[Cites 15, Cited by 0]
Gujarat High Court
Ashokkumar Harshadbhai Brahmin vs State Of Gujarat on 28 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/133/2004 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 133 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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ASHOKKUMAR HARSHADBHAI BRAHMIN & ORS.
Versus
STATE OF GUJARAT
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Appearance:
ABATED for the Appellant(s) No. 1
MR PARAM R BUCH(5625) for the Appellant(s) No. 1.1,1.2,1.3
MR HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/11/2025
ORAL JUDGMENT
1. The appeal is proceeded by the heirs of the
original appellant-accused. The heirs are two
daughters and one son of the deceased-appellant, who
came to be convicted for the offence punishable under
Section 498A of Indian Penal Code (hereinafter
referred to as 'I.P.C'), while was acquitted for the
offence punishable under Section 306 I.P.C and
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Sections 4 and 5 of the Dowry Prohibition Act. The
sentence ordered is one year of rigorous imprisonment
with fine of Rs.500/- and in failure of payment,
further to undergo 15 days rigorous imprisonment. The
judgment of conviction was passed by the learned
Sessions Judge, Banaskatha, District Palanpur on
20.11.2003 in Sessions Case No.55 of 1997.
2. The wife of the original appellant-accused
committed suicide by self-immolation by pouring
kerosene on her body and alighted herself. The
marriage of the deceased - Manjula was with the
accused - Ashokkumar in the year 1981, who resided at
village Vav. The alleged incident was dated
24.03.1994 at 5 p.m.
3. The case of the prosecution was that, for about
five years, the matrimonial life was good thereafter,
the accused became liquor addict and had gone out of
line. The accused was beating his wife and torturing
her. Many a times he demanded money from her. She
took the money from the complainant's house.
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3.1 The reliance has been placed on postal letters
which were communicated from the side of the
complainant as well as from the appellant and the
deceased. The reliance on the letters by the
prosecution is to substantiate the case of dowry
demand and mental and physical harassment, while the
defence has relied on the letters to prove that the
allegations had been rebutted during the process of
trial by the postal communications.
3.2 Learned Advocate Mr. Param Buch submitted that
the matrimonial life was of 13 years and the present
heirs on record are two daughters and one son. Their
existence itself would prove that the matrimonial
relation was cordial and conducive. Mr. Buch
submitted that the cause of suicide has not been
proved on record. The learned Trial Court Judge has
not believed the case under Section 306 of I.P.C, nor
under the Dowry Prohibition Act. Thus, Mr. Buch
submitted that the very base of the prosecution case
was disproved during the trial.
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3.3 Learned Advocate Mr. Param Buch submitted that
the learned Trial Court Judge has placed reliance on
the letter written by the accused at Exh.16. It was
addressed to the deceased with reference to her visit
at Dhanera at the complainant's place. Mr. Buch
submitted that the said letter has to be read in
right spirit to understand the relation between the
husband and the wife, where the language would show
that the husband was urging his wife to return home
with the children so that the future of the children
does not get jeopardized.
3.4 Learned Advocate Mr. Param Buch further stated
that the complainant has raised the issue of the
scooter belonging to the complainant, which came in
the custody of the accused, however, the letter
written by the accused itself clarifies the
possession, and the accused had rather sought
assistance and support of the complainant for
bringing back the scooter and protecting him from the
alleged person named Malo and his daughter, who
according to the complainant was in relation with
prostitutes and had gone out of line. Mr. Buch
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submitted that the scooter was under mortgage as the
accused was in need of money, however, after repaying
the loan amount, the scooter was released.
3.5 Learned Advocate Mr. Param Buch submitted that
as per the complainant, a month prior the date of
suicide, the deceased had gone to the complainant's
house and she stayed there for about fifteen days.
The fact on record suggests that deceased was ill and
was suffering from many diseases. As per the accused,
she was having strokes of epilepsy and that could
have been the cause for her to commit suicide. Mr.
Buch submitted that the period of matrimonial life
was of 13 years with three children; there would not
be any cause for mental or physical harassment at the
hands of the accused to the deceased and such fact
would get proved through the letters written from
both the sides.
3.6 Learned advocate Mr. Buch relying on the
judgments of (i) State of W.B. v. Orilal Jaiswal
reported in (1994) 1 SCC 73 (ii) Hans Raj v. State of
Haryana reported in (2004) 12 SCC 257 (iii) Raj Rani
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(Smt.) Vs. State (Delhi Administration), reported in
(2000) 10 SCC 662, submitted that the ingredients
under Section 498A does not get proved, more
particularly, when the matrimonial life has crossed
the statutory legal limit of seven years, and
submitted that even presumption under Section 113A of
the Indian Evidence Act would not be drawn in the
present matter thus, submitted to allow the appeal.
4. Countering the arguments, learned APP Mr. Hardik
Mehta has referred to the charge, to submit that the
accused was put to trial on the ground that on
24.03.1994 he had asked deceased to bring money from
her parental house and often, prior to that, was
mentally and physically harassing her and therefore,
as she could not endure such cruelty of the husband,
she committed suicide. Mr. Hardik Mehta submitted
that the provision of Section 113A of the Indian
Evidence Act would not get stringent for the
matrimonial span of seven years, hence the law does
not allow such cruelty to go unpunished.
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4.1 Learned APP Mr. Hardik Mehta, relied on the
medical evidence and the postmortem note, to submit
that because of 95 to 98% of burns injury, it was
impossible to take dying declaration, however, the
documentary evidence in the form of letters very
clearly proves the cruelty as well as the statements
before the father and the brother should be
considered as dying declaration of the deceased,
which would prove the fact that the accused-appellant
was often demanding money and was harassing the
deceased.
4.2 Learned APP Mr. Hardik Mehta submitted that the
learned Trial Court Judge has relied on the letters
at Exh.16 and Exh.17 to consider the case under
Section 498A of the I.P.C. Mr. Mehta has referred to
the evidence of the complainant-father, the brother
and the sister-in-law, to submit that the cruelty has
been proved by the witnesses, and stated that there
is no cause to interfere in the judgment of the trial
Court.
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4.3 The charge under Exh.3 during the sessions trial
was to the effect that on 24.03.1994, at 5 p.m., the
accused told his wife to bring money from her
parental home and by saying so would often beat her
and cause mental and physical cruelty. Thus, being
fed-up of such cruelty, she burned herself by pouring
kerosene and thereby, the accused was charged under
Section 498A of I.P.C and Sections 4 and 5 of the
Dowry Prohibition Act, 1961.
4.4 The charge further notes that on the said date
and time, the accused had asked his wife to bring
money from her parental home and because of the
constant beatings and physical and mental harassment,
she burned herself, therefore, the accused was
charged for the offence of abetment to suicide under
Section 306 of the I.P.C.
4.5 The cause for invoking both the sections are the
same. It has been noted in the charge that on
24.03.1994, the accused had asked his wife to bring
money from her parent's house. The charge also refers
that often the accused used to beat her and thereby
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had committed the offence of cruelty. The same cause
has been shown for the commission of suicide alleging
that the accused has abetted the suicide. The trial
Court has not believed the case of abetment of
suicide, nor has believed the case under the Dowry
Prohibition Act, 1961.
5. Dr. Dilipkumar Keshavlal Thakkar was examined as
PW-1, who had examined the dead body of deceased-
Manjulaben on 25.03.1994 at about 10.30 a.m. The
police had brought the dead body with an inquest
panchnama. After the postmortem, the cause of death
was recorded in the postmortem note at Exh.11. The
cause of death noted was shock due to extensive burns
on her body. In the evidence, the doctor stated that
the victim was 95 to 98% burnt. The doctor was
confronted with the question with regard to disease
of epilepsy. The doctor could state about the signs
and characters of epilepsy, however, he could not
corroborate the same or affirm it in the present
matter. However, the doctor affirmed the suggestion
that if a patient suffering from epilepsy, while
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cooking suddenly have an attack, then would fall on
the front side. The corroboration regarding the
illness of the deceased could be brought through the
evidence of the daughter of deceased, who was
examined as P.W.4 - Darshanaben Ashokkumar Trivedi,
who stated in the cross-examination that her mother
was ill since long time and she was taking treatment
from various doctors for the illness at Dhanera,
Palanpur.
6. According to the daughter (P.W.4), it was the
father who was looking after the medical needs of the
mother. She also could accompany her parents at
Dhanera. The daughter stated that the mother had skin
disease and was always complaining of pain. The
daughter also stated that her mother had mental
illness and often was having the epilepsy stroke. The
daughter in her evidence stated that when she
returned from school, she saw fire in the kitchen and
her mother was burning there. She, her father as well
as the neighbours had tried to douse her. According
to daughter, there was no quarrel between her parents
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and no such incident had occurred of any cruelty or
beatings.
7. The complainant's father Kaniram Shobharam Oza was
examined as PW-2, who stated that his daughter
Manjula was married in the year 1981 with the accused
Ashokkumar Harshadbhai Trivedi at Village Vav. The
father stated that five years prior to the death, the
daughter and son-in-law were staying separate from
the parents-in-law. From the matrimonial life, they
had two daughters and a son. The initial five years
of marriage was smooth and thereafter, the accused
got addicted to liquor and had gone out of line. The
father stated that he used to beat the daughter and
would harass her a lot and often would demand money
and therefore, the daughter would come to her
parental house to take the money. The complainant
stated that the daughter used to come on the
insistence of the accused. She would cry and would
take the money and whenever she used to visit them,
she would talk about her married life and would
narrate about the harassment. The father has also
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stated that during her matrimonial life, often the
daughter would write letters. The father had relied
upon the letter at Exh.13, 14, 15.
7.1 The complainant in relation to his allegation of
accused being going out of character, stated that the
accused would not give his salary at home and would
remain in the activities of prostitution which was
going on in Vadia village and whenever the money
would get exhausted, he would beat his daughter after
drinking alcohol.
7.2 The reliance was placed on letter at Exh.16 to
state that the accused as well as four to five people
took his daughter Manjula by dragging her in the
jeep. It has been further stated that three years
prior to the incident of suicide, the accused had
taken away the scooter of his elder son for visiting
Zerad village at a distance of 18 to 20 kms from
Dhanera. The complainant stated that though the
accused assured of coming back, he did not return the
scooter and they waited for about 15 days and
complainant sent his son to Vav, where his son was
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informed that the accused had come with the scooter
at Vav and immediately had left the place. The
complainant would further state that his daughter as
well as the mother-in-law told his elder son as to
why they had given the scooter, expressing
apprehension that the accused would sell it or would
cause accident.
7.3 The complainant stated that thereafter, within a
week, he received a letter from the accused who had
informed that he had gone to some places on the
scooter as well as had visited the place at Rajasthan
and also informed that from the brothel at Vadia,
Malo and his daughter were behind him and were
beating him. Therefore, he had got treatment. The
accused had also written to the complainant that
those persons from Vadia had demanded money.
Therefore, he had mortgaged the scooter to a Thakor
of Shihori for an amount of Rs.2,000/- and had
instructed the complainant to repay the money to take
back the scooter. The complainant has also relied
upon the letter at Exh.17 and 18 to substantiate the
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fact that the son-in-law had asked them to get the
scooter released by paying Rs.2,000/-.
7.4 According to the complainant, one month prior to
the suicide, the daughter had stayed at complainant's
house for about 15 days and during that period, she
had informed about the beatings and harassment in
connection with the money to the complainant. The
complainant stated that at that time, he had advised
the daughter to remain there at their house, however,
she was reluctant and informed that she had now
received a job in Anganvadi and with that, she would
run her house. She had also informed the father that
her parents-in-law were keeping well with her and
that she does not want to break her matrimonial life.
The learned Trial Court Judge has observed about the
letter at Exhs.13, 15, 16 on which much reliance has
been placed by learned APP Mr. Mehta. The learned
Trial Court Judge, considering the facts noted in
those letters, had believed this case under Section
498A IPC to convict the accused.
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8. Learned APP Mr. Mehta as well as learned
Advocate Mr.Buch have taken this Court through all
the letters which had been made a part of the trial.
The letters produced by the complainant as father
were produced in evidence from Exh.13 to Exh.18,
while from the side of accused by list Exh.19 about
17 letters had been produced which were from the year
1982 to 1993. The list has also a description of the
medical documents from the year 1982 to 1994 of
various doctors. Those documents are from serial
No.18 to 31.
9. PW-3 is the neighbor - Ambalal Khodidas of the
complainant, who has supported the complainant to
state that whenever Manjula used to come to her
parental house, she would often inform about the
harassment and the beatings by the accused-
Ashokkumar.
10. PW-5 is the brother of the deceased, who has
also supported the deposition of the father and had
affirmed that initially 4 to 5 years the marriage
life was good and thereafter, often when the deceased
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used to come to their house, she used to complain
about the husband, who was subjecting her to mental
and physical cruelty and would often ask her to bring
money from the parental house, and for the money, he
used to beat her. The brother also stated that one
month prior to the incident, the sister had come to
stay at the house for about 15 days and at that time
too, she had narrated about the harassment. The
witness, as brother was referred to Exh.36, the
letter. The postcard was written by him in the year
1991 but denied the suggestion on the reference made
of Exh.36 that the accused was keeping Manjulaben in
a good condition. The brother stated that in the year
1990-91, the sister had come to Dhanera and that they
had taken her for the treatment but denied the
suggestion that apart from Dhanera, the treatment was
also carried in Palanpur. The brother has no
knowledge that the sister was having skin disease. He
stated that she would stay for about a week or ten
days whenever she would come for the medical
treatment, but denied the suggestion that deceased
was mentally ill and also denied the suggestion of
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sister suffering fits. The brother stated that he had
never made a complaint to the accused by writing a
letter of his ill-treatment of beatings. He was also
referred to the postcard Mark-40/1, 40/2, which he
stated that those were written by him to the accused.
10.1 The evidence of the brother does not specify or
makes it clear as to what were the instances of the
cruelty or harassment from the accused to his sister.
One month prior to the death, she had come and stayed
there for about 15 days at her parental house. She
had narrated about the harassment in the form of
beatings she suffered because of demand of money. The
brother could have clarified and stated the same in
his deposition. The allegations made are general in
nature. The complainant as well as the brother could
state that the husband was beating her, asking her to
bring money from the parental home. What was the
amount demanded and why it was demanded does not get
clarified and proved on record. The fact of sister
having illness and about the treatment, gets support
from the evidence of the brother.
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11. PW-6 Narmadaben is the sister-in-law and the
wife of PW-5. She could also state that the husband
was beating Manjulaben for money and when she stayed
for 15 days at their house, she told her that her
husband was beating her and was asking her to bring
money. The fact does not get clear from the
deposition of the sister-in-law as to what money or
what total amount was demanded by the accused. The
matrimonial life for initial four to five years was
good and smooth. No allegation is made of any
harassment or cruelty from the accused for those
initial period of marriage.
12. P.W.7 - Kantilal Bhagwandas is the neighbor who
turned hostile and has not supported the case of the
complainant. P.W.8. - Pratapsing Hemrajji, the P.S.O
had recorded declaration of death vide A.D. No.4/94
and the Station Diary Entry No.2 was produced on
record at Exh.49. Exh.47 is the declaration by the
accused himself about his wife getting burnt, and
about her death. The said declaration was given on
25.03.1994. PW-9 is the Panch of the place of
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incident. The Panchnama at Exh.61 has not been
supported by him. In the same way, another Panch PW-
10 has not supported the said Panchnama at Exh.61.
13. P.W.11 - Gajesinh Hajarsingh is the head-
constable who investigated the accidental death
entry. He stated that he had not registered the
complaint and also affirmed that in presence of
panchas, the kerosene-can was not seized from the
place of offence, nor had he filed report for heavy
offence. PW-11 stated that after the post-mortem,
when the dead-body was instructed to be handed over
to the complainant, the head-constable stated that
the complainant refused to take the possession of the
dead body.
14. PW-12 is the Investigation Officer -
Narendrapuri Hardevpuri Goswami. According to him,
the father had given an application and for the
investigation had gone to Dhanera to meet the
applicant Kaniram and took his complaint at Dhanera,
which he identified at Exh.73. I-C.R.No.23 of 1994
was registered under Sections 498A and 306 of the
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I.P.C. The I.O. had conducted the investigation right
from the registration of the complaint till filing of
the charge sheet. He stated that during the course of
investigation, he had not procured the original
letters from the complainant, while complainant had
sent certain letters along with the application Mark
8/1. He has not sought any clarification for delay of
seven days in registration of the complaint. The I.O.
would say that it had not got disclosed during his
investigation that the deceased was suffering from
skin disease and was also an epilepsy patient. He has
also referred to the mortgage of the scooter which he
could find during the investigation that it was with
the person named Kesarsingh, however, he had not
recorded any statement of Kesarsingh.
15. The conviction which has followed is
specifically relying on the document at Exhs.13, 15,
16. The letter at Exh.13 is an undated letter written
by the deceased Manjulaben to the brother Kalidas
(PW-5). The letter would rather state that the
daughter, in fact, had asked for the same treatment
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to them as was given to her sister Bhanu. The demand
of money of Rs.5,000/- was made by the daughter
herself. She had insisted for the money, raising her
grievance that if the money was not paid to her then
she would forever be in pain. She also expressed her
desire that if her life has to be peaceful, then the
said issue, she said, was required to be resolved.
She stated that it was not the brother-in-law who was
asking for money, but she herself now was insisting
for it. She also insisted that she would remain
present on the occasion at Dhanera only if her
husband would attend the same. She had also stated
that she was offended by the issues of the community.
She also stated in her letter Exh.13 that her
matrimonial life was happy.
15.1 Exh.13 does not disclose of any demand of money
in the form of dowry. The money rather would appear
to be of some social transaction which the deceased
herself stated was Rs.5,000/- which she insisted to
be paid. She had also insisted that she would remain
in the family occasions at Dhanera only with her
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husband. Exh.13, thus, would not suggest of any
harassment from the side of the accused.
15.2 Exh.14 is dated 02.05.1990 written by the
deceased to her brother and parents, where she has
made reference of the salary of the accused which he
had taken with him on 06.04.1990 and had returned
back only on 24.04.1990, where the daughter had
informed the brother that the accused was not having
money with him. The letter further states that the
accused had informed that he had gone to Kathiyavad
and letter also makes a reference of some money of
Rs.50/- borrowed from some person of Shihori. She
also informed the brother and the parents that the
accused was borrowing money from almost everywhere
but if at all he comes for money there, then she had
asked them not to allow him in the house. She also
had referred to her health saying that it was good.
15.3 The letter Exh.14 would suggest that the accused
had, at that relevant time, borrowed money from
various people and the deceased was concerned about
it and therefore, had instructed her parental
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relatives not to give money to the accused and also
had instructed not to allow him to enter the house.
The cause does not get clear. The accused was working
in Public Welfare Department (PWD). After receiving
the salary, it appears that he had visited the place
at Kathiyavad. Why he was borrowing money from people
does not get clear. The only one instance of Rs.50/-
borrowed from some person of Shihori has been
referred by the wife. Exh.14, thus, would not
conclude that the accused was harassing the deceased
for money. It cannot be said that he was insisting
money only from the parental house of the deceased.
The complaint of the deceased was of accused
borrowing money from people.
15.4 The reliance has been placed on Exh.15 and 16 by
the learned Trial Court Judge. Exh.15 is dated
12.04.1991 and Exh.16 is an undated letter, however,
the reference made in the letter would suggest that
it was written in the month of almost around June.
Exh.15 is in relation to the scooter. The letter has
been written by the deceased to the brother and the
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parents, where she has made reference of the scooter
which he had borrowed from the brother-in-law stating
that till date, the husband has not come home and she
was under impression that he was visiting Surat, but
on inquiry, she found that husband had not gone to
Surat and she got information that the accused was at
Rajasthan, referring to a place of Raniwada stating
that he was with the scooter and she stated that the
scooter has been sold for Rs.10,000/- and therefore,
she has instructed her brother that if he wanted to
give complaint to the police, he could do so. She
also has referred that the husband has not joined the
office till then. She has referred that along with
the husband, some lady is staying with him at
Samdhadi. She stated that she is not worried about
the said fact but was worried about the scooter. She
has also referred that the scooter from Ishwarkhatri
of Vav was purchased for Rs.6,000/- and she assured
that if there is a police case, she and her mother-
in-law would support the case. The deceased has also
stated that they are not willing to bring the husband
back home but are at pain for the cheating.
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16. Learned Advocate Mr. Buch submitted that the
learned Trial Court Judge has failed to observe the
reply of the accused which was addressed to the
brother by letter Exh.17 dated 05.04.1991, where the
accused had informed the cause of delay. After taking
the scooter, accused stated that his enemies were
behind him and with the scooter he met with an
accident and he was unconscious and those people had
taken him to Shihori and demanded money; they had
beaten him and he was bleeding at the head, forehead,
and he had asked them not to beat him and assured to
bring the money. Therefore, he had gone to PWD Office
at Shihori Panchayat, Sub-Division and there he had
mortgaged the scooter for Rs.2,000/- with the
Chowkidar who had given him money. Mr.Buch submitted
that the accused had even asked the brother-in-law to
contact Chowkidar Kasarsai and inquire about the
scooter which he had placed under mortgage and he
also assured that the Chowkidar would show him the
scooter. The accused had also informed the brother-
in-law that one Babukaka and the daughter of Malani
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of Vadia were behind him. This clarification, thus,
has been given by the accused by way of the
communication, to which Mr. Buch submitted that it is
an answer to the allegation of prostitution. It
appears from the communication that the person who
were behind the accused had restrained him and had
demanded money.
16.1 The document Exh.32 is a letter written by the
complainant to the uncle of the accused who has
informed that the scooter was brought back and it was
in good condition. The money was paid to Kesarsingh.
Thus, the letter Exh.32 would support the contention
that the accused had no ill-intention of taking the
scooter.
16.2 Document at Exh.18 dated 05.04.1991 is by the
accused himself, where he has again stated about the
scooter, Babukana of Vadia and a girl named Modi, one
another boy who was not known to him, who had
followed him in jeep and had dashed the scooter. He
got injured on the forehead and head. He stated that
those people had placed the scooter in their vehicle
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and had taken him to Shihori, where he got his
treatment and they had demanded money from him and as
he had no money, he mortgaged the scooter for
Rs.2,000/- at Shihori. He was taken to Rajasthan at
Samrada Village, where he stayed for about 10 days.
He had also asked that this scooter was with the
Chowkidar at PWD Office at Shihori, whose name was
Kesarsingh, and had also stated that he has not sold
the scooter and had asked to pardon him. Again, he
had asked the in-laws to take care of Babukana of
Vadia and the girl named Modi.
16.3 The letters appears to be inter se communication
between the in-laws. The allegation of scooter and
accused, being out of line, going in prostitution
gets falsified. Rather the accused is explaining the
in-laws about his situation when he had gone with the
scooter. The communication of the complainant to the
uncle also proves that the scooter was brought back.
Thus, this reasons to show as a cause for harassment
does not get supported. Rather, the accused had
rebutted those allegations by way of the
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communication relied upon.
16.4 Exh.16 is a letter by the accused. Perusal of
the letter would show that it was the husband who was
urging his wife to return back home. He was pursuing
her, stating that he would wait for her till
18.06.1986. He was emotionally urging the wife since
both the children were with her stating that he was
coming to take them back, even if he had to meet with
death. The letter does not suggest that there was any
such threat given to the wife, rather it was an
emotional communication from the side of the husband
to pursue the wife to come back home. Thus, letter
Exh.16, which appears to be for the time around
19.06.1986, would not have direct proximate
communication with the cause of suicide. The deceased
took the ultimate step of taking her life on
24.03.1994. From 1981 to 1994, they had stayed
together and had their matrimonial life with little
jerks and up-downs, the facts which get disclosed in
the letters does not suggest of any such harassment
which would be considered as cruelty to lead her in a
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condition where the deceased had no other option but
to commit suicide.
17. The necessary ingredients to prove Section 498A
would be 'cruelty'. In the case of Shardaben,
Daughter of Ishwarlal Bhogilal & Ors. Vs. State of
Gujarat, dated 15.07.2025, rendered in Criminal
Appeal No.2608 of 2005, it has been observed as
under:-
"24.8 To prove the charge of Section
498A of IPC, the prosecution has to
establish that the husband or his
relative subjected such woman to
cruelty. The term 'cruelty' is explained
in two parts of Section 498A. The first
part speaks of willful conduct of a
nature that is likely to drive the woman
to commit suicide or to cause grave
injury or danger to the life, limb or
health, either physical or mental of
such woman.
24.9 The second part of Section 498A of
IPC provides for harassment of a woman
with a view to coercing her or any
person related to her to meet unlawful
demand for any property or valuable
security on account of these failure or
any person related to her to meet such
demand.
24.10 Section 498A of IPC does not
attract every harassment or every type
of cruelty. The prosecution has to
establish that the beating and
harassment of the deceased were with a
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view to force her to commit suicide or
to fulfill the illegal demand of dowry.'
18. In the case of State of W.B. v. Orilal Jaiswal
reported in (1994) 1 SCC 73, it was held by Hon'ble
Supreme Court as under:-
"15. We are not oblivious that in a
criminal trial the degree of proof
is stricter than what is required in
a civil proceedings. In a criminal
trial however intriguing may be
facts and circumstances of the case,
the charges made against the accused
must be proved beyond all reasonable
doubts and the requirement of proof
cannot lie in the realm of surmises
and conjectures. The requirement of
proof beyond reasonable doubt does
not stand altered even after the
introduction of Section 498-A IPC
and Section 113-A of Indian Evidence
Act. Although, the court's
conscience must be satisfied that
the accused is not held guilty when
there are reasonable doubts about
the complicity of the accused in
respect of the offences alleged, it
should be borne in mind that there
is no absolute standard for proof in
a criminal trial and the question
whether the charges made against the
accused have been proved beyond all
reasonable doubts must depend upon
the facts and circumstances of the
case and the quality of the
evidences adduced in the case and
the materials placed on record. Lord
Denning in Bater v. Bater [(1950) 2
All ER 458, 459 : 66 TLR (Pt. 2)
589] has observed that the doubt
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must be of a reasonable man and the
standard adopted must be a standard
adopted by a reasonable and just man
for coming to a conclusion
considering the particular subject-
matter."
19. To prove the offence under Section 498A of
I.P.C., the prosecution has to establish that the
husband subjected the deceased woman to cruelty as
defined under Section 498A. As noted in the referred
judgment, the requirement of proof beyond reasonable
doubt does not stand altered even after introduction
of principle of presumption as noted under Section
113A of the Indian Evidence Act, 1872.
20. To prove the case under Section 498A, the
prosecution has to prove the case beyond reasonable
doubt. In the case of Orilal Jaiswal (supra), it has
been observed that the standard of proof being beyond
reasonable doubt does not get altered even after the
introduction of Section 498A of IPC and Section 113A
of the Indian Evidence Act, 1872.
21. In Hans Raj v. State of Haryana, reported in
(2004) 12 SCC 257, the Hon'ble Supreme Court has
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explained the significance of provisions of Section
113A in connection with Section 306 as well as
Section 498A of the I.P.C. It has been noted as
under:-
"The question then arises as to whether
in the facts and circumstances of the
case the appellant can be convicted of
the offence under Section 306 IPC with
the aid of the presumption under Section
113-A of the Indian Evidence Act. Any
person who abets the commission of
suicide is liable to be punished under
Section 306 IPC. Section 107 IPC lays
down the ingredients of abetment which
includes instigating any person to do a
thing or engaging with one or more
persons in any conspiracy for the doing
of a thing, if an act or illegal
omission takes place in pursuance of
that conspiracy and in order to the
doing of that thing, or intentional aid
by any act or illegal omission to the
doing of that thing. In the instant case
there is no direct evidence to establish
that the appellant either aided or
instigated the deceased to commit
suicide or entered into any conspiracy
to aid her in committing suicide. In the
absence of direct evidence the
prosecution has relied upon Section 113-
A of the Indian Evidence Act under which
the court may presume on proof of
circumstances enumerated therein, and
having regard to all the other
circumstances of the case, that the
suicide had been abetted by the accused.
The explanation to Section 113-A further
clarifies that cruelty shall have the
same meaning as in Section 498-A of the
Penal Code, 1860 which means:
"498-A. (a) any wilful conduct which is
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of such a nature as is likely to drive
the woman to commit suicide or to cause
grave injury or danger to life, limb or
health (whether mental or physical) of
the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing
her or any person related to her to meet
any unlawful demand for any property or
valuable security or is on account of
failure by her or any person related to
her to meet such demand."
13. Unlike Section 113-B of the Indian
Evidence Act, a statutory presumption
does not arise by operation of law
merely on proof of the circumstances
enumerated in Section 113-A of the
Indian Evidence Act. Under Section 113-A
of the Indian Evidence Act, the
prosecution has first to establish that
the woman concerned committed suicide
within a period of seven years from the
date of her marriage and that her
husband (in this case) had subjected her
to cruelty. Even if these facts are
established the court is not bound to
presume that the suicide had been
abetted by her husband. Section 113-A
gives a discretion to the court to
raise such a presumption, having regard
to all the other circumstances of the
case, which means that where the
allegation is of cruelty it must
consider the nature of cruelty to which
the woman was subjected, having regard
to the meaning of the word "cruelty" in
Section 498-A IPC. The mere fact that a
woman committed suicide within seven
years of her marriage and that she had
been subjected to cruelty by her
husband, does not automatically give
rise to the presumption that the suicide
had been abetted by her husband. The
court is required to look into all the
other circumstances of the case. One of
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the circumstances which has to be
considered by the court is whether the
alleged cruelty was of such nature as
was likely to drive the woman to commit
suicide or to cause grave injury or
danger to life, limb or health of the
woman. The law has been succinctly
stated in Ramesh Kumar v. State of
Chhattisgarh [(2001) 9 SCC 618 : 2002
SCC (Cri) 1088] wherein this Court
observed: (SCC pp. 626-27, para 12).
"12. This provision was introduced by
the Criminal Law (Second) Amendment Act,
1983 with effect from 26-12-1983 to meet
a social demand to resolve difficulty of
proof where helpless married women were
eliminated by being forced to commit
suicide by the husband or in-laws and
incriminating evidence was usually
available within the four corners of the
matrimonial home and hence was not
available to anyone outside the
occupants of the house. However, still
it cannot be lost sight of that the
presumption is intended to operate
against the accused in the field of
criminal law. Before the presumption may
be raised, the foundation thereof must
exist. A bare reading of Section 113-A
shows that to attract applicability of
Section 113-A, it must be shown that (i)
the woman has committed suicide, (ii)
such suicide has been committed within a
period of seven years from the date of
her marriage, (iii) the husband or his
relatives, who are charged had subjected
her to cruelty. On existence and
availability of the abovesaid
circumstances, the court may presume
that such suicide had been abetted by
her husband or by such relatives of her
husband. Parliament has chosen to sound
a note of caution. Firstly, the
presumption is not mandatory; it is only
permissive as the employment of
expression 'may presume' suggests.
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Secondly, the existence and availability
of the abovesaid three circumstances
shall not, like a formula, enable the
presumption being drawn; before the
presumption may be drawn the court shall
have to have regard to 'all the other
circumstances of the case'. A
consideration of all the other
circumstances of the case may strengthen
the presumption or may dictate the
conscience of the court to abstain from
drawing the presumption. The expression
-- 'the other circumstances of the case'
used in Section 113-A suggests the need
to reach a cause-and-effect relationship
between the cruelty and the suicide for
the purpose of raising a presumption.
Last but not the least, the presumption
is not an irrebuttable one. In spite of
a presumption having been raised the
evidence adduced in defence or the facts
and circumstances otherwise available on
record may destroy the presumption. The
phrase 'may presume' used in Section
113-A is defined in Section 4 of the
Evidence Act, which says -- 'Whenever it
is provided by this Act that the court
may presume a fact, it may either regard
such fact as proved, unless and until it
is disproved, or may call for proof of
it."
22. In the case of Raj Rani (Smt.) Vs. State (Delhi
Administration), [(2000) 10 SCC 662], it was observed
by the Hon'ble Supreme Court as under:-
"4. We have gone through the entire
writing contained in the suicide note.
It makes a serious castigation against
her husband for being an addict to
narcotic drugs. Then she made a general
allegation against her mother-in-law
and in a lesser degree towards the
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appellant. But unfortunately she did
not advert to any concrete instance
which can be termed as cruelty as
defined in Section 498-A of the Penal
Code, 1860. The utterances said to have
been made by the appellant towards the
deceased were to her chagrin and she
had taken them very seriously and in
the suicide note she described such
utterances as not worthy of
reproduction.
5. It is not enough that the deceased
felt those words hurting, it must be
subjected to judicial scrutiny and the
Court must be in a position to hold
that those words were sufficiently
hurting enough as to amount to
"cruelty" falling within the parameters
fixed in Section 498-A of the Penal
Code, 1860. The area remains grey and
vague. Not a single word said to have
been spoken by the appellant as against
the deceased had been put on record by
the deceased in the suicide note in
spite of the fact that the said note is
a very lengthy letter running into
several paragraphs. The tenor and
language of the suicide note would
reflect that she was not an illiterate
lady. As the Court is rendered helpless
to judge whether the words which the
deceased heard from the appellant would
amount to cruelty, it is far from
possible for the criminal court to hold
that she is guilty of the offence of
cruelty as envisaged in the section. It
is also to be pointed out that the
deceased did not mention a single deed
which the appellant would have done
against her. All that is said against
the appellant was that she spoke
something which she took as
objectionable."
23. Here in the present case, the daughter of the
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deceased and the accused had been examined as
witnesses. She has not alleged about any cruelty
meted to the mother from the side of the father. The
complainant's allegation of money demanded by the
accused also does not get proved. The learned Judge
has not believed the case under Dowry Prohibition
Act. As referred above, analysing the letters
produced during the trial, it appears that certain
circumstances forced and pressed the accused to
borrow money. Some social relations constrained the
deceased herself to demand Rs.5,000/- from the
parents. The allegation of the scooter does not get
proved. The document from the complainant in the form
of letter itself proves that the scooter was returned
back in a good condition. The immediate proximate
cause of suicide by the wife does not get proved
during the trial.
24. In view of the analysis of the evidence and
relying on the principles laid down in the referred
judgment, taking into fact that the matrimonial life
was of 13 years, the prosecution had failed to prove
cruelty as defined under Section 498A to consider
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case for conviction under the same section and for
that reason, the observation of the learned Trial
Court Judge becomes erroneous and is required to be
set aside.
Cr.P.C. permits the near relatives to apply for the
leave to continue the appeal after the death of the
appellant and if the leave is granted, the appeal
shall not abate. Explanation to proviso includes
lineal descendants in the definition of near
relative. Hence, the daughters and son are on record
to continue with the appeal.
26. In the result, appeal is allowed. The judgment
and order dated 20.11.2023 passed by the learned
Sessions Judge, Banaskatha, District Palanpur in
Sessions Case No.55 of 1997 is set aside and the
deceased accused stands acquitted. Record and
Proceedings be sent back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
PARMAR KRISH/SB-01
