Friday, 28 October 2016

How to appreciate evidence of relatives of wife recorded after her death for offence U/S 498A of IPC?

While appreciating the evidence of Kailash Narayan
and Pankaj, it must be kept in mind that such evidence by the
close relatives of the victim, needs to be examined with great
caution, as it would be easy for them to make such accusation
after the death of the victim.  The claim that the victim used to tell
them about the harassment, ill­treatment and cruelty meted out to

her, after the death of the victim, when the victim would not be
available for challenging the same or confronting her with such
evidence,   is   quite   easy   to   be   made.     While   it   cannot   even   be
suggested that, the witnesses being closely related to the deceased
their evidence ought not to be relied upon, the possible dangers in
such evidence must be kept in mind.   As observed earlier, such
evidence can easily be concocted on the death and the tragic end
of that the victim.  Moreover, in such tragic cases, the near ones of
the victim, genuinely start believing that her husband or the inlaws
are the cause of the death, and therefore, there would be a
tendency to modify the facts suitably to see that some how the
husband and the in­laws are booked.  In the instant case, applying
the well settled parameters for judging the reliability of evidence,
it   is   impossible   to   come   to   a   conclusion   that   the   evidence   of
Kailash Narayan and / or Pankaj can be safely accepted.  There are
very obvious and material improvements in their evidence, but,
what is further important to note is that, the allegations of cruelty,
as reflected from their evidence, are vague and general.  It must
be understood that cruelty contemplated by Section 498A of the

IPC is different from the concept of cruelty that is recognized in
matrimonial matters.  The explanation appended to Section 498A
of IPC is important in this context.  It makes it clear that cruelty
means '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.'  The words 'wilful conduct' and 'likely' are significant and
indicate that the wilful conduct must be of such a nature, as would
be likely to drive a woman to commit suicide or to cause grave
injury to her life, limb or health.  Whether the conduct was of such
a gravity, can be inferred only from the fact of suicide,  shall be
discussed later, at an appropriate place, but that there are no
incidents of cruelty reflected in the evidence of Kailash Narayan or
Pankaj, even if the other weaknesses in their evidence are ignored,
is significant and needs to be mentioned here itself.  Interestingly,
there is only one specific incident with respect to the act of cruelty
and   that   is   'dropping   of   Kamini   by   the   appellant   at   Lalitpur
railway station platform (instead of dropping her at her parents'
house) and his proceeding further to his parents' house at Jhansi.

It   appears   that   the   appellant   and   Kamini   had   travelled   from
Mumbai together, and that, the appellant wanted to go to Jhansi
and Kamini wanted to go to Lalitpur.  It also appears that Lalitpur
falls between Mumbai and Jhansi, and therefore, the appellant
dropped Kamini at Lalitpur railway station platform, and then
went ahead by the same train to Jhansi.  This incident, which is
the only specific incident of cruelty, cannot be said to establish
cruelty as contemplated under Section 498A of the IPC.  Infact, no
importance to this aspect has been given by the learned Additional
Sessions Judge also – and rightly so – in my opinion.  The learned
Additional Sessions Judge, in that regard, noted that Kamini was
well educated, and that, she was well acquainted with the locality,
and that, her parental house was hardly at a distance of fifteen
minutes from station, and that, as such, no wrong was committed
by   the   appellant   by   leaving   her   at   Lalitpur   railway   station
platform, and proceeding to Jhansi.  
18 In my opinion, the evidence of cruelty, as adduced by
the prosecution, was unreliable  and consisted only of vague and

general assertions of Kailash Narayan and Pankaj that the deceased
used to tell  them  so.   What the deceased used to tell them, as
claimed by these witnesses, is also of a vague and general nature.
Moreover,   as   aforesaid,   it   is   difficult   to   rely   on   the   evidence   of
Kailash Narayan and Pankaj, when it is seen that they have made a
number of improvements, and that, in their anxiety to implicate the
accused persons, Kailash Narayan had even gone to the extent of
saying that just before the death of Kamini, the accused persons had
threatened him that they would be killing her and that Kamini had
also told Kailash Narayan on telephone that she would be killed.  As
aforesaid, interestingly, inspite of this, even after learning about the
unnatural   death   of   Kamini,   neither   Kailash   Narayan   nor   Pankaj
suspected the same to be homicidal.   The telephonic contacts or
atleast the crucial one, as per the claim of this witnesses, could have
been easily established during the investigation, but admittedly, such
evidence was not obtained and adduced before the court.   It is,
therefore, not possible to accept that, that Kamini was being treated
with   cruelty   by   the   appellant   and   the   other   accused,   was
satisfactorily established.
DATE : 16th JUNE 2015.
Citation:2016 ALLMR(CRI)4187 Bom
Print Page

Whether offence of S 498A of IPC is made out against husband if wife has resided with him for six days?

 Admittedly, the relations between P.W.-1 and her husband, the respondent, were strained. The two had lived together for hardly six days and it is doubtful if during such a short period of time, cruelty as contemplated under Section 498-A I.P.C. could really be said to be proved just because certain acts, which were not to the liking of the wife, were performed by the husband. In order to bring home to the accused his guilt for an offence punishable under Section 498-A,I.P.C., it is necessary that various acts of commission and omission, which cause suffering to the wife and which are on account of illegal demand of valuable articles or property are performed in a consistent manner. A person can ordinarily be said to be a victim of crime of cruelty underSection 498-A I.P.C. only when she can be perceived as tortured, tormented and traumatized by the tormentor or her apeal husband. Being tortured, tormented and traumatized are the kind of feelings that generally develop over a period of time due to constant or consistently nasty behaviour of the other and would not be aroused by some stray acts of offensive nature in a short period of time. Sometimes, what is seen by a wife as rude and even cruel behaviour of her husband could be nothing more than a teething trouble of a new relationship about to blossom.
Although, there is no thumb rule to say that; 'X' period of time must have gone by before a finding of cruelty could be recorded as it depends on several factors such as sensitivity of the woman, upbringing of spouses, nature and severity of acts complained of, frequency and consistency of ill-treatment and so on and so forth.
But, courts would be generally on their guards, as a rule of caution, in judging the nature of relationship in a short span of time.
14. In this case, P.W.-1 Shivpriya and her husband, the respondent, lived as husband and wife for just six days and even before they could understand each other and give time to each other for adjusting themselves to the trials and travails of marital life, the two had parted ways and on a bitter note. In such a short period of time, it is quite difficult to judge an act which is perceived by the bride as torture-some or degrading as cruelty as defined under Section 498-A of the Indian Penal Code. In many a marriages, the voyage of the spouses may not be smooth sailing.
Spouses go through troubled waters, even feel frustrated and fed up with each other and yet, many a spouses mellow down over a period of time, start understanding each other better and ultimately reconcile their differences to lead a happy marital life.
It is said that time is the best healer of all troubles and pains. So, unless some time is given to a relationship, especially a marital one, to settle down; adjudging the relationship as good or bad would be dangerous. In a given case it may be too premature to call the alleged offensive acts of the husband as causing cruelty to the wife, unless the facts are such that they show nasty and revolting behaviour of the husband. Present case does not appear to be falling in the said category of extremely bad behaviour of the respondent as there is no reliable evidence available on record to convince the Court of such harassment or cruelty on the part of respondent as contemplated under Section 498-AI.P.C. What appears to me in this case is the problem of incompatibility between the two leading to stating of exaggerated facts. From this view point also, in the instant case, I find that it would be too unsafe or risky to rely on the evidence of afore-stated prosecution witnesses to record a finding of guilt as against the appellant for the offences of cruelty against the complainant and his having unnatural sex with the complainant.
Bombay High Court
The State Of Maharashtra vs Pushkraj Narshinh Godge Patil on 12 June, 2015
Bench: S.B. Shukre
Citation:2016 ALLMR(CRI)3725
Print Page

Whether proceeding under DV Act can be initiated against lady with whom husband is having extra marital relation?

 The short submission of Shri Patil, learned counsel,
is in Domestic Violence case as also in Criminal Complaint
Case, the complainant – non­applicant No. 2 has joined her

husband, his parents as party respondents.  Along with them,
the present applicants who are not relatives of husband have
also been impleaded.   He points out that as per allegations,
applicant No. 4 is alleged to be having extra marital relations
with her husband and applicant Nos. 1 & 2 are her parents.
Applicant No. 3 is her married sister while applicant No. 4 is
her   married   brother.     He   also   states   that   non­applicant
nowhere pleads that her husband has been staying with the
applicants and she has been staying with her husband as a part
of their family.
The provisions of Section 498­A of Indian Penal

Code   as   also   the   provisions   of   Protection   of   Women   from
Domestic Violence Act, 2005, contemplate action against the
husband and his relatives.  It is obvious that the applicants do
not fall in that category.
8. In this situation, cognizance of Domestic Violence
Case No. 254 of 2014 or then Criminal Complaint Case No.
120 of 2015 and FIR registered vide Crime No. 125 of 2015 as
against the applicants is unsustainable.  Therefore, we quash
and set aside the cognizance already taken to that extent.
 Maroti s/o Domaji Ramteke,

 State of Maharashtra

       FEBRUARY  15, 2016.
Citation:2016 ALLMR(CRI) 4232
Print Page

Whether non examination of principal is fatal to case if agent was examined who was having knowledge of facts of case?

The appellant contended that none of the three vendors (defendants 1, 2 and 3) stepped into the witness box to give evidence and therefore an  adverse inference should be drawn against them that the case put forth by them is incorrect. Reliance was also placed on the decisions of this court in Vidhyadhar v. Mankikrao & Anr. (1999) 3 SCC 573 and Balasaheb Dayandeo Naik (Dead) through LRs. and Ors. v. Appasaheb Dattatraya Pawar (2008 ) 4 SCC 464 in that behalf. There were four defendants in the suit. Defendants 1,2 and 3, who were the owners of the lands were respectively the wife, son and daughter of the fourth defendant. It is an admitted position that the entire transaction was done on behalf of the defendants 1,2 and 3 by defendant No.4 who alone had complete knowledge of the entire transaction. Fourth defendant has given evidence on behalf of all the other defendants. When one of the defendants who is conversant with the facts has given evidence, it is not necessary for the other defendants to be examined as witnesses to duplicate the evidence.
The legal position as to who should give evidence in regard to the matters involving personal knowledge have been laid down by this court in Man Kaur (dead) by LRS. v. Hartar Singh Sangha (2010) 10 SCC 512. This court has held that where the entire transaction has been conducted through a particular agent or representative, the principal has to examine that agent to prove the transaction; and that where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by the agent, necessarily the agent  alone can give evidence in regard to the transaction. This court further observed:
"Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
Therefore the evidence of the fourth defendant (examined as DW2) was sufficient to put forth the case of the defendants and there was no need to examine the other three defendants who did not have full or complete knowledge of the transactions. In the circumstances we find no merit in the contention that the suits ought to have been decreed, as defendants 1,2 and 3 did not step into the witness box.
Supreme Court of India
Saradamani Kandappan vs S. Rajalakshmi & Ors on 4 July, 2011
Bench: R.V. Raveendran, K.S. Panicker Radhakrishnan
Citation:AIR 2011 SC 3234:(2011)12 SCC18 
Read full judgment here:click here      
Print Page