that in fact, appellant was having any intimacy or relations with any woman. 13. In this context, in the backdrop of the above evidence of the prosecution, useful reference can be made to the decision of Supreme Court in case of Pinakin Mahipartral Rawal (supra) wherein, while dealing with somewhat similar factual situation following observations are made: "23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide." 14. The evidence of the material witnesses indicate that the deceased Savita was remaining under constant mental stress on account of the appellant coming home late in the night on suspicion of his having intimate relations with a faceless woman. The mental stress that deceased Savita was facing on account of conduct of the appellant would no doubt amount to mantle cruelty. However, as held by the Supreme Court, intensity of such cruelty defer from person to person. Some may meet such stress or cruelty with courage and some may suffer silence and a weak person may felt unbearable and think of ending life. However, as held by the Supreme Court, intensity of such cruelty defer from person to person. Some may meet such stress or cruelty with courage and some may suffer silence and a weak person may felt unbearable and think of ending life. I am of the view that the conduct of the appellant coming home late in the night giving rise to the suspicion in the mind of the deceased Savita that the appellant was having intimate relations or intimacy with a woman that too faceless woman was not of such a nature as was enough to drive her to commit suicide. It is also worthwhile to note that the appellant would not have thought in his wildest dream that his conduct of coming home late in the night would give rise to suspicion in the mind of deceased Savita and by acting in such a manner he never intended that his wife Savita should commit suicide. I am therefore of the view that the Court below has committed an error in convicting the appellant for offence under sections 498A and 306 of IPC on the ground that the conduct of the appellant coming home late in the night on account of his intimacy of relations with faceless woman was a mental cruelty to the deceased Savita of a grave nature that she has no option but to end her life. The conviction of the appellant for offence under sections 498A and 306 of IPC cannot be sustained and deserves to be set aside. 15. Mr. Panchal, learned advocate for the appellant fairly stated at the bar that since the Court has set aside the conviction of the appellant, a fine which the appellant has deposited in the Court instead of refunding to the appellant may be transmitted to the District Legal aid committee. 16. For the foregoing reasons, the appeal succeeds and is hereby allowed. Judgment and order of conviction dated 19.12.2003 passed by the Additional Sessions Judge, Vyara in Sessions Case No. 128 of 1998 is hereby quashed and set aside. The appellant is acquitted of the charges leveled against him sections 498A and 306 of the Indian Penal Code. Fine, if any, deposited by the appellant be transmitted to the District Legal Aid Committee. Bail bonds furnished by the accused stand discharged. R & P to be transmitted back to the concerned Trial Court forthwith. The appellant is acquitted of the charges leveled against him sections 498A and 306 of the Indian Penal Code. Fine, if any, deposited by the appellant be transmitted to the District Legal Aid Committee. Bail bonds furnished by the accused stand discharged. R & P to be transmitted back to the concerned Trial Court forthwith. Criminal Appeal is disposed of.