JUDGMENT : HON’BLE MR. JUSTICE R. SAKTHIVEL, J. Prayer: Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, praying to call for the records in S.C.No. 100 of 2013 on the file of the learned Sessions Judge, Magalir Neethimandram (Mahila Court) at Coimbatore, allow the appeal, set-aside the judgment and order of conviction dated May 4th, 2016 and acquit the appellant. 1. This Criminal Appeal is preferred, assailing the judgment dated May 4th, 2016, passed by the 'learned Sessions Judge, Magalir Neethimandram (Mahila Court) Coimbatore' (henceforth 'Trial Court' for the sake of brevity) in Sessions Case No. 100 of 2013, by the 'appellant herein' (henceforth 'accused' as per Trial Court's description) in which he was convicted and sentenced to undergo three years of rigorous imprisonment with a fine of Rs.5,000/- (Rupees Five Thousand Only), in default thereof, to undergo three months of simple imprisonment for the offence under Section 498-A of 'The Indian Penal Code, 1860' [hereinafter 'IPC' for the sake of brevity]. 2. The case of the prosecution, in brief, is as follows: 2.1. The accused belongs to Islam religion and has two wives. First wife is Maria Bivi. He had two children through his first wife Maria Bivi. During the subsistence of the first marriage, the accused herein married Fathima Bivi as his second wife. Out of the marriage between the accused and Fathima Bivi, they had two children, one aged two years and another aged one year. 2.2. Ayisha Bivi (PW-1) is the mother of Fathima Bivi. Shahila Banu (PW-2) is the sister of Fathima Bivi. Meharunisha (PW-12) is the sister of PW-1. 2.3. The case of the prosecution is that the accused neglected his second wife and her children and used to assault, torture and inflict cruelty on his second wife frequently. On April 18th, 2011, the accused scolded his second wife Fathima Bivi and assaulted her with his hands and thereafter, he abetted her to commit suicide. Hence, Fathima Bivi set herself and her two toddlers ablaze with kerosene. Due to the said incident, she suffered 90% burn injuries and her two toddlers suffered 10% burn injuries. Upon learning the said incident, the accused took Fathima Bivi and his two toddlers to Mettupalayam Government Hospital and then shifted them to Coimbatore Government Hospital at 08.30 a.m. At 08.45 a.m., Fathima Bivi passed away despite medical treatment. Due to the said incident, she suffered 90% burn injuries and her two toddlers suffered 10% burn injuries. Upon learning the said incident, the accused took Fathima Bivi and his two toddlers to Mettupalayam Government Hospital and then shifted them to Coimbatore Government Hospital at 08.30 a.m. At 08.45 a.m., Fathima Bivi passed away despite medical treatment. Ayisha Bivi (PW-1) is the mother of the deceased filed a complaint against the accused at 05.30 p.m., on the aforementioned date. 2.4. The Police initially registered a case under Section 174 of 'The Code of Criminal Procedure, 1973', [henceforth "Cr.P.C." for the sake of brevity] and conducted investigation. 2.5. The Revenue Divisional Officer, Coimbatore District conducted inquest on the dead body of Fathima Bivi on April 19th, 2011 in the presence of Panchayatdars at Government Hospital, Coimbatore and submitted Ex-P.8 Report. 2.6. The Investigating Officer, during his investigation, found that the deceased committed suicide due to the cruelty inflicted and abetment caused by the accused. Hence, he altered the section of law from Section 174 of Cr.P.C., to 498-A and 306 of IPC and sent the alteration report to the Judicial Magistrate concerned. Thereafter, he examined the Doctor who conducted post-mortem on the body of the deceased. After completing investigation, he filed a final report against the accused under Sections 498-A and 306 of IPC before the learned Judicial Magistrate, Mettupalayam. 2.7. The learned Judicial Magistrate, Mettupalayam, registered a case in PRC No. 49 of 2012. After following the procedure under Section 207 of Cr.P.C., the learned Judicial Magistrate, observing that the offence under Section 306 of IPC is exclusively triable by the Sessions Court, committed the case to the Principal District and Sessions Judge, Coimbatore, under Section 209 of Cr.P.C. 2.8. The learned Principal District and Sessions Judge, Coimbatore, assigned Sessions Case No. 100 of 2013 and made over the same to the Trial Court. 2.9. On appearance of the accused and after hearing both sides under Section 226 of Cr.P.C., the Trial Court found that there are sufficient materials available on record to presume that the accused committed the offence. Hence, the Trial Court framed charges under Sections 498-A and 306 of IPC and read over the charges to the accused in Tamil and questioned him. The accused denied the charges and pleaded not guilty. Hence, trial was ordered. 2.10. Hence, the Trial Court framed charges under Sections 498-A and 306 of IPC and read over the charges to the accused in Tamil and questioned him. The accused denied the charges and pleaded not guilty. Hence, trial was ordered. 2.10. In order to prove the case, the prosecution has examined 13 witnesses as PW-1 to PW-13 and marked Ex-P.1 to Ex-P.13 and M.O.1. The accused side neither examined any witness nor marked any documents. 2.11. After completion of the prosecution evidence, the incriminating evidence available on record were brought to the notice of the accused by way of questions under Section 313(1)(b) of Cr.P.C., and the accused denied the same as false. 2.12. After hearing the arguments of both sides, the Trial Court, came to the conclusion that the charge framed against the accused under Section 306 of IPC was not made out and accordingly, acquitted the accused under Section 306 of IPC. 2.13. Further, the Trial Court found the accused guilty of the charge under Section 498-A of IPC and accordingly, imposed the punishment as stated supra in paragraph no. 1. 2.14. Feeling aggrieved with the conviction recorded and sentence imposed, the accused has preferred this Criminal Appeal under Section 374(2) of Cr.P.C. 3. It appears that neither the prosecution nor the victim side has filed any appeal against the acquittal order passed with respect to Section 306 of IPC. Needless to mention that, therefore, the decision of the Trial Court with respect to the aforementioned acquittal order has attained finality and there is no need to delve into the same in this appeal. Arguments 4. Needless to mention that, therefore, the decision of the Trial Court with respect to the aforementioned acquittal order has attained finality and there is no need to delve into the same in this appeal. Arguments 4. The learned counsel for the accused would argue that the deceased was conscious at the time of admission in the Hospital, but the prosecution did not take any steps to record the statement of the deceased; that PW-1, PW-2 and PW-12 are mother, sister and aunt of the deceased respectively; that they are related witnesses and hence, their evidence are not trustworthy; that the Revenue Divisional Officer's report is a mere opinion and it cannot be considered as substantive evidence; that the accused did not commit any act of cruelty against the deceased; that the evidence available on record does not attract the offence under Section 498-A of IPC; that the Trial Court without properly appreciating the evidence came to the conclusion that the accused committed the offence under Section 498-A of IPC and that said conviction recorded and sentence imposed is therefore liable to be interfered by this Court. In support of his submission, he relied on a judgment of the Hon'ble Supreme Court in Manju Ram Kalita vs. State of Assam, 2009 (13) SCC 330 . 5. In response to the above arguments, learned Additional Public Prosecutor has submitted that though PW-1, PW-2 and PW-12 are close relatives of the deceased, their evidence is natural and believable and therefore, they cannot be thrown out; that the accused himself has stated before the Revenue Divisional Officer that he assaulted the deceased; that the Trial Court after appreciating the evidence and materials came to the conclusion that the prosecution has proved the offence under Section 498-A of IPC; and that, therefore, there is no warrant to interfere with the judgment. Accordingly, he prayed to sustain the Trial Court's judgment and dismiss the appeal. 6. This Court has heard the submissions made on either side and perused the materials available on record. Point for consideration 7. The point that arise for consideration is whether the offence under Section 498-A of IPC is proved by the prosecution beyond reasonable doubt? Discussion and Decision 8. 6. This Court has heard the submissions made on either side and perused the materials available on record. Point for consideration 7. The point that arise for consideration is whether the offence under Section 498-A of IPC is proved by the prosecution beyond reasonable doubt? Discussion and Decision 8. In this case, the accused married the deceased Fathima Bivi as his second wife in the Jamath on June 11th, 2008 and out of their wedlock, they have two toddlers, one aged 2 years and another aged 1 year. Further, the prosecution has proved that on April 18th, 2011 at 05.30 a.m., the deceased Fathima Bivi poured kerosene and set herself ablaze inflicting burn injuries which resulted in her death and thereby, she committed suicide within seven years from the date of her marriage. The said fact has been proved by the prosecution by examining the Doctor PW-3 who marked post-mortem report (Ex-P.2). As per the evidence of PW-3 and Ex-P.2 establishes the fact that the deceased died due to burn injuries. 9. PW-1 who is none other than the mother of the deceased has deposed in her evidence that the accused and the deceased Fathima Bivi were in love with each other; that the accused married the deceased as his second wife with the consent of the elders; that since the inception of their marriage, the accused has neglected the deceased and her needs; that he even failed to provide for the livelihood of the deceased and her toddlers; that he used to assault and torture the deceased; and that the deceased informed PW-1 about the accused's ill treatment frequently. She further deposed that the events took a tragic turn on April 18th, 2011 when news arrived that Fathima Bivi has sustained severe burn injuries; that PW-1 and others rushed to the hospital; that the deceased passed away thereafter; and that, hence, PW-1 lodged complaint (Ex-P.1). 9.1. PW-1 in her cross examination has deposed that she has not filed any complaint before the incident against the alleged cruelty committed by the accused. The accused side put a suggestion to P.W1 that, as usual like in every ordinary family, there was an ordinary quarrel between the appellant and the deceased, which she denied. 10. 9.1. PW-1 in her cross examination has deposed that she has not filed any complaint before the incident against the alleged cruelty committed by the accused. The accused side put a suggestion to P.W1 that, as usual like in every ordinary family, there was an ordinary quarrel between the appellant and the deceased, which she denied. 10. PW-2, who is the sister of the deceased, has deposed that the accused caused cruelty to her sister; that the accused used to ruthlessly assault the deceased and cause injury to her; that though she insisted, the deceased refused to file complaint against the accused as she was reluctant to approach the police and file a complaint against the accused qua her husband; and that the accused neglected and failed to maintain the deceased and her toddlers. It is pertinent to note that PW-2 has not stated in her Section 161(3) statement that she insisted the deceased to file police complaint. PW-2 has not stated the above mentioned facts before the Investigation Officer. Investigation Officer has also deposed that PW-2 did not state the above said facts before him. Therefore, this Court is of the opinion that PW-2 has improved the version while examining her before the Court. 11. PW-12 is the sister of PW-1. PW-1 is the mother of the deceased. She has deposed that the accused assaulted the deceased frequently; that on one occasion, the accused even went to the extent of pouring kerosene over the deceased; and that on April 18th, 2011 when she was in the market, she learnt that the deceased set herself ablaze and passed away in the hospital. It is pertinent to note that, PW-12 while giving statement before the Investigating Officer, has not stated that, earlier in one occasion, the accused tried to pour kerosene over the deceased and set her ablaze. Therefore, this Court is of the opinion that PW-12 has also improved her version while examining her before the Court. 12. Considering the fact that PW-1, PW-2 and PW-12 are related witnesses; that they have not witnessed the incident directly; and also the subsequent improvements in the versions of PW-2 and PW-12, this Court is of the opinion that evidence of PW-1, PW-2 and PW-12 requires great scrutiny and corroboration. 13. 12. Considering the fact that PW-1, PW-2 and PW-12 are related witnesses; that they have not witnessed the incident directly; and also the subsequent improvements in the versions of PW-2 and PW-12, this Court is of the opinion that evidence of PW-1, PW-2 and PW-12 requires great scrutiny and corroboration. 13. In this case, the prosecution examined Sirajudeen (PW-4) who is the owner of the deceased's house where the deceased set herself on fire. He has not supported the prosecution's case. 14. Rafia (PW-6) who is a neighbour of the deceased has also not supported the prosecution's case. 15. Dr.Prasanna Kumar (PW-7) who examined the deceased and her toddlers on April 18th, 2011 has deposed that when he was on duty at the Emergency Ward of Coimbatore Medical College Hospital, at about 08.10 a.m., two toddlers were brought to him for treatment by the accused; that the children were conscious; and that he issued Accident Register (Ex-P.6 and Ex-P.7) in this regard and opined that they had 10% burn injuries. Further he deposed that on the same day at about 07.50 a.m., the accused brought his wife Fathima Bivi to him for treatment; that at that point of time, the deceased Fathima Bivi was conscious; and that he found 90% burn injuries on her body. 16. Notably, the Doctor in his evidence has deposed that the deceased did not state as to who set her on fire and also did not disclose the reason behind her burn injuries. The Doctor has specifically stated that he issued Accident Registers for all the three injured persons However, the Accident Registers pertaining to the two toddlers alone have been marked as Ex-P.6 and Ex-P.7. The Accident Register pertaining to the deceased Fathima Bivi has not been marked and the prosecution has not assigned any reason for not marking the Accident Register of the deceased Fathima Bivi. This adds to the doubt in the case of the prosecution. 17. As already stated, the evidence of PW-1, PW-2 and PW-12 requires corroboration for the reasons alluded to supra. However, neighbours of the deceased (PW-4 and PW-6) have not supported the case of the prosecution. The Investigating Officer has neither examined the first wife of the accused nor the neighbours of the first wife of the accused. Thus, there is no evidence on record to corroborate their evidence. However, neighbours of the deceased (PW-4 and PW-6) have not supported the case of the prosecution. The Investigating Officer has neither examined the first wife of the accused nor the neighbours of the first wife of the accused. Thus, there is no evidence on record to corroborate their evidence. Therefore, their evidence does not inspire confidence of this Court. 18. Mr.Mohamed Meeran, Revenue Divisional Officer (PW-9) has conducted inquest over the deceased body, on April 19th, 2011 in the presence of the deceased relatives and Panchayatdhars at Government Hospital, Coimbatore and filed a report (Ex-P.8). In the report, he stated that there was no dowry demand. After conducting inquest, he has examined PW-1, PW-2 and PW-12, accused and Panchayatdhars. The statement of the accused and other witnesses forms a part of the report (Ex-P.8). Statement of the accused before PW-9 as per Ex-P.8 is as follows: 19. The Trial Court disbelieved the evidence of PW-1, PW-2 and PW-12 and accordingly, acquitted the accused under Section 306 of IPC. But the Trial Court believed the above statement given by the accused before the Revenue Divisional Officer (PW-9) and hence, convicted him for the offence under Section 498-A of IPC. 20. It is settled law that the purpose of conducting inquest is to note the apparent cause of death of the deceased. The inquest report submitted by the Revenue Divisional Officer is like a statement under Section 161 of Cr.P.C. It can be used as previous statement like Section 161(3) of Cr.P.C. But the statement of the accused annexed in the report cannot be elevated to the status of confession since the Revenue Divisional Officer is not a Judicial Magistrate as required under Section 164 of Cr.P.C. At the same time, the Revenue Divisional Officer is not a Police Officer, hence the bar under Section 162 of Cr.P.C., would not apply. Hence, the statement given by the accused to the Revenue Divisional Officer is admissible as evidence subject to Section 24 of the Indian Evidence Act, 1872. The said view has been fortified by this Court in Arulvel vs. State Rep. Hence, the statement given by the accused to the Revenue Divisional Officer is admissible as evidence subject to Section 24 of the Indian Evidence Act, 1872. The said view has been fortified by this Court in Arulvel vs. State Rep. The Deputy Superintendent of Police, 2017 SCC Online Mad 15583 and the relevant paragraphs in the said judgment read as follows: “14...The statement made by a witness during investigation to the Investigating Officer falling under Section 161 Cr.P.C. cannot be used for any purpose except for the purposes mentioned in Section 162 Cr.P.C. itself. But a statement made to the Revenue Divisional Officer would not fall within the sweep of Section 161 Cr.P.C. because the Revenue Divisional Officer/Executive Magistrate is not a police officer. Under Sub- Section (2) of Section 176 Cr.P.C., the Executive Magistrate holding an enquiry shall record the evidence taken by him in connection therewith in any manner prescribed in the Code according to the circumstances of the case. The Executive Magistrate is, thus, competent to administer oath to the witnesses and record their statements, if he chooses to do so. The evidence of a witness so recorded by the Executive Magistrate under Section 176 Cr.P.C., at no stretch of imagination, shall fall 17 within the ambit of Section 162 Cr.P.C. and therefore it is undoubtedly admissible in evidence as a former statement. 15. Now turning to the evidentary value of such evidence recorded by the Executive Magistrate, it is not a substantive piece of evidence and the same could be used either to corroborate the evidence of the maker of the said statement as provided under Section 157 of the Evidence Act or to contradict him as provided under Section 145 of the Evidence Act. In this regard, we may usefully refer to the judgment of the Hon'ble Supreme Court in Ramprasad vs. State of Maharashtra, 1999 (5) SCC 10, wherein the Hon'ble Supreme Court has held as follows: “Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.” (Emphasis added) 16. In view of the above law settled down by the Hon'ble Supreme Court, the observations made by the learned Single Judge of this Court in the case of Gunasekaran (cited supra) is per incuriam as it is contrary to the law laid down by the Hon'ble Supreme Court and therefore, the same needs to be overruled. Accordingly and with regret, we overrule paragraphs 43 and 44 of the judgment of the learned Single Judge of this Court in the case of Gunasekaran (cited supra). 17. In the instant case, at the time when the statement (evidence) was made by the accused to the Revenue Divisional Officer/Executive Magistrate, he was not an accused and neither PW-10 has been empowered to record a confession as provided under Section 164 Cr.P.C. The Hon'ble Supreme Court in Sivakumar vs. State of Tamil Nadu in Appeal (Crl.) No. 242 of 2005 dated 08.12.2005 has held that: “With a view to exclude the admissibility of the confession made before a person, he must be a police officer.” 18. Therefore, the statement made by the accused to PW-10, in the instant case, is undoubtedly an extra judicial confession, which is admissible in evidence as neither the bar contained in Section 162 Cr.P.C. nor the one contained in Section 25 of the Evidence Act is applicable to the statement of PW-10.” Therefore, at best, the statement given by the accused to the Revenue Divisional Officer (PW-9) can be construed as an extra-judicial confession. 21. 21. For ready reference, Section 498-A of IPC is extracted hereunder: “498-A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section, "cruelty means": (a) any 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. (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.” 22. This case, owing to its factual matrix, concerns only Explanation (a) under Section 498-A of IPC and not explanation (b). Explanation (a) requires the act of the accused to be 'of that nature' as likely to lead to any of the three situations set out therein viz., (i) to drive the woman to commit suicide (ii) to cause grave injury (iii) danger to life, limb or health. 23. This Court carefully considered the aforementioned statement of the accused before PW-9 qua extra-judicial confession. It appears that the accused out of heat of disagreement resorted to mild physical force when the deceased attempted to assault his first wife. There is no evidence to show persistent or frequent cruelty. This Court deems fit to note here that not every harassment is cruelty. Whether the acts of the accused is 'of that nature' to drive a woman to commit suicide is essentially a question of fact. It has to be determined weighing the conduct of the accused, and gravity and nature of the acts of the accused. This Court deems fit to note here that not every harassment is cruelty. Whether the acts of the accused is 'of that nature' to drive a woman to commit suicide is essentially a question of fact. It has to be determined weighing the conduct of the accused, and gravity and nature of the acts of the accused. Merely employing mild physical force in one instance out of heat of disagreement, though definitely wrong and reprehensible, in the absence of any evidence of history of harassment, cannot be construed to be 'of that nature' to drive a woman to commit suicide under normal circumstances and therefore, the act of the accused does not constitute cruelty as contemplated under Section 498-A of IPC. 24. Further, it is pertinent to cite here the judgment of the Hon'ble Supreme Court in Girdhar Shankar Tawade vs. State of Maharashtra, 2002 SCC (CRI) 971 wherein it has been held that cogent evidence is necessary to bring home the charge under Section 498-A of IPC and in the absence of such evidence, the accused cannot be convicted under Section 498-A of IPC. Conclusion 25. As alluded to supra, the statement of the accused before PW-9 qua extra-judicial confession, relied on by the Trial Court for convicting the accused under Section 498-A of IPC does not establish cruelty. Therefore, the conviction recorded and punishment imposed under Section 498-A of IPC against the accused by the Trial Court is liable to be interfered with. 26. As already stated supra, the evidence of PW-1, PW-2 and PW-12 required corroboration. The evidence available on record do not corroborate the evidence of PW-1, PW-2 and PW-12. In the absence of such corroborative evidence, it is unsafe to convict the accused based on the uncorroborated testimonies of PW-1, PW-2 and PW-12. Therefore, this Court is inclined to interfere with the conviction and sentence imposed on the accused by the Trial Court. The point that arise for consideration in this appeal is answered accordingly in favour of the accused and against the prosecution. 27. Resultantly, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/accused on May 4th, 2016 for the offence under 498-A of IPC in Sessions Case No. 100 of 2013, by the learned Sessions Judge, Magalir Neethimandram (Mahila Court) Coimbatore is hereby set aside and the appellant/accused is acquitted from the charge levelled against him. 27. Resultantly, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/accused on May 4th, 2016 for the offence under 498-A of IPC in Sessions Case No. 100 of 2013, by the learned Sessions Judge, Magalir Neethimandram (Mahila Court) Coimbatore is hereby set aside and the appellant/accused is acquitted from the charge levelled against him. Bail bonds, if any, shall stand terminated. Fine amount, if any paid by the appellant, shall be refunded to him.