- S. 498 A The sole constituent of offence u/s 498 A is cruelty which means 'wilful conduct'. The Word wilful contemplates obstinate and deliberate brhaviour on part of offender for it to amount to cruelty. Thus 'Mensrea' is an esssential ingredient of the offence.
- The principles are that the standard of proof of cruelty are higher in degree in criminal law than in civil law under the matrimonial causes.
- The intention or mensrea on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for martimonial causes while it is an essential element in criminal law.
- It is enough if crulety is proved by preponderance of probabilities in civil law while in criminal trials the coduct of cruelty has to be proved beyond all resonable doubt.
- It is immaterial in civil law whether respondent's conduct was aimed at the other spouse or is due to unwarranted indifference attributable perhaps to selfishness or laziness while it is very much material in criminal proceeding and for relief of matrimonial causes in civil law the conduct of spouse need not necessarily result in danger to life, limb or health but a reasonable apprehension of such danger is enough, whereas section 498 A contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cuase grave injury or danger to life, limb or health.
| [ In the High Court of Andhra Pradesh, Criminal Appeal No. 756 of 1987. ] 10/06/1988 | ||
Judge(s) : BHASKARA RAO |
Judgment - BHASKAR RAO J
(1) THIS is an appeal filed by both the accused in S. C. No. 756 of 87 on the file of the Metropolitan Sessions Judge. Hyderabad against their convictions under Sections 498-A and 306 I. P. C. and sentences to suffer each of them rigorous imprisonment for a period of three years and a fine of Rs 500/- under Sec. 306 IPC and rigorous imprisonment for a period of one year and a fine of Rs. 200/- under Section 498-A IPC.
(2) THE fact as spoken to by P. Ws. 1 and 2 in brief ale. A-2 is the mother of A-i. A-i is the husband of one Bhagya Lakshmi (hereinafter referred to as the deceased) P. W. 2 is the son and the deceased IS the daughter of P. W. 1 The marriage between the deceased and A-i took place on 4-5-1984. On demand by A-2 P. W. 1 presented to A-i at the time of the marriage 12 tulas of gold silver plate of 50 tulas silver glass of _20t tulas and silver Iota of 150t tulas etc. total worth of Rs. 50 000/ - 15 days later to the marriage her father of A-i died. Thereupon both the accused began blaming the deceased that her stepping-in resulted in the death of her father in-law and started ill-treating and harassing her. During the Deepavali after the marriage the accused asked P. W i for 2 tulas of gold one Hatari T v. and new clothes. However P. W. 1 gave only the T. V. and new clothes. Subsequently the deceased gave birth to a female child. Then again the accused asked P. W. 1 for 2 tulas of gold and a silver spoon for the baby which P. W. 1 gave. Even after the birth of the baby there was no peace in the house and both the accused continued ill-treating the deceased. While so in May 86 P. W. i performed the marriage of his son P. W. 2. On that occasion both the accused demanded for 5 tulas of gold. However; P. W. i expressed his inability and gave them only Rs. i ii6/- for purchasing new clothes to A-i. On 25-5-1936 P. W. 1 invited all his relatives for launch to his house in connection with the marriage of P. W. 2. A-i and the deceased had their lunch. P. W. i requested them to stay for dinner also in the night. A-i took the dinner at about 8-30 p. m. along with other gents. When dinner was being served to the ladies A-i did not allow the deceased to dine and took her away in an all to to his house. During the journey in the all to A-i pressed the neck of the deceased and when she protested he also slapped her. After reaching the house A-i complained to A-it that at the time of the meals proper courtesy was not shown to him in the house of his in- Jaws. So A-2 abused the deceased. On toe next morning i. e. 26-5. 1986 at about 4. 00 a. m. the deceased went to the ground-floor to bring water from the common tap. When the deceased went to the up stairs with the water-pot A-2 abused the deceased filthy language and questioned her it she was talking with her paramour on the around-floor. The deceased retorted by saying bow it would be if she used the same abuse against A-2. Thereupon A-2 started beating the deceased and A-i also joined her in beating the deceased The deceased wanted to pick- up her daughter who was till then crying. However both the accused snatched the child and pushed the deceased into the kitchen asking her to die. Being unable to bear with the day-to-day torture the deceased bolted the door inside poured kerosene on herself and burnt herself with a match stick. She was admitted into the hospital on the same day i. e. 26-5-i986 but she died on 7-6-i986. The doctor who conducted the post-mortem opined that the death was due to the burn-injuries. P. W. io the Inspector of Police came to the hospital on 26-5. i986 and recorded the dying declaration Ex. p17 of the deceased. The Magistrate P. W. 9 on request also came to the hospital on 26-5-1986 and recorded the dying declaration Ex. P-i6. After completion of the investigation the charge-sheet was filed.
(3) THE prosecution in all examined P. Ws. i to i6 and marked documents. Exs. P. i to P-2i. When examined under Section 3i3 Cr. P. C. A-i stated as under: TTOn 25-5-i986 myself and my wife were called to my in-laws house for lunch. We staved on till the evening. P. W. i P. W. 2 Ramamurthy P. Lingamurthy and P. Nandagopal drank liquor heavily and abused. They also abused my wife. We returned to my house in that night. In the morning she brought two pot of water. The baby was badly crying. A-2 asked her to feed milk to the baby. My wife went to the baby and beat her. A-2 intervened asked her why she was beating he child and asked to give the baby to her Then my wife abused saying was the baby her daughter and did she beget the baby by sleep in with her son. We reprimanded say in. why she had So much of sort temper and should she be have with olden like. this. The baby was crying out of her breath was almost getting breathless. Myself and A- 2 took the child aside and tried to pacify it. Meanwhile she went inside the kitchen while we were aside the child She chained from fluids barged the door and shouted her to open. When she did not open 1 took. an iron pounder broke the door and brought her out. I covered her with blanket and extinguished the flames. Subsequently I tock her in all to to Gandhi Hospital.
(4) TO the same effect is the statement made by A-2 in her examination under Section 313 Cr. P. C.
(5) THE trial Court after considering the entire oral and documentary evidence found that the prosecution has proved both the charges convicted them under the said charge and sentenced them as stated supra. Hence this appeal.
(6) MR. Seethepathi the learned counsel for the appellants submitted that the offence wader Section 306 IPC is entirely dependent and consequential to the one under section 498-A IPC read with Section i13 of the Evidence Act. To warrant conviction under 498. A presence of mens rea is essential and that is very much wanting in the instant case. He submitted that in view of the petty quarrel as slated by the accused in their Section 3i3 Cr P. C. statements that ensued due to the behaviour of the deceased the deceased herself lost the temper bolted the kitchen from inside and burnt herself. Therefore element or mens rea is totally absent in the instant case. Mr. Seethepathi further contended that the Tcrueltyt contemplated under Section 498-A IPC is quite different from the cruelty envisaged under the provisions of the Hindu Marriage Act for grant of judicial separation or divorce. The standards of proof of cruelty in civil law are not sufficient to hold an accused guilty of the offence under Section 498. A IPC in criminal law. The proof required to establish cruelty under Section 498-A IPC is one beyond all reasonable doubt. He submitted that the cruelty to constitute the offence under Section 498-A IPC under the Criminal law should be gross and culpable i. e. higher in degree.
(7) THE learned Public Prosecutor on the other hand contended that the prosecution has proved the guilty beyond all reasonable doubt and established the offences under Section 306 and 498-A I. P. C. that as regards cruelty there is no difference for matrimonial causes under the Hindu Marriage Act in Civil Law and under Section 498-AIPC.
(8) THUS before entering into the appreciation of facts the twin questions of law that arise for decision are: whether the present of mens rea to constitute an offence under Section 498-A IPC is an essential requisite; and whether the standards of proof to constitute cruelty under the provisions of the Hindu Marriage Act in Civil law are sufficient to hold a person guilty under Section 498- A I. P. C. in Criminal law.
(9) TO appreciate the first point regarding the question of presence of mens rea it is necessary to have a look at Section 498. A IPC. This provision is newly introduced into the statute by Act No. 46 of 83. It is as under; 495-A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also and liable to fine. Explanation: - For the purpose of
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; 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 propel b r valuable security or is on account of failure by her or any person related to her to meet such demand. T As a general principle existence of guilty intent is an essential ingredient of a crime at common Jaw. The principle is expressed in the maxi. mum-Act us non facit reum nisi mens sit rea. The legislature is no doubt at liberty to creat an offence of strict liability where mens rea is not necessary. When a statute creats an offence the question whether the offence involves the existence of mens rea as an essential element of it or whether the statute dispenses with it and creates strict liability are questions which have. to be answered on a true construction of the statute. Wright. I. in Sherras v. De Rutzen1 expressed: There is a presumption that mens rea an evil intention or knowledge of the wrongfulness of the act is an essential ingredient of every offence but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals and both must be considered. The formulation by Goddard C. J as stated in Brend v. Wood2 is as under: It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind. Wright J. in Sherras v. De Rutzen (1 supra) on an analysis found that there are three classes of cases where the legislature normally enacts absolute prohibition i. e. rules out mens rea as a constituent part of the crime. They are: class of acts which are not criminal in any real sense but are acts which in the public interest are prohibited under a penalty. For example Revenue Statutes Adulteration Act Games Act etc. cases of all public nuisances and class of cases where although the proceeding may be criminal in form they are virtually a summary made of enforcing a civil right.
(10) OFFENCE. in respect of which mens rea is not required to be established are usually of a comparatively minor character and sentences prescribed for them are not of a severe type. It is held by the Supreme Court 10 Nathulal v. State of M. P. 3 that: the provision of a sentence of imprisonment or any other severe penalty may prima facie indicate that mens rea as a constituent part of the crime was not intended to be excluded. Lord Rei in Sweet v. parsley4 held In the relevant section of the statute absence of the word knowinglyt or some such other word expressing a guilty intention and its presence in other sections or in other part of the same section is not in itself conclusive to indicate that a guilty intention is excluded. Lord Reid also held: The Courts however regard it as a fundamental principle that an offence cannot be made out without the existence of mens rea unless from a consideration of the terms of the statute and other relevant circumstances it clearly appears that that must have been the intention of Pa ri ia me ntt
(11) IT is in the light of the above principles Section 498-A IPC has got to be scrutinised to find out whether the legislature has intended to exclude mens rea for purposes of establishing the offence there under. Since mens rea is an essential ingredient of every offence its exclusion can only be deduced if the legislature has either expressly ruled it out or by implication intended its exclusion. A look at the provision T Section 498 a extracted supra reveals that there are DO express terms as such ruling out the existence of mens rea. Therefore it is to be seen whether the legislature bas by implication intended the exclusion. The best acceptable method of testing it is to see whether the offence is comparatively of a minor nature. It is the punishment prescribed for the offence that gives out the-clue in this respect. The punishment prescribed for the offence under Section 498-A [pc is a sentence of imprisonment for a term which may extend to three years and also imposition of fine. So the offence is not of a comparatively minor nature to hold that the legislature has by implication intended to rule out the existence of mens rea. On the other hand the explanation appended to Section 498-A IPC clinches the issue otherwise by giving out the meaning of Tcruelty as any Wilful Conduct which is of such a nature as is likely to drive the woman to commit suicide etc. The adjuctive wilfult qualifying the word conduct contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to cruelty the sole constituent of the offence as such. The term wilful conduct is thus explicit in character and reflects the intention of the legislature that mens rea is an essential ingredient of the offence.
(12) ADVERTING to the standards of Proof for cruelty in civil and criminal law . it is to be noted that cruelty is one of the grounds for grant of relief of judicial separation or divorce under the Hindu Marriage Act. The word cruelty as such is not defined in the Hindu Marriage Act. However Courts have interpreted it from time to time as of two categories viz physical cruelty and mental cruelty. In Rusel v. Rusel5 cruelty was defined as the conduct of such a character a to have caused danger to life limb or health body or mental or to have given rise to a reasonable apprehension of such danger. Therefore the conduct need not practically result in the danger and it is enough if it gives rise to a reasonable apprehension of such a danger. Human relations are so diverse t hat it is rather difficult to Jay down with finality the classes of acts that constitute cruelty. In one case commission of a certain act may result in cruelty while in another non-commission of that act may cause cruelty. Again cruelty may be direct or indirect. At one time it may be intended with to objective while on another occasion it may be quite unintended and with no objective: Thus as has been the majority view in. Gollins v. Gollins6 intention on the part of one spouse to injure the other is not a necessary element of cruelty. Where two spouses are of normal physical and mental health and the conduct of the respondent spouse so considered is so bad that the other should not be called on to endure it cruelty is established; it does not then meter what the respondents state of mind was for it is immaterial whether the respondents conduct was aimed all the other spouse or due to unwarranted in difference attributable perhaps to selfishness or laziness Lord Pearce in Gollins v. Gollins supra said: In the light of the vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable persons point of view after a consideration of any excuse I which the respondent might have in the circumstances the conduct is such that the petitioner ought not to be called on to endure it. The other essential element is that the conduct must be grave and weighty. The decision in Crump v. Crump7 adopts this principle of grave and weighty reason and disapproves of principle of aiming to injure. In this case the wife was having a morbid fear of cancer and for hours carried on the ritual of wiping everything with dettol to guard against cancer germs and forced her husband to join in it. She knew what was doing. Her condition was not one that she could not be controlled by an exercise of will power. It was held that the wife was guilty of cruelty as her husbands health suffered in consequence. Further in the case of Williams v. Williams8 the wife alleged that her husband who was found to be insane was persistently accusing her of adultery. Lord Reid observed: In my Judgment decree should be pronounced against such an abnormal person not because his conduct was aimed at his wife nor because he must be deemed to have foreseen or intended to do the harm he did but simply because the facts are such that after all allowances for his disabilities and for the temperaments of both parties it must be held that the character and gravity of his acts was such as to amount to cruelty. And if that is light for an abnormal person I see no good reason why the same should not apply to an insane person. Thus intention or motive is not considered to be an essential element of matrimonial cruelty in English law. So also in Hindu law neither intention nor motive is considered as an essential element of cruelty. Justice Shamsher Balladur of Punjab High Court in Sayal v. Sarla9 observed that a state of tension existed between the parties. The husband was afraid of living with his wife lest such tension arise again. It was held that wilful intention to injure is not an essential element of cruelty. If acts or conduct result in a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to live with the respondent it is enough; the acts and conduct complained of would amount to cruelty.
(13) JUSTICE Naik of the Bombay High Court in Bhagwat v. Bhagwat10 found the conduct of the husband to be such as to amount to cruelty though there was no intention to be cruel. It was held that insanity should not bar the relief claimed by the wife. Thus schizophrenia is no good defence to the plea of cruelty put forward on behalf of his wife.
(14) ALL this is the background behind the concept of cruelty in civil law with reference to matrimonial causes. However Dastane v. Dastane11 is a remarkable landmark case On the law of matrimonial cruelty. In that case the Supreme Court had the occasion to deal with the standard of proof to be applied in order to judge whether the burden of proving cruelty under the Hindu Marriage Act has been discharged. Chandrachud J. (as he then was) observed that the normal rule which governs civil proceedings is that a List can be said to be established if it is proved by a preponderance of probabilities. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials. A criminal trial involves the liberty of the subject which may not be taken away on the mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable not a vacillating mind cannot find where the preponderance lies a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes the accused. It is wrong to import such considerations in trials of a purdy civil nature. Referring to the misconception regarding the standard of proof in matrimonial cases On account of the loose description of the respondents conduct as a matrimonial offence His Lordship observed; Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom may well be a private affair but the freedom to break a matrimonial tie is not. The society bas a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. After this decision was rendered by the Supreme Court Section 13 (1) of the Hindu and Marriage Act underwent an amendment by the Marriage Laws (Amendment) Act 1976. The contention therefore before a Full Bench of the Bombay High Court was that the intention of the amendment was to bring back the age-old English concept of doctrine of anger and to nullify the effect of the above Supreme Courts decision. The Full Bench in Keshaorao v. Nisha Londhe12 rejected this contention and followed the dictum in Dastanes case (4 supra). A Division Bench of the Calcutta High Court also in Gora Chand Das v. Dipali Das13 followed the above decision in Dastanes case (ii supra) and applied the theory of preponderance of probabilities.
(15) ON an analysis of the cases noted supra it can be called out that (1) the standards of proof of cruelty are higher in degree in criminal law then in civil law under the matrimonial causes (ii) the intention or mens rea on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for matrimonial causes while it is an essential element in criminal law (iii) it is enough if cruelty is proved by preponderance of probabilities in civil law while in criminal trials the conduct of cruelty has to be proved beyond all reasonable doubt (iv) it is immaterial in civil law whether the respondents conduct was aimed at the other spouse or due to unwarranted indifference attributable perhaps to selfishness or laziness while it is very much material in criminal proceedings and (v) for the relief of matrimonial causes in civil law the conduct of the spouse need not necessarily result in danger of life limb or health but a reasonable apprehension of such a danger is enough whereas Section 498-A IPC contemplates such a conduct besides being wilful to result in. the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life limb or health.
(16) IN the background of the above principles I shall now proceed to examine the evidence induced in this case. P. Ws. 1 and 2 the father and brother of the deceased are the material witnesses in this case. P. Ws. 3 4 and 5 are the neighbours of the deceased. P. W. 7 is a panch witness to the inquest. P. W. 8 is the doctor that conducted the alltopsy on the dead body of the deceased. P. W. 9 is the Magistrate that recorded the dying declaration Ex. P-16 of the deceased. P. W. 10 is the Police Officer that recorded the dying declaration Ex. P. 17 of the deceased in the hospital. P. Ws. 11 to 13 are the investigation officers. P. W. 14 the Mandal Revenue Officer held the inquest over the dead-body.
(17) P. W. 1 the father of the deceased deposed that he was working as a tailor. The deceased was given in marriage to A-i and their marriage took place on 4. 15-1984 As per the negotiations P. W. 1 presented to A-i at the time of marriage 12 tulas of gold silver plate of 50 tulas. silver glass of 20 tulas and silver Iota of 50 tulas etc. total worth of Rs. 50 000;t ist days after the marriage the father of A-i died. The accused started blaming the deceased that her steps in their house led to his death. On the occasion of Deepavali the accused asked 2 tulas of gold one Hatari T. V. and clothes. However PW 1 gave them the T V. and mw clothes. Subsequently. the deceased gave birth to a female child. Then again on demand P. W. 1 gave to the accused for the baby 2 tulas of gold and a silver spoon Even after the birth of the child there was no peace of mind to the diseased and the ill-treatment continued. Again on the occasion of the marriage of P. W 2 A-2 demanded T5t tulas of gold. But P. W. 1 gave only Rs. 1116/- to A-i for purchasing new clothes. On 25-5-1986 P. W. 1 invited all the relatives for lunch in connection with the marriage of P. W. 2 A. i and the deceased came for the lunch. P. W. 1 requested them to stay for the dinner also. At about 8-30 p. m. A-i had his dinner along with gents. While dinner was being served to the ladies A-i did not allow the deceased to take it and took her away to their house in an allto. On the next morning (26. 5-1986) P. W. 1 received information that the deceased had burnt herself and was in the Gandhi Hospital. Thereupon P. Ws. 1 2 and the wife of PW. 1 went to the hospital and saw the deceased with burns on her person. She was then conscious and told that she was not able to withstand the day to day abuses and beatings. She also told them that in the previous night while she and A-i were proceeding in the allto A-i pressed her neck and when she protested he slapped her. On reaching the house A-i complained to A-2 that at the time of lunch proper courtesy was not shown and thereupon A-2 abused her The deceased further told P. W. i that on 26-5-i986 at about 4-00 a. m. when she went to the down stairs to bring water and brought it to the first floor A-2 abused her saying if she was talking with her paramour down stair and A-2 snatched the baby from her arms. After so snatching the baby both the accused asked her to die by pushing her into the kitchen. Not being able to withstand the torture she poured on herself kerosene and with a match-stick set fire to herself. This witness was cross-examined at great length. He dallied the suggestion that he did not tell the police regarding the demand during the marriage negotiations for the articles including gold and sliver of the worth of Rs. 50 000/- He could not give the details as to the source from where he got the amount of Rs. 50 000/- and marriage expenses of Rs. 30 000/ -. He could not give the name of the goldsmith that prepared the gold bracelet of 21 tulas. He denied the suggestion that he did not tell the police regarding the demand and giving of 2 tulas of gold chain and silver spoon to the female child in the third month P. W. i further denied the suggestion that he did not tell the police regarding the demand for 5 tulas of gold at the time of marriage of P. W. 2 and his paying only Rs. i ii6/- to A-i for clothes P. W. i admitted that the accused gave the deceased at the time of marriage gold jewellery weighing about io tulas. P. W. i also denied the suggestion that he did not (sic) the means even to spend Rs 5 000/ -. He stated that at the time of marriage the father of A-i was aged about 75 years and was in indifferent health. Since his health was not good the accused wanted to perform the marriage of A-i at the earliest. After the marriage the accused used to permit P. W. i to bring his daughter for festivals. A-i also used to Come as per his convenience. P. W. i admitted that he did not convene any panchayats as a consequence of the complaints made by the deceased. P. W. i stated that they brought the deceased to their house for delivery in the 9th month of her pregnancy and sent her back after the baby completed 2 months. During that period of 4 months P. W. i stated that A-i used to visit and take food in his house. After the birth of the child the accused gave 2 wrist kadas and 2 rings of gold and new clothes for them. He also stated that A-i got prepared a pearl necklace for the deceased by the time of marriage of P. W. 2 P. W. i denied the suggestion that on occasions like the dinner that took place on 25. 5. i986 himself and P. W. i take alcoholic drinks and offer them to the guests and that they had the drinks so on 25. 5. i986 and also insulted A-i due to which A-i wanted to leave their house earlier. He also denied the suggestion that P. W. i did not tell the police that the deceased told him that the accused pushed her into the kitchen and that being unable to bear the torture and harassment she bad poured kerosene on herself and set fire. He further denied the suggestion that the deceased did not tell him anything in the hospital and that on the other hand he tutored her.
(18) P. W. 2 the son of P. W. i deposed almost in similar lines as that of P. W. i. P. W. ii the Police Officer was questioned regarding the statements of P. Ws. land 2 recorded under Section i6i Cr. P. C. He stated that they did not tell him regarding the demand of articles including gold and silver worth about Rs. 50 000/- at the time of marriage nor the demand for gold and silver for the female child born nor the demand for 5 tulas of gold at the time of marriage of P. W. 2. P. W. ii also stated that P. W i as also P. W. 2 did not tell him that the deceased told them that during the previous night A-i pressed her neck and that again after reaching their house A-i and A-2 abused her. P. W. i as also P. W. 2 did not tell P. W. ii that the deceased told them that both the accused pushed her into the kitchen.
(19) THUS the evidence of P. W. 1 and 2 tendered in the Court in regard to different demands by the accused on the respective occasions looks to be an improvement since there were absolutely no such references in their Section 161 Cr. P. C statements as admitted by P. W. 11 Further the dying declaration Ex. P-17 recorded by PW. 10 of the deceased recites that the husband of the deceased (A-i) never forced her to bring money from her parents. The omission of references to several demands in Section i6 Cr. P. C. statements by the very father and brother of the deceased-girl the said references being a very important factum in the case casts any amount of doubt as regards their truth. It must be noted that P. Ws. 1 and 2 are no other then the father and brother of the deceased and the deceased died due to burn injuries. There is therefore every possibility of their being influenced by the grief and suffering on account of the death of the deceased. It is admitted by P. W. 1 that he was earning about Rs. 800/- to Rs. 900/- per month as a tailor. He claims to have spent Rs. Rs. 50 000/- towards gold and silver articles at the time of marriage and Rs. 30 000/- towards marriage expenses. A-i was then earning Rs. 900/- per month as a technician in a private company. P. W. 1 was not able to give the details as to the source through which he raised that amount. He was not able to give out the name of the Goldsmith that prepared the 12 tulas of bracelet. The suggestion though denied was that P. W. 1 did not have the means to spend even Rs. 5 000/ -. Even a poor man who may not have enough to eat may under the background of psychological hatred and spirit of revenge created by the sudden death of his dear or near one make allegations of dowry demand and harassment in consequence thereof. Punjab and Haryana High Court had the occasion in Balbir Singh v. State of Punjab14 to observe as follows in relation to the newly added Sections 304-B 498-A IPC and 113-A and 113-B of the Evidence Act: These salutary provisions cannot be allowed to be misused by the parents or relatives of a psychopath wife who may have chosen to end her life for reasons which may be many other then that of cruel by. The glaring reality cannot be ignored that the ugly trend of false implication with a view to harass and blackmail an innocent spouse and his relatives is fast emerging. It is time to stop this unhealthy trend which results in unnecessary misery and torture to numerous affected personstt.
(20) THE important omissions to make references of demand in their Sections 161 Cr. P. C statements therefore calls for a careful scrutiny of their evidence as regards their corroboration by the other evidence available on record. The other evidence available on record is the dying declarations Exs. P- 16 and P-17. The first declaration in point of time viz. Ex. P-17 is recorded by P. W. 10. it is Ex. P-17 that formed basis for registering the crime and for conducting the investigation. In Ex. P-17 the deceased stated as under: 1 am a resident of Kummari-T guda Sec. bad. I am staying with my husband one daughter aged 11 years (perhaps mistake for money) and mother-in-law. My parents are staying at Malakpet Hyderabad. Yesterday i. e. 25. 5. 1986 I along with my husband and daughter went to Malakpet and attended a function at my parents house. At my parents house my husband informed me that he was hot treated well by my parents and others. He also instructed me to get back to Kummariguda early. There was some delay in coming back to my home. My husband became angry and beat me in allto while returning back to Kummariguda last night. At my home at Kummariguda also my husband and mother-in-law beat me and abused me in filthy language. Today i. e 26-5-1986 morning also my husband and mother-in-law beat me and used vulgar language; due to which I was mentally hurt and disappointed and decided to die. Accordingly to-day morning at 05. 00 urs I went into the kitchen poured kerosene and set fire to myself after bolting inside. My husband broke open the door rescued me and shifted me to Hospital for treatment. Due to this I received mixed burning injuries all over my body. This incident was witnessed by my neighbours. My husband never forced me to bring the money from parents. This statement was recorded at 10. 30 a. m. in the Gandhi Hospital on 265. 1986. P. W. 10 also stated that the parents brother and other relatives were then by the side of the deceased. Later on the same day at about 12. 15 p. m. PW 9 the Magistrate came and recorded the dying declaration Ex. P-16 of the deceased. In Ex. P-16 the deceased stated that since her marriage the accused were abusing her since her father-in-law died within 15 days of the marriage they begun abusing her as the Daridrini Pisachini Munda and were beating her. In Ex. P-17 there is absolutely no such reference to. the abuses and beating earlier to 25. 5. 1986. So much so even in their Section 161 Cr. P. C. statements neither of P. Ws. 1 and 2 stated that the deceased ever complained of abuses and beatings earlier to 25. 5. 1986. The statements under Section 161 Cr. P. C. of P. Ws. 1 and 2 were also recorded in the hospital on 26. 5. 1986 by PW ii. Therefore obviously beatings earlier to 25. 5 1986 were after the references in Ex. P-16 to the abuses and thought and improvements made to the earlier declaration Ex. P. 17 at the instance of P. Ws. 1 and 2 who were admittedly by the side of the deceased right from 8. 30 a. m. On 26. 5. 1986. Therefore as contended by the learned counsel Shri Seethepathi this part of Ex. P-16 covering the statement that right from the date of marriage more particularly consequent upon the death of the father-in- law of the deceased the accused were abusing and beating the deceased cannot be relied upon. Further it is in the evidence of PW 1 itself that even a t the time of marriage of the deceased her father-in-law was aged about 75 years was in indifferent health and therefore the accused wanted to perform the marriage of A-i at the earliest. When viewed in this background the abuses alleged consequent upon the death of the father-in-law within 15 days after the marriage not only appear to be strange but look to be doubtful. I may mention at this juncture that I am justified as per the decision of the Supreme Court in AIR 974 SC 2188 in relying upon a part of Ex. P-17 while not able to rely on the rest for want of corroboration.
(21) HOWEVER as regards the incidents on the night of 25. 5. 1986 and 26. 5. 1986 early morning not only Exs. P-16 and P-17 corroborate each other but the statements recorded under Section 161 Cr. P. C. of P. Ws. 1 and-2 as also their evidence in Court corroborate with the same. The deceased was clearly in stating that A-i wanted her to get back to their house in Kummariguda early on the night of 25. 5. 1986 as he was not treated well at the house of her parents that there was delay in corning back and therefore A-i became angry and beat her in the all to. After reaching the house in the night both A-i and A-2 abused her in filthy language and also beat her. On 26. 5. 1986 early morning also the accused used vulgar language against the deceased and also beat her. Therefore she went into the kitchen bolted the doors inside poured kerosene on herself and set fire. To this extent of the case the evidence of P. Ws. 1 and 2 as also their statements under Section 161 Cr. P. C besides Exs. P-16 and P-17 receive corroboration. Even the hostile witnesses P. Ws. 4 and 5 deposed that they heard some arguments and quarrel in between deceased and the accused on the night of 25. 5. 1986 and also in the early morning hours of 26. 5. 1986 again both the accused abused and beat the deceased.
(22) IT is now to be seen whether these incidents on the night of 25. 5. 1986 and in the early hours of 26. 5. 1986 constitute wilful conduct on the part of the accused so as to drive the deceased to commit the suicide. The term Twilful conductort ist not defined any where in the code. Therefore as contended by Mr. Seethepathi we have to go by the dictionary meaning. The New Webster Encyclopedic Dictionary gives the meaning of the word wilful as Governed by ones own will without yielding to reason; not to be moved from ones notions or inclinations; obstinate; refractory; wayward; done by design; intentional. Equally so are the meanings furnished by the Chambers Twentieth Century Dictionary. Thus wilful means ones own will obstinate or intentional. Mr. Seethepathi contends that when the contends is not intentional or obstinate but is a result of some quarrel or provocation from the deceased that cannot be said to be wilful so as to term it as wilful conduct in order to invoke the operation of cruelty as required by Section 498. A IPC. The learned counsel also sought to rely upon a decision of the Madras High Court in Govindarajulu Chetty In re15 where Subba Rao J. (as he then was) had the occasion to interpret the word wilful used in Section 15 (a) of the Madras General Sales Tax Act. It is observed that the word wilfult has designedly been used to express the mental element to constitute an offence. The word wilful excludes bona fides in respect of a return. An honest and reasonable but mistaken belief in the existence of circumstances which if true would make the act lawful is a good defence. Again the Supreme Court in Om Prakash v. State of U. P. 16 had to deal with the scope of the word wilfully used in Section 405 IPC while making a contra distinction with Section 5 (1) (c) of Prevention of Corruption Act. The Supreme Court held: In Section 405 Penal Code the offender must wilfully another person to misappropriate the property entrusted but in Section 5 (1) (c) if he allows another person to dishonestly or frudulently misappropriate or otherwise convert for his own use any property so entrusted then it is an offence. There is a vast difference between wilfully suffering another and allowing a person to do a particular thing and in our view the word allowst is much wider in its import. Wilfully pre-supposes a conscious action while even by negligence one can allow another to do a thing. The Privy Council in Ardeshir v. Agent Gip Ry. 17 had interpreted the term wilful neglect and held that the expression means that the act is done deliberately and intentionally and not by accident or inadvertence but so that the mind of the person who does it goes with it.
(23) THE Allahabad High Court had also the occasion in Saraswathi Devi v. Dist. Magistrates18 to interpret the word wilful used in Section 405 IPC as deliberate or intentional and not accidental or by in advertence.
(24) THE term wilful misconduct was the subject matter of interpretation in Lewis v. Great Western Railway CO. 19 It is held: Wilful misconduct means misconduct to which the will is a party something opposed to accident or negligence wilful misconduct must be that the person guilty of it should know that mischief will result from it. Thus the word Twilful in the term wilful conduct excludes a happening due to accident or inadvertence while taking within its sold an act which is deliberate or intentional. Accordingly to constitute Twilful conduct it should necessarily involve in itself an intention to do the act a deliberate attitude or that the mind of the personal doing the act should go along with that act. In this background of the interpretation of the term wilful conduct we have to test whether the behaviour of the accused was likely to drive the deceased to commit the suicide. It is admitted by P. W. 1 himself that the marriage took place in 1984 the couple were living together were blessed with a female child the deceased had the delivery at the residence of P. W. 1 she was there for four month during which the accused No. 1 was visiting of and on taking meals and staying in the house of P. W. 1 that at the time of cradle ceremony of the child A- 1 presented some ornaments and new clothes to the parents of the deceased that A-i also got a pearl necklace prepared for the deceased by the time of marriage of P. W. 2. Even according to the evidence of P. W. 1 there were no panchayats held earlier on any alleged complaints of the deceased. Excepting for the two incidents one on the night of 25. 5. i986 and the other in the early hours of 26. 5. 1986 there is no acceptable evidence on record either as regards the demands for gold etc or for harassment. Even with regard to the incident on the night of 25 5 1986 the deceased herself stated that A-i wanted her to leave the house of her parents early as he was not treated well and that there was delay. This delay might have proved the accused to abuse and beat her on the night of 25-5-1986. It is stated in Sec. 313 Cr. PC statement by the 1st accused that P. Ws. 1 2 and others drank liquor on that day and abused heavily. All this might have led to the incident on the night of 25-5- 1986. As regards the incident on 265-1986 it is in the evidence of P. Ws. 4 and 5 that the baby was crying on the up-stairs when the deceased was in the ground floor for fetching water. Therefore as was stated in Section 313 Cr. P. C. statement the accused might have admonished her for the delay in bringing the water out of their anxiety for the baby and this obviously seems to have led to the abuses and beatings. Even after the deceased getting into the kitchen and burning herself the moment they scented the smoke A-i himself even as per Exs. P-16 and P-17 broke open the doors and rescued the deceased. No doubt the accused is stated to have died of the burn injuries. But the question is whether this would call for a finding that the conduct of the accused was wilful and was such that it was likely to drive the deceased to commit the suicide so as to attract Section 498-A IPC. It is at this stage necessary to notice the observations of the Supreme Court in AIR 1976 S. C. 250 as under: The Courts cannot allow an emotional and sentimental feeling to come into the judicial pronouncements. Once sentimental and emotional feelings are allowed to enter the judicial mind the Judge is bound to view the evidence with a bias and in that case the conclusion may also be biased resulting in some cases-in great injustice. The cases have to be decided strictly on evidence how so ever cruel or horrifying the crime may be. All possible chances of innocent man being convicted have to be ruled out. TI I may incidentally state that the parties belong to a lower-middle class and P. W. 1 was a tailor. As per their social conditions prevalent in these parts the abuses viz. Daridrini Pisachini Munda etc. even if true cannot be said to be unusual. So much so the beatings followed by such abuses are not extraordinary feature in their families. Therefore I hold that the above incidents on the night of 25 5. 1986 and in the early hours of 26. 5. 1986 cannot be construed to be constituting wilful conduct on the part of the accused so as to drive the deceased to commit the suicide. In these circumstances the incident of suicide was never contemplated by the accused and was purely accidental and accordingly the conduct of the accused cannot be termed to be wilful so as to bring it within the four-folds of cruelty. Equally for the above reasoning the accused cannot be said to have had the necessary mens rea to do the act which would amount to wilful conduct so as to constitute an offence under Section 498-A IPC.
(25) IN view of my finding that the offence does not involve cruelty so as to bring it within the coverage of Section 498-A IPC it is in fact not necessary to make a reference to Section 113-A of Evidence Act so as to attract the consequential charge under Section 306 IPC. However since it was argued I am inclined to make a brief discussion on the question. Section 113-A of the Evidence Act was introduced recently by Act 46 of 1983 and it is as under: 113-A-Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman bad been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. Explanation: - For the purpose of this section cruelty shall have the same meaning as in Section 498. A of the Indian Penal Code. An analysis of the above provision reveals that to attract Section 113-A the suicide must have been committed within seven years from the date of her marriage and that her husband or his relatives must have subjected her to cruelty. When these two factors were found to be present then having regard to all other circumstances of the case the section directs a presumption that the husband or his relatives had abetted the suicide. The explanation to this provision makes it clear that cruelty contemplated by Section 113-A of the Evidence Act means the same as provided by Section 498-A IPC. Once cruelty envisaged by Section 498-A IPC is proved (1) it will not be necessary to prove the same again so as to satisfy Sec. 113-A (ii) the legislature has presumed cruelty as the cause of death (iii) the offence under section 306 IPC need not be proved independently even if there is no mens rea or anticipation of the act of suicide (iv) it is not necessary for the prosecution to prove that the suicide was abetted by the accused (v) the presumption of abetment will be available without there being evidence of abetment as Sec. 107 of the Penal Code; and this would be done without there being my non-obstante clause. However it is to be born in mind that the presumption is to be drawn having regard to all the other circumstances of the case. Thus when once the offence under Section 498-A IPC is established the Court shall draw a presumption having regard to all the other circumstances of the case that the suicide was abetted by the accused found guilty under Section 498-A IPC. So before drawing the presumption the Court shall have to take into consideration all the other circumstances of the case. Since in the instant case the very offence under Section 498-A IPC is not proved there is no need for me to go into the other circumstances of the case for purposes of involving the accused under Section 306 IPC.
(26) ACCORDINGLY I set aside the convictions under Sections 498-A and 306 IPC and the sentence imposed thereof against the accused. However as has been found the accused are liable for the offence of beating the deceased on the night of 25-5-1986 and the early hours of 26-5-1986. Accordingly I convict them under Section 323 IPC and sentence each of them to suffer rigorous imprisonment for three months. The fine amount if any paid shall be refunded to them. The appeal is accordingly disposed of by modifying the convictions and sentences.
Appeal allowed accordingly.
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