Gujarat High Court
Kamabhai Jadhabhai Parmar vs The State Of Gujarat on 19 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1277 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder ?
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KAMABHAI JADHABHAI PARMAR & ORS.
Versus
THE STATE OF GUJARAT
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Appearance:
MR NIRAV C THAKKAR(2206) for the Appellant(s) No. 1,2,3
MR DHAWAN JAYSWAL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/06/2024
CAV JUDGMENT
1. By way of present appeal under Section 374 of the
Code of Criminal Procedure, 1973 (hereinafter
referred to as "CrPC" for short), the appellants
have challenged the judgment and order of
conviction and sentence dated 16.07.2004 passed by
the learned Additional Sessions Judge & Fast Track
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Court No.5, Jamnagar in Sessions Case No.137/2001,
whereby the appellants have been convicted for the
offences under Sections 498(A) and 114 of the
Indian Penal Code (hereinafter referred to as
"IPC" for short) and thereby sentenced them to
undergo three years rigorous imprisonment
imprisonment and fine of Rs.2,000/- each, in
default, to undergo two months simple imprisonment
for the offence under Section 498(A) of the IPC,
however, no separate sentence was imposed for the
offence under Section 114 of the IPC.
2. The brief facts leading to filing of the present
appeal are as under,
2.1 An FIR being C.R. No.I-49/2001 came to be
registered with Jodiya Station for the
offences under Sections 498(A), 306 and 114
of the IPC on 23.06.2001 alleging inter alia
that earlier the sister of the complainant
married at Village : Sarpadad sixteen years
ago and out of said wedlock, she was having
one daughter, who is residing with her first
husband, however after getting separated, she
married with the appellant no.3 and started
residing with the accused persons but as the
sister of the complainant could not conceive
a child, the accused persons used to taunt
her and also used to give her mental and
physical torture and when the deceased used
to visit her parental home, she complained
about the ill-treatment at the hands of the
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accused persons but to save her marriage
life, the deceased was sent back to
matrimonial house. It is alleged that because
of the constant mental and physical
harassment at the hands of the accused
persons, the deceased committed suicide by
setting herself ablaze.
2.2 On the basis of the registration of the FIR,
the investigation was carried out and on
conclusion of investigation, the chargesheet
came to be filed before the court of the
concerned learned Magistrate.
2.3. Since the case registered against the
appellants-accused was exclusively triable by
the Court of Sessions, the Learned Judicial
Magistrate after making inquiry about the
suppliance of copies of papers, free of cost
to the accused as provided under Section 208
of the Code of Criminal Procedure and upon
satisfaction that the accused have engaged
own Advocate for defence committed the case
to the Court of Session Judge, Jamnagar under
Section 209 of the Code of Criminal
Procedure, which came to be registered as
Session Case No.137 of 2001.
2.4 On committal, the case was transferred and
placed for trial before the Learned Sessions
Judge, Jamnagar, who had initially framed
charge against the accused vide Exh.4 for the
alleged offences. The charge was read over
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and explained to them. Plea of each accused
came to be recorded vide Exhs.5-8, wherein
they pleaded not guilty to the charge and
claimed to be tried.
2.5 Thereafter in order to bring home the charges
leveled against the appellant - accused, the
prosecution has examined 08 prosecution
witnesses and also produced 19 documentary
evidence, details of which are mentioned in
the impugned order.
2.6 After recording of the evidence of the
prosecution witnesses was over, the learned
Sessions Court explained to the accused the
circumstances appearing against them in the
evidence of the prosecution witnesses and
recorded their further statements under
Section 313 of the Criminal Procedure Code.
In their further statements, they denied the
case of the prosecution in entirety.
According to them, they have been roped in a
false case.
2.7 At the end of trial, the learned Sessions
Judge convicted the appellants - accused by
impugned judgment and order and imposed
sentence as stated in Paragraph No.1 of the
judgment.
3. Heard learned advocate, Mr. Nirav C. Thakkar for
the appellant and learned APP Mr. Dhanwan Jayswal
for the responded - State of Gujarat.
4. Learned advocate, Mr. Thakkar submitted that it is
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an admitted position of fact that it was a second
marriage of the appellant no.3 and the deceased
both and earlier both persons got married and,
thereafter, separated from their respective lives
and span of marriage life is more than 12 years
and during that period of 12 years, not a single
offence and/or complaint has been registered
against any of the accused persons by the members
of the complainant side regarding cruelty. Learned
advocate submitted that immediately after the
occurrence of the incident, the injured victim
(the deceased) was taken to hospital for the
purpose of preliminary treatment by her father-in-
law and on the strength of registration of MLC
case, accidental death case was registered as the
deceased died due to accidental death, which was
subsequently investigated by the concerned IO.
Learned advocate submitted that it is the case of
the prosecution that after the solemnization of
the marriage for longer duration of time, the
deceased could not conceive a child, therefore,
the appellants used to taunt her that she is
infertile but in fact, the said allegations
leveled against the appellants - accused could not
sustain for a moment simply on the ground that the
deceased had earlier got married with another
person and out of said wedlock, she was blessed
with two baby girls and out of them, one baby girl
was aged about 5 years at the time of occurrence
and another baby girl died immediately on the next
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day of her birth but in short, the deceased had
become mother of two girls through said marriage
life and secondly, it has come on record that the
deceased was third wife of the appellant no.3 and
in his earlier two marriage, the appellant no.3
could not become a father, therefore on the
strength of above stated material available on
record, it can safely be said that if at all the
fingers are to be raised, those would be raised
towards the husband and nobody can make
allegations against the deceased that she is
infertile as she had already become mother of two
girls before entering into present relationship,
therefore, those allegations could not be leveled
against the appellants that they were taunting the
deceased that the deceased was infertile. Learned
advocate submitted that at the time of recording
deposition of the complainant as well as other
witnesses, they have disclosed certain facts,
which were at all not stated and/or narrated by
them in the complaint as well as in the statements
recorded by the IO, more particularly, the
complainant as well as other witnesses have stated
that the appellant no.3 had inflicted blows upon
the face of the deceased and due to which, the
deceased has sustained serious and severe injuries
and ultimately, lost 4 teethes and as soon as the
said fact came to the notice of the complainant
and other witnesses, they have contacted the
appellant no.3 and apprised him not to behave in
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such a manner and in turn, the appellant no.3 had
given assurance that he will not repeat such
things again. Learned advocate submitted that all
the witnesses have consistently and categorically
stated that the appellant no.3 had inflicted blows
upon the deceased and due to which, 4 teethes had
broken but the said fact is not substantiated with
other material and also not corroborated with the
medical evidence. Learned advocate submitted that
the doctor, who had conducted postmortem, had not
mentioned the said fact in the postmortem. Learned
advocate submitted that the said incident has
occurred five years before the said incident and
at the relevant point of time, no FIR has been
registered against the appellants, therefore,
reliance cannot be placed upon the such kind of
allegations leveled without supporting any
documentary evidence. Learned advocate submitted
that there is quite contrary version in the
evidence of all the witnesses because the
complainant has stated that the said incident has
occurred five years before the date of incident,
whereas, another witness, who is brother of the
deceased and star witness, has stated that the
said incident has occurred two and half years
before the incident. Learned advocate submitted
that all the witnesses have stated at the relevant
point of time that the deceased had come to her
parental home and stayed for more than 8 months
and, thereafter, amicable settlement took place
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due to intervention and persuasion of family
members and relatives and since then, they were
residing together. Learned advocate submitted that
the said facts have at all not mentioned in the
complaint as well as in the statements of the
witnesses. Learned advocate submitted that during
cross-examination, learned advocate for the
defence had tried to bring said facts on record by
confronting and contradicting the witnesses as
well as complainant about the said exaggeration
(improvisation) in the story narrated by them at
the time of recording their deposition and they
have flatly refused the said suggestions put
forward by the defence, therefore, to filter the
evidence available on record, particular phrases
have been referred to the IO specifically asking
that certain facts disclosed by the complainant at
the time of recording the deposition, have not at
all be recorded in the complaint registered before
him and certain phrases mentioned in the
deposition in the witnesses have not been at all
in the statements recorded before him and the
Investigating Officer has after examining the
papers gave answer in affirmative manner. Learned
advocate, therefore, submitted that from the above
facts, it is clear that there are exaggeration
versions as well as improvement in narration of
fact at the time of recording depositions of the
witnesses and the said aspect has not been
properly considered by the learned Sessions Judge
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while passing impugned judgment and order of
conviction despite the fact that the defence has
successfully brought the said facts on record.
5. Learned advocate submitted that it is also an
admitted position of fact that to substantiate the
said additional and exaggerated version narrated
in the deposition, the complainant and other
witnesses have not produced any single piece of
material and/or evidence against the appellants,
therefore, the cumulative effect of evidence
available on record clearly goes on to show that
the prosecution has miserably failed to prove
charges leveled against the appellants - accused.
Learned advocate submitted that the story put
forward by the prosecution to connect the present
appellants - accused with the commission of crime
itself is baseless and not probable one because
the span of marriage life is more than 12 years
and during that period, as she could not conceive
a child, the appellants used to taunt her, itself
is not believable and palatable one and during
span of 12 years' of marriage life, not a single
complaint and/or application preferred before any
authority.
6. Learned advocate submitted that day before the
incident, the deceased and the appellant no.3 had
gone to the house of the complainant just to see
the health of the brother of the deceased,
Hirabhai and at the relevant point of time, in the
presence of all the family members, the deceased
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had made a statement that there was dispute going
on between the family as the appellant no.3 is
taunting her by specifically saying that she is
infertile and due to which, the dispute is going
on and the deceased had not eaten since last 5-6
days and now at the time of recording deposition
of the complainant as well as other witnesses,
they have disclosed the said fact whereas in the
cross-examination, they stated that the said
version has not been narrated by the deceased in
their presence and the deceased disclosed the said
fact before her mother and sister-in-law and
admittedly at the time of recording deposition,
the mother was not available, therefore, her
deposition could not be recorded, whereas the
sister-in-law was examined and she had not
disclosed the said fact and not only that, she had
not supported the case of the prosecution,
therefore, she has been declared hostile witness
and in short, the charge and accusation so far as
the deceased had not eaten food since last 5-6
days from the date of incident due to dispute
cropped up between the husband and wife and the
family members has no legs to stand for a moment
and it is also found out from the postmortem note
that nourished body with fecal matter in the
intestine was found out, therefore, the
allegations leveled against the appellants are
also not supported with medical evidence. Leaned
advocate further submitted that one of the
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brothers of the deceased was working in the police
department and prima facie, it seems that at the
instance of said brother, absolute false and
frivolous prosecution has been launched against
the appellants. Learned advocate submitted that
even the uncle of the deceased was also examined
by the prosecution but he has not supported the
case of the prosecution. Learned advocate
submitted that it is the settled proposition of
law that in criminal trial, the prosecution has to
prove case beyond reasonable shadow of doubt and
here in this case on hand, admittedly the
prosecution has put reliance upon the evidence of
witnesses, wherein they have put reliance upon the
incident occurred way back five years ago from the
date of incident and there is no incriminating
material and/or oral evidence produced in
consonance with the said evidence. Learned
advocate submitted that the brother of the
deceased deposed that there was no direct
discussion and/or talk with his sister in regard
to the said issue but the said fact was disclosed
by the deceased to her mother and sister-in-law
but as stated above, as the mother of the deceased
has passed away, she was not available and out of
two sister-in-law, one sister-in-law is not
examined and another sister-in-law, who was
examined, has not supported the prosecution
version upto certain extent and subsequently she
has been declared hostile and in her deposition,
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she has not disclosed the said fact, therefore,
the said story put forward by the prosecution
cannot be relied upon.
7. Learned advocate submitted that at the time of
appreciating and evaluating the material and
evidence available on record, the learned Judge
has to consider probable defence raised by the
defence. Learned advocate submitted that
admittedly as per the case of the prosecution, one
day before the incident, the deceased as well as
the appellant no.3 had gone to her parental home
and at that relevant point of time, due to some
ornaments and other articles, disputes have been
cropped up between the deceased and family members
of the deceased and due to which, the deceased had
gone into disturbed state of mind and the said
defence raised by the appellants is prima facie
seems to be genuine and believable because
immediately on the next day, the deceased has
committed suicide, however, the defence raised by
the appellants has not been dealt with by the
learned Judge while passing impugned judgment and
order of conviction.
8. Learned advocate submitted that FIR was registered
under Sections 306, 498(A) and 114 of the IPC and
at the time of delivering judgment, the learned
Judge has recorded conviction only under Section
498(A) of the IPC and thus, the learned Judge has
not believed the story of Section 306 of the IPC.
9. Learned advocate has place reliance upon following
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decisions,
(1) the judgment of the Hon'ble Apex Court in
case of State of Maharashtra Vs. Rasul
Ganibhai Shaikh (Desai) & Ors., reported in
2020 SCC OnLine Bom 250;
(2) the judgment of the Hon'ble Apex Court in
case of Kamlesh Ghanshyam Lohia & Ors. Vs.
State of Maharashtra & Ors., reported in
2019 SCC OnLine Bom 1762;
(3) the judgment of the Hon'ble Apex Court in
case of Manju Ram Kalita Vs. state of
Assam, reported in (2009) 13 SCC 330;
(4) the judgment of the Hon'ble Apex Court in
case of Tapan Mandal Vs. State of West
Bengal, reported in 2009 SCC OnLine Cal
380;
10. Learned advocate, therefore, urged that
considering the facts of the case on hand as
stated above and in view of the ratio enunciated
in the aforesaid decisions, the present appeal may
be allowed and the appellants may be acquitted.
11. On the other hand, learned APP has opposed the
present appeal with a vehemence and supported the
judgment rendered by the learned Sessions Judge.
Learned APP submitted that the learned Sessions
Judge has rightly believed the evidence of the
prosecution witnesses in its true spirit and
proper perspective and assigned ample reasons
based on the evidence available on record for
convicting the appellants and, therefore, this
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Court may not have disturb the findings recorded
by the learned Sessions Judge as those reasons and
findings are in consonance with the evidence
available on record and the cumulative effect of
all the evidence clearly goes on to show the
hypothesis of guilty on the part of the accused.
Learned APP submitted that in order to bring home
the charges leveled against the accused, the
prosecution has examined 8 witnesses and during
the course of recording of evidence, all the
witnesses have deposed in a very consistent manner
about the cruelty meted out to the deceased by the
accused persons and oral as well as documentary
evidence available on record are corroborative
with each other, which ultimately proves the guilt
of the accused persons, therefore after
appreciating and considering the material and
evidence available on record, the learned Judge
has passed just, fair and reasonable order and it
does not require any interference at the hands of
this Court. Learned APP submitted that it is an
admitted position of fact that the span of
marriage life is more than 12 years but during
that period, the accused have meted out mental and
physical harassment to the deceased, which
ultimately led her to commit suicide and after
appreciating and evaluating all the evidence
available on record, learned Judge has reached to
a definite conclusion that the involvement of the
present appellants is clearly found out on the
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basis of clear, consistent, clinching and reliable
evidence produced by the prosecution and
depositions of all the witnesses are also
corroborated with each other. Learned APP,
therefore, urged that this appeal may be dismissed
as no error of law or error of fact could be said
to have been committed by the learned Judge at the
time of delivering the judgment and order of
conviction and sentence.
12. In view of the aforesaid submissions canvassed by
learned advocates for the parties, it is required
to be considered as to whether based on the
evidence available on record, the learned Sessions
Judge was justified in arriving at a conclusion
that the appellants were guilty of the offence
punishable under Sections 498(A) read with Section
114 of the IPC and liable to be sentenced as a
consequence thereof, as has been imposed on them.
13. Before adverting to the issue involved in the
present matter, I would like to refer to and rely
upon the principle of law enunciated by the
Hon'ble Supreme Court in catena of judicial
pronouncement.
13.1 The Hon'ble Supreme Court in case of S. Hanumantha
Rao V/s. S. Ramani, reported in AIR 1999 SC 1318
has considered the meaning of cruelty in the
context of the provisions under Section 13 of the
Hindu Marriage Act, 1955 and observed as under,
"mental cruelty broadly means, when either
party causes mental pain, agony or
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suffering of such a magnitude that it
severs the bond between the wife and
husband and as a result of which it becomes
impossible for the party who has suffered
to live with the other party. In other
words, the party who has committed wrong is
not expected to live with the other party."
13.2 The Hon'ble Supreme Court in case of V. Bhagat
V/s. Mrs. D. Bhagat, reported in AIR 1994 SC 710,
while dealing with the issue of cruelty in the
context of Section 13 of the Hindu Marriage Act
has observed as under,
"16. ........................... It is not necessary to prove that
the mental cruelty is such as to cause
injury to the health of the petitioner.
While arriving at such conclusion, regard
must be had to the social status,
educational level of the parties, the
society they move in, the possibility or
otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither possible
nor desirable to set out exhaustively. What
is cruelty in one case may not amount to
cruelty in another case. It is a matter to
be determined in each case having regard to
the facts and circumstances of that case.
If it is a case of accusations and
allegations, regard must also be had to the
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context in which they were made..
17. ....................................... The context and the set up in
which the word `cruelty' has been used in
the section seems to us, that intention is
not necessary element in cruelty. That word
has to be understood in the ordinary sense
of the term in matrimonial affairs. If the
intention to harm, harass or hurt could be
inferred by the nature of the conduct or
brutal act complained of, cruelty could be
easily established. But the absence of
intention should not make any difference in
the case, if by ordinary sense in human
affairs, the act complained of could
otherwise be regarded as cruelty..................."
13.3 The Hon'ble Supreme Court in case of Mohd. Hoshan
V/s. State of A.P., reported in (2002) 7 SCC 414,
while dealing with the similar issue held that
mental or physical torture should be
"continuously" practiced by the accused on the
wife and further observed as under,
"Whether one spouse has been guilty of
cruelty to the other is essentially a
question of fact. The impart of complaints,
accusations or taunts on a person amounting
to cruelty depends on various factors like
the sensitivity of the individual victim
concerned, the social background, the
environment, education etc. Further, mental
cruelty varies from person to person
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depending on the intensity of sensitivity
and the degree of courage or endurance to
withstand such mental cruelty. In other
words, each case has to be decided on its
own facts to decide whether the mental
cruelty was established or not."
13.4 The Hon'ble Supreme Court in case of Smt. Raj Rani
V/s. State (Delhi Administration), reported in AIR
2000 SC 3559, has held that while considering the
case of cruelty in the context to the provisions
of Section 498A IPC, the court must examine that
allegations/accusations must be of a very grave
nature and should be proved beyond reasonable
doubt.
13.5 The Hon'ble Supreme Court in case of Sushil Kumar
Sharma Vs. Union of India, reported in AIR 2005 SC
3100, has explained the distinction of cruelty as
provided under Section 306 and 498A IPC observing
that under Section 498A of the IPC, cruelty
committed by the husband or his relation drive
woman to commit suicide etc. while under Section
306 IPC, suicide is abated and intended.
Therefore, there is a basic difference of the
intention in application of the said provisions.
However in the facts of the present case, as
stated above, the concerned Judge has not believed
the story put forward by the prosecution with
regard to abetment to commit suicide.
13.6 The Hon'ble Supreme Court in case of Girdhar
Shankar Tawade V/s. State of Maharashtra, reported
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in AIR 2002 SC 2078, has held that "cruelty" has
to be understood having a specific statutory
meaning provided in Section 498A I.P.C. and there
should be a case of continuous state of affairs of
torture by one to another.
13.7 At this stage, I would also like to put reliance
upon the judgment of the Hon'ble Supreme Court of
India in case of Alauddin & Ors. Vs. State of
Assam & Anr., delivered in Criminal Appeal
No.1637/2021 by judgment dated 03.05.2024, wherein
the Hon'ble Supreme Court has considered the
aspect of contradictions in the depositions of the
witnesses especially when they were confronted
with their prior statements. Relevant paragraphs
of the said judgment read as under,
[6] Under Section 161 of the Code of Criminal
Procedure, 1973 (for short, 'CrPC'), the
police have the power to record statements
of the witnesses during the investigation.
Section 162 of CrPC deals with the use of
reads thus:
"162. Statements to police not to be
signed: Use of statements in
evidence.-
(1) No statement made by any person to a
police officer in the course of an
investigation under this Chapter,
shall, if reduced to writing, be
signed by the person making it; nor
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shall any such statement or any record
thereof, whether in a police diary or
otherwise, or any part of such
statement or record, be used for any
purpose, save as hereinafter provided,
at any inquiry or trial in respect of
any offence under investigation at the
time when such statement was made:
Provided that when any witness is
called for the prosecution in such
inquiry or trial whose statement has
been reduced into writing as
aforesaid, any part of his statement,
if duly proved, may be used by the
accused, and with the permission of
the Court, by the prosecution, to
contradict such witness in the manner
provided by Section 145 of the Indian
Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so
used, any part thereof may also be
used in the re- examination of such
witness, but for the purpose only of
explaining any matter referred to in
his cross-examination.
(2) Nothing in this section shall be
deemed to apply to any statement
falling within the provisions of
clause (1) of Section 32 of the Indian
Evidence Act, 1872 (1 of 1872), or to
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affect the provisions of Section 27 of
that Act. Explanation.-An omission to
state a fact or circumstance in the
statement referred to in sub-section
(1) may amount to contradiction if the
same appears to be significant and
otherwise relevant having regard to
the context in which such omission
occurs and whether any omission
amounts to a contradiction in the
particular context shall be a question
of fact."
The basic principle incorporated
in sub-Section (1) of Section 162 is
that any statement made by a person to
a police officer in the course of
investigation, which is reduced in
writing, cannot be used for any
purpose except as provided in Section
162. The first exception incorporated
in sub-Section (2) is of the
statements covered by clause (1) of
Section 32 of the Indian Evidence Act,
1872 (for short, 'Evidence Act').
Thus, what is provided in sub- Section
(1) of Section 162 does not apply to a
dying declaration. The second
exception to the general rule provided
in sub-Section (1) of Section 162 is
that the accused can use the statement
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to contradict the witness in the
manner provided by Section 145 of the
Evidence Act. Even the prosecution can
use the statement to contradict a
witness in the manner provided in
Section 145 of the Evidence Act with
the prior permission of the Court. The
prosecution normally takes recourse to
this provision when its witness does
not support the prosecution case.
There is one important condition for
using the prior statement for
contradiction. The condition is that
the part of the statement used for
contradiction must be duly proved.
[7] When the two statements cannot stand
together, they become contradictory
statements. When a witness makes a
statement in his evidence before the Court
which is inconsistent with what he has
stated in his statement recorded by the
Police, there is a contradiction. When a
prosecution witness whose statement under
Section 161 (1) or Section 164 of CrPC has
been recorded states factual aspects before
the Court which he has not stated in his
prior statement recorded under Section 161
(1) or Section 164 of CrPC, it is said that
there is an omission. There will be an
omission if the witness has omitted to
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state a fact in his statement recorded by
the Police, which he states before the
Court in his evidence. The explanation to
Section 162 CrPC indicates that an omission
may amount to a contradiction when it is
significant and relevant. Thus, every
omission is not a contradiction. It becomes
a contradiction provided it satisfies the
test laid down in the explanation under
Section 162. Therefore, when an omission
becomes a contradiction, the procedure
provided in the proviso to sub-Section (1)
of Section 162 must be followed for
contradicting witnesses in the cross
examination.
[8] As stated in the proviso to sub-Section (1)
of section 162, the witness has to be
contradicted in the manner provided under
Section 145 of the Evidence Act. Section
145 reads thus:
"145. Cross-examination as to previous
statements in writing. - A witness may
be cross-examined as to previous
statements made by him in writing or
reduced into writing, and relevant to
matters in question, without such
writing being shown to him, or being
proved; but, if it is intended to
contradict him by the writing, his
attention must, before the writing can
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be proved, be called to those parts of
it which are to be used for the
purpose of contradicting him."
The Section operates in two parts. The
first part provides that a witness can be
cross-examined as to his previous
statements made in writing without such
writing being shown to him. Thus, for
example, a witness can be cross- examined
by asking whether his prior statement
exists.
The second part is regarding
contradicting a witness. While confronting
the witness with his prior statement to
prove contradictions, the witness must be
shown his prior statement. If there is a
contradiction between the statement made by
the witness before the Court and what is
recorded in the statement recorded by the
police, the witness's attention must be
drawn to specific parts of his prior
statement, which are to be used to
contradict him. Section 145 provides that
the relevant part can be put to the witness
without the writing being proved. However,
the previous statement used to contradict
witnesses must be proved subsequently. Only
if the contradictory part of his previous
statement is proved the contradictions can
be said to be proved. The usual practice is
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to mark the portion or part shown to the
witness of his prior statement produced on
record. Marking is done differently in
different States. In some States, practice
is to mark the beginning of the portion
shown to the witness with an alphabet and
the end by marking with the same alphabet.
While recording the cross-examination, the
Trial Court must record that a particular
portion marked, for example, as AA was
shown to the witness. Which part of the
prior statement is shown to the witness for
contradicting him has to be recorded in the
cross-examination. If the witness admits to
having made such a prior statement, that
portion can be treated as proved. If the
witness does not admit the portion of his
prior statement with which he is
confronted, it can be proved through the
Investigating Officer by asking whether the
witness made a statement that was shown to
the witness. Therefore, if the witness is
intended to be confronted with his prior
statement reduced into writing, that
particular part of the statement, even
before it is proved, must be specifically
shown to the witness. After that, the part
of the prior statement used to contradict
the witness has to be proved. As indicated
earlier, it can be treated as proved if the
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witness admits to having made such a
statement, or it can be proved in the
cross- examination of the concerned police
officer. The object of this requirement in
Section 145 of the Evidence Act of
confronting the witness by showing him the
relevant part of his prior statement is to
give the witness a chance to explain the
contradiction. Therefore, this is a rule of
fairness.
[9] If a former statement of the witness is
inconsistent with any part of his evidence
given before the Court, it can be used to
impeach the credit of the witness in
accordance with clause (3) of Section 155
of the Evidence Act, which reads thus:
"155. Impeaching credit of witness.-
The credit of a witness may be
impeached in the following ways by the
adverse party, or, with the consent of
the Court, by the party who calls him-
(1) ..............................
(2) ..............................
(3) by proof of former statements
inconsistent with any part of his
evidence which is liable to be
contradicted."
It must be noted here that every
contradiction or omission is not a ground
to discredit the witness or to disbelieve
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his/her testimony. A minor or trifle
omission or contradiction brought on record
is not sufficient to disbelieve the
witness's version. Only when there is a
material contradiction or omission can the
Court disbelieve the witness's version
either fully or partially. What is a
material contradiction or omission depends
upon the facts of each case. Whether an
omission is a contradiction also depends on
the facts of each individual case.
[10] We are tempted to quote what is held in a
landmark decision of this Court in the case
of Tahsildar Singh & Anr. v. State of U.P.,
1959 Supp2 SCR 875 Paragraph 13 of the said
decision reads thus:
"13. The learned counsel's first argument
is based upon the words "in the manner
provided by Section 145 of the Indian
Evidence Act, 1872" found in Section
162 of the Code of Criminal Procedure.
Section 145 of the Evidence Act, it is
said, empowers the accused to put all
relevant questions to a witness before
his attention is called to those parts
of the writing with a view to
contradict him. In support of this
contention reliance is placed upon the
judgment of this Court in Shyam Singh
v. State of Punjab,1952 1 SCC 514 :
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[(1952) SCR 812]. Bose, J. describes
the procedure to be followed to
contradict a witness under Section 145
of the Evidence Act thus at p. 819:
Resort to Section 145 would only be
necessary if the witness denies that
he made the former statement. In that
event, it would be necessary to prove
that he did, and if the former
statement was reduced to writing, then
Section 145 requires that his
attention must be drawn to these parts
which are to be used for
contradiction. But that position does
not arise when the witness admits the
former statement. In such a case all
that is necessary is to look to the
former statement of which no further
proof is necessary because of the
admission that it was made."
It is unnecessary to refer to other
cases wherein a similar procedure is
suggested for putting questions under
Section 145 of the Indian Evidence Act, for
the said decision of this Court and similar
decisions were not considering the
procedure in a case where the statement in
writing was intended to be used for
contradiction under Section 162 of the Code
of Criminal Procedure. Section 145 of the
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Evidence Act is in two parts : the first
part enables the accused to cross-examine a
witness as to previous statement made by
him in writing or reduced to writing
without such writing being shown to him;
the second part deals with a situation
where the cross- examination assumes the
shape of contradiction : in other words,
both parts deal with cross examination; the
first part with cross-examination other
than by way of contradiction, and the
second with cross- examination by way of
contradiction only. The procedure
prescribed is that, if it is intended to
contradict a witness by the writing, his
attention must, before the writing can be
proved, be called to those parts of it
which are to be used for the purpose of
contradicting him. The proviso to Section
162 of the Code of Criminal Procedure only
enables the accused to make use of such
statement to contradict a witness in the
manner provided by Section 145 of the
Evidence Act. It would be doing violence to
the language of the proviso if the said
statement be allowed to be used for the
purpose of cross-examining a witness within
the meaning of the first part of Section
145 of the Evidence Act. Nor are we
impressed by the argument that it would not
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be possible to invoke the second part of
Section 145 of the Evidence Act without
putting relevant questions under the first
part thereof. The difficulty is more
imaginary than real. The second part of
Section 145 of the Evidence Act clearly
indicates the simple procedure to be
followed. To illustrate : A says in the
witness box that B stabbed C; before the
police he had stated that D stabbed C. His
attention can be drawn to that part of the
statement made before the police which
contradicts his statement in the witness
box. If he admits his previous statement,
no further proof is necessary; if he does
not admit, the practice generally followed
is to admit it subject to proof by the
police officer. On the other hand, the
procedure suggested by the learned counsel
may be illustrated thus : If the witness is
asked "did you say before the police
officer that you saw a gas light?" and he
answers "yes", then the statement which
does not contain such recital is put to him
as contradiction.
This procedure involves two
fallacies : one is it enables the accused
to elicit by a process of cross-examination
what the witness stated before the police
officer. If a police officer did not make a
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record of a witness's statement, his entire
statement could not be used for any
purpose, whereas if a police officer
recorded a few sentences, by this process
of cross-examination, the witness's oral
statement could be brought on record. This
procedure, therefore, contravenes the
express provision of Section 162 of the
Code.
The second fallacy is that by the
illustration given by the learned counsel
for the appellants there is no self-
contradiction of the primary statement made
in the witness box, for the witness has yet
not made on the stand any assertion at all
which can serve as the basis. The
contradiction, under the section, should be
between what a witness asserted in the
witness box and what he stated before the
police officer, and not between what he
said he had stated before the police
officer and what he actually made before
him. In such a case the question could not
be put at all : only questions to
contradict can be put and the question here
posed does not contradict; it leads to an
answer which is contradicted by the police
statement. This argument of the learned
counsel based upon Section 145 of the
Evidence Act is, therefore, not of any
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relevance in considering the express
provisions of Section 162 of the Code of
Criminal Procedure."
(emphasis added)
This decision is a locus classicus,
which will continue to guide our Trial
Courts. In the facts of the case, the
learned Trial Judge has not marked those
parts of the witnesses' prior statements
based on which they were sought to be
contradicted in the cross-examination."
13.8 At this stage, this Court would also like to put
reliance upon the judgment of this Court in case
of Chandrasinh Vs. State of Gujarat, reported in
2002 (2) GLR 960, wherein this Court has also
considered the aspect of contradiction, omissions
and improvisation in the deposition of witnesses
and, thereafter made observations as under,
"21. In Narayan Chetanram Chaudhary V/s. State
of Maharashtra, reported in (2000)8 SCC
457, it was held that minor contradictions
are bound to appear in the statements of
truthful witnesses as memory sometimes
plays false and sense of observation
differs from person to person. The
omissions in the earlier statement if found
to be of trivial details, the same would
not cause any dent in the testimony of the
eye witness. It was held that even if there
was contradiction of statement of a witness
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on any material point, that was no ground
to reject the whole of the testimony of
such witness.
22. The learned counsel contended that it was
not open for this Court to look into the
police statement of a witness to ascertain
whether the contradiction or omission
brought on record was really there or not.
He submitted that no police statement can
be used for any purpose in view of sec.
162(1) of the Code of Criminal Procedure
and therefore, it cannot even be referred
to by this Court. This untouchability
attached to police statements has indeed
taken root and became almost a blind belief
that can be unscrupulously exploited for
obscuring the truth. Let us therefore
examine the true character of a police
statement and see whether the extreme stand
taken by the learned counsel that this
Court cannot even look at the police
statement even in respect of the purpose
for which it was used at the trial under
sec. 162 of the Code of Criminal Procedure
read with sec. 145 of the Evidence Act, is
warranted by the provisions of sec. 162 of
Cr.P.C.
23 Section 161 of the Code of Criminal
Procedure entitled "Examination of witness
before police" provides for oral
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examination of a person by any
investigating officer when any such person
is supposed to be acquainted with the facts
and circumstances of the case. Sub-section
(2) of section 161 enjoins a statutory duty
on such person to answer "truly all
questions relating to such case put to him
by such police officer". Such witness can
refuse to answer only the questions the
answer to which would have tendency to
expose him to a criminal charge, penalty or
forfeiture. To provide authenticity to the
recording of statements under sec. 161(1),
it is laid down in sub-section (3) that
when the police officer reduces into
writing any statement made during an
examination of the witness under sec. 161,
a `separate and true record of the
statement' of each such person whose
statement is recorded by him, shall be
made.
24. The statutory duty cast upon a person
giving statement before the police under
sec. 161 to answer truly all questions
relating to the case put to him by the
investigating officer is significant,
because, whoever being legally bound by an
express provision of law to state the truth
(as has been provided by sub-section (2) of
sec. 161) makes any statement which is
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false and which he either knows or believes
to be false or does not believe to be true
is said to give false evidence within the
meaning of sec. 191 of the Indian Penal
Code. While intentionally giving of false
evidence in a judicial proceeding is
punishable with imprisonment of either
description for a term which may extend to
seven years and fine in any case other than
judicial proceedings, which will include
the liability arising out of the breach of
the statutory duty imposed on a person to
tell the truth when his statement is
recorded by the police officer, the person
who intentionally gives such false evidence
shall be punished with imprisonment of
either description for a term which may
extend to three years and to payment of
fine as provided by the second part of sec.
193 of the IPC. Thus, a person who makes a
statement before the police which he either
knows or believes to be false or does not
believe to be true commits an offence
punishable under sec. 193 second part read
with sec. 191 of the IPC read with sec.
161(2) of the Code of Criminal Procedure
under which there is express provision that
such person is bound to state the truth
while giving statement under section 161(1)
before the police. When such witness
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deposes on oath before the court that he
had not stated what was reduced in writing
by the investigating officer under sec.
161(2) to which his attention was drawn, he
would expose himself to a liability to be
prosecuted under sec. 193 read with sec.
191 of the IPC for giving false evidence in
view of the statutory duty imposed by sec.
161(2) to state truth in the police
statement. The offence in such cases is in
relation to the examination of the person
by the investigating officer under sec.
161(1) and not in relation to any judicial
proceeding in any court and therefore, the
provision regarding complaint in writing by
the court under section 195(1)(b) of the
Code of Criminal Procedure will not apply
for prosecuting a person for giving false
evidence within the meaning of sec. 191(1)
read with sec. 161(2) of the Cr.P.C. Under
sec. 161(3), the police officer is enjoined
with a duty to make a "true record of the
statement of each person whose statement he
records". Therefore, if a police officer
does not make a true record of the
statement i.e. either adds something in the
statement which is not said by the witness
or omits therefrom something that he may
have said or does not correctly take down
the statement, he commits a breach of his
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duty and would be liable for a gross
misconduct in discharge of his duties
besides exposing himself to criminal
liabilities including for the offence of
fabricating false evidence, as defined in
sec. 192 of the IPC which is punishable
under sec. 193 when it is fabricated for
the purpose of being used in any stage of a
judicial proceeding with imprisonment of
either description for a term which may
extend to seven years and fine. The
instances where the witnesses making
statements before the police officers under
section 161(1) of the Code resile or cases
in which it appears that the police officer
concerned had not made a true record of the
statement under sec. 161(1) or had made the
record containing a false statement which
was not in fact made by the witness or
omitted the statements made, must be
brought to the notice of the Head of the
Department and the State Government so that
proper check is maintained and appropriate
action is taken when called for. If the
witnesses and police officers are educated
on these aspects of their liability, the
witnesses would be less erratic in their
responses and the investigating agency will
act with greater responsibility.
25. The purpose for and the manner in which a
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police statement recorded under sec. 161
can be used at any trial are indicated in
sec. 162 of the Code. The embargo against
the use of the statement applies in respect
of the offence under investigation at the
time when such statement was made, meaning
thereby that such statement can be used at
the trial arising of such investigation
only as provided in the proviso to section
162(1). Sec. 162(1) of the Code of Criminal
Procedure reads as under:
"Section 162(1) :
No statement made by any person to a police
officer in the course of an investigation
under this Chapter, shall, if reduced to
writing, be signed by the person making it;
nor shall any such statement or any record
thereof, whether in a police diary or
otherwise, or any part of such statement or
record, be used for any purpose, save as
hereinafter provided, at any inquiry or
trial in respect of any offence under
investigation at the time when such
statement was made:
Provided that when any witness is called
for the prosecution in such inquiry or
trial whose statement has been reduced into
writing as aforesaid, any part of his
statement, if duly proved, may be used by
the accused, and with the permission of the
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Court, by the prosecution, to contradict
such witness in the manner provided by sec.
145 of the Indian Evidence Act, 18972 (1 of
1872); and when any part of such statement
is so used, any part thereof may also be
used in the re-examination of such witness,
but for the purpose only of explaining any
matter referred to in his cross-
examination."
25.1 Thus, at the trial, part of such statement
made before the police during the
investigation of the offence to which the
trial relates can be used for the purpose
of contradicting the witness who made that
earlier statement. The manner in which this
can be done is incorporated by referring to
the provision of sec. 145 of the Evidence
Act, which reads as under :
"145. Cross-examination as to previous
statements in writing -
A witness may be cross-examined as to
previous statements made by him in writing
or reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but if
it is intended to contradict him by the
writing, his attention must, before the
writing can be proved, be called to those
parts of it which are to be used for the
purpose of contradicting him."
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26. Under the Explanation to sec. 162, an
omission to state a fact or circumstance in
the police statement may amount to
contradiction if it appears to be
significant and otherwise relevant having
regard to the context in which such
omission occurs. Whether an omission
amounts to a contradiction in the
particular context is a question of fact.
Since the statement made by a witness
before the police under sec. 161(1) can be
used only for the purpose of contradicting
such witness on what he has now stated at
the trial as laid down by the proviso to
sec. 162(1), only the latter part of sec.
145 of the Evidence Act which lays down the
manner in which a witness can be
contradicted is applicable in context of
sec. 162(1) of the Code. The proviso to
sec. 162(1) allows such use of the police
statement "if duly proved". This means that
the record should show that the police
statement which is sought to be used for
contradicting the statements made by such
witness in his deposition in cross-
examination was a statement duly proved to
have been made by him. When the attention
of the witness is drawn to such previous
statement before the police and he admits
the making of the statement, it would be
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duly proved to have been made. If the
making of it is disputed by the witness,
then it has to be proved through the
investigating officer that it was the
statement of such witness recorded under
sec. 161(1) of the Code.
27. Under sec. 145 of the Evidence Act, when it
is intended to contradict the witness by
his previous statement reduced into
writing, the attention of such witness must
be called to those parts of it which are to
be used for the purpose of contradicting
him, before the writing can be proved. The
idea behind this provision is to enable the
witness to explain his statement in the
deposition which is to be contradicted by
his previous statement. The parts of the
police statement to which attention is so
drawn can now be proved and read in
evidence. A part of police statement can
thus be used for the purpose of
contradicting the witness deposing at the
trial. While recording the deposition of a
witness, it, therefore, becomes the duty of
the trial Court to ensure that the part of
the police statement with which it is
intended to contradict the witness is
brought to the notice of the witness in his
cross-examination. This necessarily would
entail referring to the police statement
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for the purpose of drawing the attention of
the witness to that part of the police
statement with which he is to be
contradicted. The process of bringing such
part of the police statement to the
attention of the witness would involve
correctly identifying that part from the
police statement. The attention of witness
is drawn to that part, and this must
reflect in his cross-examination by
reproducing it. If the witness admits the
part intended to contradict him, it stands
proved and it will be read while
appreciating the evidence. If he refuses to
have made that part of the statement, it
will then be proved in the deposition of
the investigating officer who again by
referring to the police statement will
depose about the witness having made that
statement. The process again involves
referring to the police statement and
culling out that part with which the maker
of the statement was intended to be
contradicted. When it is the duty of the
trial court to ensure that the attention of
the witness to the part of his police
statement with which he is to be
contradicted is drawn in his cross-
examination, it follows that such part must
be correctly reproduced in his cross-
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examination and duly proved, when disputed,
in the evidence of the investigating or
authorised officer. All this necessarily
involves referring to and reading of the
police statement. It is within the ambit of
the powers of the appellate Court to
consider whether the process of confronting
the witness with the part of his police
statement was correctly followed during the
trial and for this purpose, the police
statements which are amongst the
miscellaneous record and were used at the
trial for the purpose of contradicting can
always be referred and read in order to
ascertain whether the part of the police
statement with which the witness was to be
contradicted was correctly shown to him or
not. It is within the ambit of the
appellate jurisdiction of this Court to
verify from the record whether any error
has crept in the trial in the process of
confronting the witness with a part of the
police statement with which he was required
to be confronted.
28. In cases of contractions which are not
omissions, the process is simply of
checking up the part which was purported to
have been brought to the attention of the
witness as reproduced in his cross-
examination from the police statement from
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which it was shown to him and by
comparison, the court can ascertain whether
there is any error. The part of the police
statement with which the witness is
contradicted is already proved by the
investigating officer and forms part of the
evidence and can always be read to find out
whether the part which is referred in the
cross-examination for drawing the attention
of that witness is the same.
28.1 In cases where omission amounts to
contradiction, the omission in the police
statement of the witness is required to be
put in his cross-examination under section
145 (second part) of the Evidence Act read
with section 162(2) and the Explanation to
sec. 162 by drawing his attention to the
fact that what he is now stating at the
trial was not stated by him in the police
statement. This process necessarily entails
the reading of the entire police statement
and if the omission brought to the
attention of the witness is admitted, then
it stands proved, otherwise, it will have
to be proved in the evidence of the
investigation agency, where again the
process of referring and reading the police
statement takes place. The omission to
state a fact or circumstance in the police
statement which appears to be significant
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and is relevant having regard to the
context in which such omission in the
police statement occurs may amount to
contradiction, as provided by the
Explanation to sec. 162 of the Code of
Criminal Procedure Thus, only material
omissions which amount to contradiction can
be proved at the trial. For finding out
whether there is such omission (as was put
to the witness) proved, one has necessarily
to read the police statement from which the
omission was to be proved. Whether the
omission exists and was duly proved at the
trial is a matter which can be considered
by the appellate Court and such
consideration would involve and justify
referring to the police statement to
ascertain whether the provisions of section
145 of the Evidence Act read with sec.
162(2) and the Explanation to sec. 162 of
the Code of Criminal Procedure have been
duly observed by the trial Court, and
whether the omission really is there or
not. Albeit, the exercise of power by the
appellate Court is circumscribed by the
provision of sec. 162 about the purpose for
which any part of a police statement can be
used at the trial. However, within the
above permissible limits, the appellate
court is empowered to verify the material
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which forms part of the evidence by virtue
of the attention of the witness being drawn
to that material in his cross-examination
under sec. 145 of the Evidence Act to
contradict him and the proof of such
contradiction or omission as adduced at the
trial. One has necessarily to read that
portion of the statement which is used for
contradiction and which is said to be duly
proved in order to decide whether it really
was duly proved. It would, therefore, be
too naive to suggest that the appellate
Court cannot even refer to or read that
part of the police statement which has
already been used for the purpose of
contradicting the witness, for deciding
whether any error is committed in drawing
the attention of the witness to that part
in his cross-examination as required by
section 145 of the Evidence Act read with
sec. 162 (1) of the Code and whether such
part was duly proved in the deposition of
the investigating officer, if disputed by
the witness."
14. In the facts of the case, as stated above, it is
found out that an FIR being C.R. No.I-49/2001 has
been registered with Jodiya Station for the
offences under Sections 498(A), 306 and 114 of the
IPC alleging inter alia about cruelty meted out by
the accused to the deceased on account of not
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conceiving child, which led to committing suicide
by setting herself ablaze and, hence, the accused
were tried by the court concerned and at the end
of trial, an order of conviction has been passed
against them, which led to filing of the aforesaid
appeal challenging the impugned judgment and order
of conviction and sentence.
15. Having heard learned advocates appearing for the
parties and having considered the material and
evidence available on record, it would emerge that
one lady has lost her valuable life, due to which,
offence was registered and then, the accused
persons were prosecuted and convicted as stated
above but relying upon and referring to the oral
as well as documentary evidence by learned
advocate for the appellants, it is the specific
contention of appellants that there was no mental
and physical harassment at the hands of the
accused persons to the deceased and the said fact
is supported by the evidence available on record.
Therefore in order to appreciate the arguments
advanced by the learned counsel for the rival
parties and to determine the correctness of the
conclusions arrived at in the judgments passed by
the learned Sessions Court, it will be necessary
to discuss the evidence adduced by the witnesses
examined by the prosecution as well as the
defence.
16. PW No.1 viz., Dr. Shaileshbhai Jivrajbhai Patel is
examined at Exh.11. This witness in his deposition
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has stated that on 22.06.2001, he was discharging
his duty as Medical Officer at General Hospital,
Morbi, at that time, dead body of one lady viz.,
Nathiben was brought before him in burnt condition
for the purpose of performing postmortem and in
pursuance thereto, after sending yadi to concerned
police station, this witness along with one Dr.
Nitesh Vyas had performed postmortem upon the dead
body of the deceased and found that there are
number of burn injuries sustained by her. This
witness has opined that the cause of death is
shock due to burn injuries. However this witness
has admitted in his cross-examination that the
deceased was brought before him by her father-in-
law and other relatives and gave history that at
the time of cooking, she received burn injuries
and the said fact has been recorded by him on the
case papers.
17. PW No.2 viz., Devjibhai Bhikhabhai is examined at
Exh.21. This witness is the complainant and
brother of the deceased. This witness in his
deposition has stated that the deceased was his
sister, who earlier married at sarapdad village
and was blessed with one baby girl, however
thereafter, she was separated and again married
with the appellant no.3 but out of said wedlock,
they were not having any child and because of
which, mental and physical torture was meted out
to her and whenever she used to visit her parental
home, she complained about the mental and physical
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harassment meted out to her at the hands of the
accused. This witness has also narrated the
incident of physical assault made by the accused
due to which, four teethes of the deceased were
broken down. This witness has also stated that one
day prior to alleged incident, the deceased had
come to her parental home and at that time, she
stated that she had not eaten since last 5-6 days
as dispute is going on in her family and upon
making inquiry about the cause of dispute, this
witness was informed that as the deceased could
not conceive a child, the accused are giving
mental and physical torture. This witness has also
stated that just to save her marriage life, she
was persuaded to stay to her matrimonial house.
This witness has stated that on the fateful day,
he was informed by his uncle that the deceased
received burn injuries and was taken to Government
Hospital, Morbi and, hence, he rushed to hospital,
where the father-in-law of the deceased and other
relatives were present at the hospital. This
witness has stated that upon making inquiry from
the accused about the incident, they did not utter
a word, however after completion of all rituals
including cremation, he again visited the house of
the accused and inquired about the incident and at
that time, he was informed that due to stove
blast, the deceased received burn injuries and,
thereafter, he gave complaint before the police
station against the accused persons. This witness
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in his cross-examination has admitted that the
span of marriage life of the deceased with the
accused was about 12 years and during that period,
the deceased used to visit her parental house on
occasions and stayed there for about a week. It is
also stated by him that he witness also used to
pay visit to her matrimonial house frequently on
occasions and there were cordial relations between
two families. This witness has also stated in his
cross-examination that as the deceased could not
conceive a child, thereafter she stated to take
treatment from Doctor at Morbi.
18. PW No.3 viz., Laljibhai Bhikhabhai Khimsuriya is
examined at Exh.23. This witness is the brother of
the deceased. This witness has stated in his
deposition that the deceased got married with the
appellant no.3 around fourteen years before and it
was her second marriage. He stated that the
deceased complained about the mental and physical
harassment at the hands of the accused on account
of not conceiving a child but just to save her
marriage life, she was persuaded to stay to her
matrimonial house as everything would be
normalized after passage of time. He also narrated
the incident of physical attack upon the deceased,
due to which, she lost her four teethes. He
deposed that on 21.06.2001, he was informed about
the alleged incident and, hence, this witness
along with other relatives rushed to hospital and
inquired about the incident, in turn, he was
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informed that while cooking, the deceased received
burn injuries. This witness has reiterated the
facts as narrated by PW No.2. This witness has
also admitted in his cross-examination that the
span of marriage life of the deceased with the
appellant no.2 was more than 12 years and during
that period, not a single complaint was made by
the deceased.
19. PW No.7 viz., Valiben Hirabhai is examined at
Exh.34. This witness is the sister-in-law (n`>d) of
the deceased. This witness has stated in her
deposition that the deceased married with the
appellant no.3, which was her second marriage but
as she could not conceive a child, the accused
used to give mental and physical harassment to her
by taunting her and whenever the deceased used to
visit her parental home, she complained about the
ill-treatment meted out to her at the hands of the
in-laws. This witness has also reiterated the
facts as narrated by the brothers of the deceased.
20. Thus on analysis of the evidence produced by both
the parties, what emerges is that there are major
contradictions, omissions and discrepancies in the
evidence of witnesses with regard to the incident
of harassment meted out to the deceased and there
are different version of narration of facts stated
by the witnesses in their respective depositions.
As per the case of the prosecution, there was
constant mental and physical harassment at the
hands of the accused persons to the deceased,
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which ultimately led the deceased to commit
suicide by setting herself ablaze. However if we
look at the depositions of the witnesses, who are
close relatives of the deceased, it is found out
that the marriage span of the deceased with the
appellant no.3 was more than 12 years and during
that period, not a single complaint and/or
incident is reported with regard to any mental and
physical harassment. As per the case of the
prosecution and as can be seen from the
depositions of witnesses, five years' before the
date of incident, the accused no.3 had made
physical attack upon the deceased and due to
which, four teethes of the deceased were broken
down but on examination of the medical papers, no
such visible injury mark found at the time of
physical examination of the dead body of the
deceased. Over and above that, it is the story
narrated by the complainant and other witnesses
complaining about not taken food by the deceased
since last 5-6 days due to family dispute is also
not corroborated with the medical evidence. Not
only that, the Doctor, who had performed
postmortem upon the dead body had stated in a very
succinctly in the postmortem note that "nourished
body with fecal matter in the intestine was found
out". Further as can be seen from the examination-
in-chief of the witnesses, the aforesaid fact was
disclosed by the deceased to the complainant as
well as other witnesses as also mother and sister-
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in-law of the deceased but during the cross-
examination, they have stated that the said
version has not been narrated by her in their
presence but the said fact was disclosed by her
sister in front of their mother and sister-in-law
but admittedly at the time of recording
deposition, the mother was not available,
therefore, her deposition could not be recorded,
whereas the sister-in-law was examined but she
had not disclosed the said fact and in fact, she
has not supported the case of the prosecution and
turned hostile. Thus from the above facts, it is
clear that there are major contradictions,
omissions, inconsistencies, discrepancies,
exaggerations version as well as improvisation of
facts clearly found out from the evidence of the
prosecution witnesses. Over and above that, it is
also found out from the evidence of prosecution
witnesses that there was no strained relationship
between the deceased and the accused persons. Not
only that, the deceased and the appellant no.3
frequently used to visit her parental home and the
said fact is supported by the evidence of
prosecution witnesses.
21. At this stage, I would like to refer to the
provision of Section 498(A) of the IPC, which
reads as under,
""498A. Husband or relative of husband of a
woman subjecting her to cruelty. - Whoever,
being the husband or the relative of the
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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;
(b) harassment of the woman where such
harassment is with a view to coercing
her to 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."
Cruelty has been defined by the
explanation added to the Section itself.
The basic ingredients of Section 498A
I.P.C. are cruelty and harassment.
22. Thus "cruelty" for the purpose of Section 498A IPC
is to be established in the context of Section
498A IPC as it may be a different from other
statutory provisions. It is to be determined
considering the conduct of the man, weighing the
gravity or seriousness of his acts and to find out
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as to whether it is likely to drive the woman to
commit suicide etc. It is to be established that
the woman has been subjected to cruelty
continuously or at least in close proximity of
time of lodging the complaint. Further trivial
issues cannot be termed as `cruelty' to attract
the provisions of Section 498A IPC. Not only that,
causing mental torture to the extent that it
becomes unbearable may be termed as cruelty.
23. In the instant case, as the allegation of demand
of dowry is not there, this Court is not concerned
with clause (b) of the explanation. The elements
of cruelty so far as clause (a) is concerned, have
been classified as follows :
(i) any `wilful' conduct which is of such a
nature as is likely to drive the woman to
commit suicide; or
(ii) any `wilful' conduct which is likely to
cause grave injury to the woman; or
(iii) any `wilful' act which is likely to
cause danger to life, limb or health,
whether physical or mental of the woman."
24. Therefore if the facts of the case on hand are
examined, in that event, it is found out that
there are no continuous harassement as alleged by
the witnesses. Over and above that, the
prosecution has examined only interested
witnesses, who would naturally deposed against the
accused and the prosecution has not examined any
independent witnesses like neighbours, who would
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have knoweldge about the situation going on. Not
only that, on appreciating the evidence of
prosecution witnesses, it is found out that there
are major contradictions, omissions and
discrepancies in the evidence of witnesses with
regard to the incident of harassment meted out to
the deceased and there are different version of
narration of facts stated by the witnesses in
their respective depositions and, hence, their
evidence cannot be relied upon and the said fact
is proved by the appellant on the strength of the
material available on record.
25. Thus taking into consideration the aforesaid
settled legal provisions, the case on hand is
required to be examined. It is an admitted
position of fact that FIR has been lodged by the
brother of the deceased and the span of marriage
life is more than 12 years and the said fact is
also substantiated from the evidence of
prosecution witnesses, who are relatives of the
deceased. Further, the mental or physical torture
was not continuous on the part of the appellants
as there was no complaint against them till the
death of the deceased.
26. Taking into consideration the observations made by
the Hon'ble Supreme Court as well as this Court in
the aforesaid decisions, the submission made by
learned advocate for the appellants with regard to
exaggeration (improvisation) in the depositions of
the prosecution witnesses is required to be
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considered. It is found out from the evidence
available on record that learned advocate for the
defence had tried to bring certain facts on record
by confronting the witnesses as well as
complainant about the said exaggeration
(improvisation) in the story narrated by them at
the time of recording their deposition but they
have refused the said suggestions put forward by
the defence, therefore, to filter the evidence
available on record, particular phrases have been
referred to the IO specifically asking that
certain facts disclosed by the complainant at the
time of recording the deposition, have not at all
be recorded in the complaint registered before him
and certain phrases mentioned in the deposition of
the witnesses have not been at all in the
statements recorded before him and the
Investigating Officer has after examining the
papers gave answer in affirmative manner. Thus
from this fact itself, it is clear that there are
major exaggerations (improvisations) in the
depositions of the prosecution witnesses just to
rope the appellants in an offence and/or to make
the offence graver, however while examining the
evidence and while delivering the impugned
judgment and order of conviction and sentence, the
said exaggerations (improvisation) in the evidence
of the prosecution witnesses have not been at all
considered by the concerned Judge.
27. It is an admitted position of fact that in the
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present case, there is no dying declaration of the
deceased. It is also admitted position of fact
that when the deceased was taken to hospital after
the occurrence of incident, she was alive and,
thereafter, she succumbed to the injuries
sustained by her. But at the time of giving
primary treatment, no dying declaration was
recorded.
28. Therefore in view of the aforesaid observations
and discussion made hereinabove, it can be said
that while appreciating and examining the material
and evidence on record, the concerned Judge has
committed an error, which would call for
interference in the impugned judgment and order of
conviction and sentence and, hence the present
appeal deserves to be allowed.
29. In the result, the present appeal is allowed. The
impugned judgment and order of conviction dated
16.07.2004 passed by the learned Additional
Sessions Judge & Fast Track Court No.5, Jamnagar
in Sessions Case No.137/2001 is hereby quashed and
set aside and the appellants are acquitted of the
offences with which they were charged by giving
them the benefit of doubt. The appellants are on
bail and, hence, their bail bond stand cancelled
and they shall forthwith be set at liberty if not
required in any other case. Record & Proceedings
be sent back to the concerned court forthwith.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
