Allowed

Feroz Khan, v. The State of Andhra Pradesh

Telangana HC15 Apr 2010CRLA/1298/2002

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against conviction for cruelty under Section 498A IPC. It held that evidence of mental harassment was vague, inconsistent, and insufficient to prove willful conduct likely to drive the wife to suicide. The dying declaration was ruled inadmissible as the cause of death was not a charge.

What did the court decide?

Conviction and sentence for Section 498A IPC were set aside; appellant acquitted; bail bonds cancelled and fine refunded.

Feroz Khan, Vs The State of Andhra Pradesh — Criminal Trial and Appeal | Telangana HC (2010)

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THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.1298 OF 2002

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JUDGMENT:

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This appeal is directed against the Judgment, dated 07.11.2002 passed in S.C.No.247 of 2000 on the file of the Metropolitan Sessions Judge, Hyderabad, wherein the appellant/ A.1 was found guilty of the offence punishable under Section 498A (a) I.P.C. and was convicted for the same under Section 235 (2) Cr.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months.

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2. The arguments of the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State are heard. Perused the record.

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3. The case of the prosecution in brief is as follows:

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A1 is the husband of the deceased Azmera Begum. A2 is father of A1. A1 was harassing the deceased demanding additional dowry of Rs.10,000/- and also suspecting her whenever she talked to the neighbours and relations. Unable to bear the harassment, the deceased Azmera Begum committed suicide by setting herself to fire on 11.01.2000 at 04:30 PM. She was shifted to Osmania General Hospital and while undergoing treatment, she died on 12.01.2000 at 11:15 PM. After completion of the investigation, the police filed

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charge sheet against A1 and A2 for the offence punishable under Section 304B I.P.C. During the pendency of the trial, A2 died and the case against him was abated on 27.07.2001. A1 denied the offence and pleaded not guilty to the charges framed under Section 498A (a), 498A (b) and 304B I.P.C.

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4. In support of their case, the prosecution examined PWs.1 to 12 and marked Exs.P-1 to P-18 and MOs.1 and 2.

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5. PWs.1 and 2 are the parents of the deceased and PW.3 is the neighbour, examined as an eyewitness. The rest of the witnesses testified to different aspects pertaining to the investigation. The prosecution mainly relied upon Ex.P.12, dying declaration of the deceased, recorded by the Magistrate and Ex.P-13, the statement of the deceased, recorded by PW.10, the Head Constable of Tappachabutra Police Station, basing on which the First Information Report Ex.P-15 was registered in Cr. No.3 of 2000.

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6. On a consideration of the evidence available on record, the learned Sessions Judge held that A1 harassed his deceased wife suspecting her character when she spoke to neighbours and greeted them and the said harassment has led the deceased newly married woman, to commit suicide and convicted A1 for the

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offence punishable under Section 498A (a) I.P.C. (Charge No.2) and acquitted him of the other offences punishable under Section 498A (b) I.P.C. (Charge No.1) and 304B I.P.C. (Charge No.3) and imposed sentence as stated above. Aggrieved by the said conviction and sentence in respect of Charge No.2 under Section 498A (a) I.P.C., the present appeal is filed.

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7. The thrust of the allegations in the prosecution version was mainly directed against the alleged demand for additional dowry falling under the ambit of Section 304B I.P.C. and 498A (b) I.P.C. and the trial Court found the appellant not guilty of the said offences and acquitted the appellant/A1 of the said offences. The trial Court, however, convicted the appellant/A1 for the offence punishable under Section 498A (a) I.P.C., pertaining to the alleged mental harassment restraining the deceased from talking to neighbours or greeting them on occasions. Hence, the only point to be considered in this appeal is whether the evidence on record is sufficient to warrant conviction for the said offence under Section 498A (a) I.P.C? In fact, there is no such offence as

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498A (a) in the I.P.C. and the explanation contained in Section 498A has two limbs (a) and (b). The explanation states that among other things for the purpose of this Section cruelty means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit

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suicide. Clause (b) of the explanation, which relates to harassment over a demand for any property or valuable security, is not relevant for the present case, as the appellant/A1 was found not guilty in respect thereof by the trial Court. The question that arises for consideration in this appeal is whether the evidence on record establish any such willful conduct on the part of the appellant/A1, which is of such a nature as is likely to drive the deceased woman to commit suicide?

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8. PW.1, mother of the deceased and PW.2, father of the deceased, admittedly had no personal knowledge nor were they witness to any such harassment by appellant/A1. It is not disputed that the marriage of the deceased with appellant/A1 took place about three months prior to the incident. According to PW.1, a month after the marriage the deceased Azmera Begum came to her house and informed that she was harassed on the ground of wishing neighbours and speaking to neighbours. She further deposed that on the occasion of Ramzan Festival, A1 and A2 along with the deceased came to her house and she consoled the deceased at that time. According to PW.1, the visit to her house by the deceased along with the A.1 on the occasion of Ramzan festival was second visit after her marriage. In the crossexamination PW.1 admitted that she did not question A1 about the alleged harassment on either of the two

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occasions. She also admitted that no complaint was lodged with the police with regard to any such harassment. On the evening of the next day of Ramzan, A1 and the deceased returned to their house and on the next day, the incident took place. PW.1 also admitted that she does not know the names of the neighbours to whom the deceased used to talk and about which A1 objected. PW.2’s evidence is also similar to that of PW.1 and he did not have any personal knowledge of the alleged harassment, except what the deceased told him. He also admitted that no complaint was given to the police.

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9. PW.3, who is a neighbour of the accused and cited as an eyewitness deposed that A1 used to warn the deceased not to speak to neighbours and in that regard there used to be quarrels between them. It is not known and the evidence of PW.3 is also silent as to how and under what circumstances he happened to be present when appellant/A1 is alleged to have given warning to the deceased against speaking to neighbours.

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10. Thus, except the evidence of PWs.1 to 3, which is quite vague and general in nature and PWs.1 and 2 not having any personal knowledge of the alleged harassment and PW.3 not explaining the circumstances under which he happened to be a witness for the said quarrel between the appellant/A1 and the deceased which admittedly took place inside their house in private,

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there is no other direct evidence to substantiate the allegation that appellant/A1 indulged in any such harassment of the deceased on the ground that she was talking to neighbours and greeting them on festival occasions. None of those neighbours with whom the deceased was talking to or greeting on festival occasions is either cited or examined. It is not the evidence of even PW.3 that the deceased was talking to him or greeting him on festival occasions and A1 was taking exception to the same.

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11. The prosecution mainly relied upon Ex.P-12, the dying declaration recorded by the V Metropolitan Magistrate and Ex.P-13, the statement of the deceased recorded by the Head Constable, PW.10. In Exs.P-12 and P-13 the deceased is said to have referred to the harassment by A1. In Ex.P-12 it is stated by the deceased that A1 used to tell her not to speak to any one or visit any one’s house. It is further stated in Ex.P-12 that after returning from her parent’s house on the next day of Ramzan, A1 again quarrelled with her questioning as to why she greeted the neighbours on the occasion of festival and having felt humiliated, she poured kerosene and set fire to herself. In Ex.P-13 also the deceased stated that for one month, after marriage, appellant/A1 was treating her affectionately and later he was asking her not to speak to the neighbours or relatives and when she

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spoke to any one, he used to suspect her. She further stated that after returning from her parents’ house on 11.01.2000 at about 04:30 PM, she could not bear the insult and set herself ablaze. For the first time in Ex.P-13 the deceased stated that appellant/A1 used to suspect her when she was talking to neighbours. Ex.P-13 was recorded at 09:00 PM and Ex.P-12, dying declaration, was recorded by the Magistrate at 10:35 PM on the same day i.e., 11.01.2000. In Ex.P-12, the deceased has nowhere stated before the Magistrate that A1 was suspecting her character when she talked to neighbours. Further the earlier statement, Ex.P-13 recorded by the Head Constable, is silent as to what happened after they returned from her parents’ house and as to whether there was any altercation or quarrel between the wife and husband. It is not stated in Ex.P-13 as to why the deceased felt insulted and as to the immediate or proximate cause for taking such extreme step of committing suicide. According to the prosecution, during their visit to the deceased parents house on the occasion of Ramzan, she greeted some neighbours and talked to them and after returning home A1 questioned the deceased over the same and therefore, the deceased felt humiliated and committed suicide. But, Ex.P-13, which was recorded at the earliest point of time, is totally silent on the said aspect. It was only in Ex.P-12, dying declaration, the deceased made an

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improvement by saying that after returning home A1 quarreled and beat her asking her why she greeted neighbours on the eve of festival and therefore, she suffered mental agony. In Ex.P-12, however, the deceased has nowhere stated that A1 entertained any suspicion over the character of the deceased. It is also not the evidence of PWs.1 to 3 that A1 had any such suspicion against the deceased and labouring under such suspicion he was harassing her. Thus, the versions contained in Exs.P-12 and P-13 recorded on the same day with short interval in between are not consistent with each other.

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12. Even assuming that the variation in the versions contained in Exs.P-12 and P-13 are only natural and common in view of the fact that the deceased was making the statements while she was undergoing acute pain and agony on account of the burn injuries, and attaching the due importance to the dying declaration having regard to the fact that it was recorded by the learned Magistrate, still what all emerges from Exs.P-12 and P-13 is that the accused was asking the deceased not to talk to neighbours and he was questioning her why she was greeting the neighbours. The evidence on record including Exs.P-12 and P-13 does not show that the accused was suspecting the character of the deceased in any manner and driven by any such suspicion, he was

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questioning the deceased and subjecting her to mental harassment. It is to be noted that marriage of appellant/A1 with the deceased took place only about three months prior to the incident. The deceased was new to the people and also the surroundings at the place of the appellant/A1. Even, if appellant/A1 was asking the deceased not to talk to the neighbours, the same does not necessarily amount to imposing any restrictions on her speech or movements. It is quite possible that appellant/A1 was advising the deceased not to have any such talks with the neighbours having regard to the fact that the deceased was newly wedded young girl and was new to the people around and the surroundings of the house of the appellant/A1. Such well meaning advice on the part of appellant/A1 to the deceased cannot be construed as an act of harassment. It is not as though the appellant/A1 did not allow the deceased to go out. Even according to PWs.1 and 2, within the period of three months after marriage the deceased visited her parents on two occasions. In the absence of any evidence to show that appellant/A1 was suspecting the character of the deceased and labouring under such suspicion he was harassing the deceased in the manner alleged, the mere allegation that appellant/A1 was asking the deceased not to speak to neighbours or greet them on festival occasions does not amount to mental harassment or cruelty in terms of the explanation contained in Section

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498A I.P.C.

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13. It is well settled that every act of harassment does not amount to cruelty within the meaning of Section 498A I.P.C. and it is only the harassment, which forced to commit suicide alone that is contemplated. No doubt, the deceased committed suicide by setting herself ablaze. Simply, because she committed suicide, it cannot be held that the harassment was such that she was forced to commit suicide. In the absence of any evidence establishing that the harassment was of such a nature and to the extent that the deceased had no other option except to commit suicide, the extreme step taken by the young girl in a fit of emotion does not led to any inference of existence of such harassment and existence of the same has to be proved as a matter of fact. In the present case the said evidence is lacking.

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14. Learned counsel for the appellant/A1 relied upon a decision reported in Inderpal v. State of M.P .^[1] , wherein the Apex Court held thus:

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“Unless the statement of a dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death

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comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A I.P.C. disjuncted from the offence under Section 306 I.P.C. the question of her death is not an issue for consideration and on that premise also Section 32 (1) of the Evidence Act will stand at bay so far as these materials are concerned.”

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15. In the above case also the appellant-husband was charged with an offence under Section 306 I.P.C. and was tried for the offence punishable under Section 306 I.P.C. and was convicted by the trial Court. The Apex Court in the appeal held that the offence under Section 306 I.P.C. was not made out, but, however, found the appellant guilty of the offence punishable under Section

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498A I.P.C. and convicted him for the same. The prosecution also relied upon certain statements said to have been made by the deceased before her death and contained in the letters Exs.P-7 and P-8. While holding that in order to make the statement of dead person admissible in law, the statement must be regarding the cause of death and the circumstances of all the transactions resulting in her death in cases in which the cause of death come into question, the apex Court held that Section 498A I.P.C. is disjuncted from the offence under Section 306 I.P.C., as the question of her death is

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not an issue for consideration. Therefore, Section 32 (1) of the Indian Evidence Act, 1872, (for short, “the Act”) will stand at bay.

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16. In the present case also the appellant/A1 was found not guilty of the offence punishable under Section 304 B I.P.C. and the present offence under Section 498A IPC, which is subject matter of the appeal, is disjuncted from the main offence under Section 304B I.P.C., in which the cause of death came into question. In view of the principles laid down by the apex Court in the above decision, the cause of death does not come into question while considering the present offence under Section 498A I.P.C., which is disjuncted from the offence under Section 304B I.P.C. and therefore, the statement made by the deceased in Exs.P-12 and P-13 as to the cause of death becomes inadmissible in law. Section 32 of the Act contemplates that statements of relevant facts made by a person who is dead etc., are themselves relevant facts in the cases which are mentioned therein, and Sub-section (1), states that when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such statements are relevant.

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17. In the present context of dealing with the offence under Section 498A I.P.C., which is not a case where the cause of death of the deceased has come into question,

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the statement of the deceased contained in Exs.P-12 and P-13 as to the cause of her death, cannot therefore, be held to be relevant or admissible within the ambit of Section 32 (1) of the Act. Except the said statement in Exs.P-12 and P-13, which themselves are found to be mutually inconsistent, there is no other reliable or acceptable evidence establishing the prosecution case of the alleged harassment of the deceased by appellant/A1. Thus, viewed from any angle the conviction of the appellant/A1 for the offence punishable under Section 498 – A (a) I.P.C. (Charge No.2) and the sentence imposed for the same by the trial Court are held unsustainable and are liable to be set aside and are accordingly set aside.

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18. In the result, the Criminal Appeal is allowed setting aside the conviction and sentence imposed on appellant/A1 for the offence under Section 498A (a) I.P.C. and appellant/A1 is acquitted thereof under Section 235 (1) of the Code of Criminal Procedure, 1973. The bail bonds of the appellant/A1 shall stand cancelled and the fine amount paid shall be refunded.

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___________________ G.V.SEETHAPATHY, J

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15.04.2010 MD

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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Dated: 15.04.2010

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PRESENT

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THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY

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CRIMINAL APPEAL No.1298 of 2002

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Between:

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Feroz Khan, S/o. Mohd. Fakeer Khan

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..... APPELLANT/A.1

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AND

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The State of Andhra Pradesh

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....RESPONDENT

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The Court delivered the following Judgment:

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THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY

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CRIMINAL APPEAL No.1298 OF 2002

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Dated 15^th April, 2010

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[1] 2003 SCC (Cri) 1049

Feroz Khan, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Feroz Khan, v. The State of Andhra Pradesh

Case brief

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