It has been held by this Court in C. Veerudu v. State of A.P. (1988) 2 Andh LT 171 : 1989 Cri LJ NOC 52 that even in respect of the offence under Section 498-A, IPC, the necessary mens rea is required, and it cannot be said by any stretch of imaginaiton that the ground mentioned in the Divorce petition that the wife was suffering from Cancer, if ultimately considered to be a cruelty for a moment, the necessary mens rea is lacking, which is necessary ingredient, so as to bring home the offence under Section 498-A, IPC. This approach of the learned Additional Sessions Judge is totally wrong and has been oblivious of the very provisions of Section 498-A, IPC, and the explanation appended to the said section. The word 'Cruelty' has been sought to be illustrated and thus may be extracted hereunder for brevity and better understanding of the matter and also for appreciation of the points germane for consideration :-
Section 498-A IPC
Explanation : For the purpose of this Section "Cruelty" means :-
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; 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.
It is obvious from the perusal of the explanation given under Section 498-A, IPC that cruelty means a wilful conduct of such a nature and of such a magnitude so as to drive a woman to commit suicide or to cause grave injury or danger to life or limb or health of the woman. Seeking divorce on the ground that she was suffering from virulent disease like Cancer, it cannot be said by any stretch of imagination that it would lead to such a situation where P.W. 1 would prepare to commit suicide. The explanation further says that the harassment of woman shall be with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. This has to be considered with reference to the legal principles enunciated by this Court in the judgment referred to (1989 Cri LJ NOC 52) (supra) of this Court that the element of mens rea shall be there. After having considered the explanation appended to Section 498-A, IPC, it is manifest that the finding of the learned IV Additional Metropolitan Sessions Judge that the grounds mentioned by the revision petitioner in seeking divorce which turned out to be baseless by themselves amounts to cruelty are not well founded and cannot be countenanced.
Andhra High Court
Andhra High Court
Ch. Narender Reddy vs State Of A.P. on 16 June, 2000
Equivalent citations: 2000 (2) ALD Cri 408,
2000 (2) ALD Cri 821
1. The revision petitioner assails the conviction and sentence passed against him by the learned XXII Metropolitan Magistrate, Hyderabad in C.C. No. 41 of 1995 convicting him for the offence under Section 498-A of the Indian Penal Code and sentencing him to suffer rigorous Imprisonment for two years and further sentencing him to pay a fine of Rs. l000/- and in default to suffer Simple Imprisonment for Six months and the Judgment of the IV Additional Metropolitan Sessions Judge, Hyderabad dated 26-6-1998 in Cri. Appeal No. 561 of 1996 in having confirmed the conviction and sentence passed by the Trial Court.
2. The factual matrix germane for appreciating the two points raised by the learned counsel for the revision petitioner may be stated thus :
The De facto Complainant P.W. 1 in this case was married to the revision petitioner on 21-2-1985. She was closely related to the petitioner being the niece. After the marriage, both of them lived together till the month of June, 1985. Thereafter, P.W. 1 said to have been complaining some throat problem. She was taken to a Doctor and ultimately she was operated upon in the month of June, 1985 by removing a part of the Vocal Cord on account of which her voice was effected to some extent. It is stated that the revision petitioner and other accused in this case suspected her of suffering from Cancer, and therefore, they started ill-treating her by keeping her and her utensils separately and ultimately she was driven out of the house in the month of October, 1985. It is further stated that the revision petitioner married Accused No. 4 again earlier. The revision petitioner got issued a legal notice on 19-2-1986 demanding her consent for divorce to which P.W. 1 got issued reply notice on 27-2-1986 through her Counsel. Thereafter, the revision petitioner filed O.P. No. 125 of 1986 seeking dissolution of marriage on the premise that P.W. 1 was suffering from Virulent disease viz. Cancer. After enquiry, the said O.P. was dismissed on 28-7-1990. Then P.W. 1 filed the complaint before the Court on 12-3-1990, which was forwarded to the police under Section 156(3), Cr.P.C. for investigation. The police after conducting investigation, filed the Charge-sheet against the revision petitioner and three others alleging the offences punishable under Section 498-A, IPC, Sections 4 and 6 of the Dowry Prohibition Act and under Section 494, IPC. The trial was conducted and after the conclusion of the trial, the trial Court acquitted A2 and A3 of all the charges. The revision petitioner who is A l before the trial Court was acquitted of other charges under the Dowry Prohibition Act and for the offence under Section 494, IPC also. However, he was convicted only for the alleged offence under Section 498-A, IPC alone and was sentenced as aforesaid. Having been aggrieved by the same, he filed an appeal and the learned IV Additional Metropolitan Sessions Judge, Hyderabad by his Judgment dated 26-6-1998 confirmed the conviction and sentence passed by the trial Court which is now being impugned in the present revision petition.
3. The first contention of the learned counsel for the petitioner is that the evidence of PWs 1 to 3 shall have to be appreciated with reference to the other attendant circumstances and probability factor, and absolutely there has been no whisper about the legal cruelty meted out to P.W. 1 either in the reply notice given by her dated 27-2-1986 or in her deposition given in O.P. No. 125 of 1986, till the present complaint was filed on 12-3-1990 and, therefore, the evidence of P.W. 1 shall have to be appreciated in this background. The learned counsel for the revision petitioner further contends that the complaint having been filed on 12-3-1990 more than four years obviously after the alleged cruelty and so it is clearly time-barred and the initial cognizance taken by the trial Court itself is wrong.
4. This revision will not detain me any longer, since the same can be disposed of on the two legal questions raised by the learned counsel. A perusal of the evidence of P.W. 1 clearly shows that she admitted that the facts mentioned in her reply notice dated 27-2-1986 got issued by her through her counsel and the deposition of P.W. 1 given in O.P. No. 125 of 1986 on the file of the Second Additional Judge, City Civil Court, are true and correct. Although P.W. 1 stated that the revision petitioner harassed her and demanded dowry, there has been no such complaint on her part at any point of time till she filed the complaint on 12-3-1990 before the Court. It is obvious that for the first time, the allegation of legal cruelty has been made in her complaint on 12-3-1990. This circumstance which is inherent and emerges out of the record, shall not be lost sight of in appreciating the evidence of P.W.
1. If her evidence, is scrutinised with reference to the attendant circumstances, that she was meted out with all cruelty by demanding dowry in her evidence given as P.W. 1 in C.C. No. 41 of 1995 loses its efficacy and it will not inspire the confidence of the Court. The testimony of any witness shall not be considered without scrutinising the evidence with reference to the surrounding circumstances and the probability factor. The facts clearly disclose that the revision petitioner suspected P.W. 1 of suffering from throat Cancer and in his perception, it was a virulent disease and, therefore, he wanted to perhaps marry again thinking that she would not survive for any longer. That ignited the whole trouble and led to the civil and criminal proceedings between the parties inter se. These aspects can be clearly culled out from the various proceedings between the parties including the one for divorce. On account of these attendant circumstances, and the probability factor, the evidence of P.W. 1 cannot be taken into consideration. For the selfsame reasons, the evidence of other two witnesses cannot also be taken into consideration and it cannot be said that the evidence of P.W. 1 receives corroboration from the other two witnesses.
5. The finding of the learned IV Additional Metropolitan Sessions Judge, Hyderabad that the allegations raised by the revision petitioner seeking divorce when ultimately turned to be baseless resulting in dismissal of the divorce petition, ultimately amount to cruelty cannot for a moment be accepted. The main allegation made by the revision petitioner while seeking divorce is that P.W. 1 was suffering from virulent disease like Cancer. It is unheard of in legal parlance that such a ground raised by the husband seeking divorce against the wife amounts to legal cruelty. She was suspected of throat trouble and she was operated upon. Except the perceptional difference, it cannot be said that it is baseless. We can understand that if an allegation of unchastity is attributed to the wife, it might amount to cruelty. Above all, that can be a best ground for seeking maintenance, but it cannot be considered that it is that cruelty, as is envisaged to be proved under Section 498-A of the Indian Penal Code. It has been held by this Court in C. Veerudu v. State of A.P. (1988) 2 Andh LT 171 : 1989 Cri LJ NOC 52 that even in respect of the offence under Section 498-A, IPC, the necessary mens rea is required, and it cannot be said by any stretch of imaginaiton that the ground mentioned in the Divorce petition that the wife was suffering from Cancer, if ultimately considered to be a cruelty for a moment, the necessary mens rea is lacking, which is necessary ingredient, so as to bring home the offence under Section 498-A, IPC. This approach of the learned Additional Sessions Judge is totally wrong and has been oblivious of the very provisions of Section 498-A, IPC, and the explanation appended to the said section. The word 'Cruelty' has been sought to be illustrated and thus may be extracted hereunder for brevity and better understanding of the matter and also for appreciation of the points germane for consideration :-
Section 498-A IPC
Explanation : For the purpose of this Section "Cruelty" means :-
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; 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.
It is obvious from the perusal of the explanation given under Section 498-A, IPC that cruelty means a wilful conduct of such a nature and of such a magnitude so as to drive a woman to commit suicide or to cause grave injury or danger to life or limb or health of the woman. Seeking divorce on the ground that she was suffering from virulent disease like Cancer, it cannot be said by any stretch of imagination that it would lead to such a situation where P.W. 1 would prepare to commit suicide. The explanation further says that the harassment of woman shall be with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. This has to be considered with reference to the legal principles enunciated by this Court in the judgment referred to (1989 Cri LJ NOC 52) (supra) of this Court that the element of mens rea shall be there. After having considered the explanation appended to Section 498-A, IPC, it is manifest that the finding of the learned IV Additional Metropolitan Sessions Judge that the grounds mentioned by the revision petitioner in seeking divorce which turned out to be baseless by themselves amounts to cruelty are not well founded and cannot be countenanced.
6. On the point of limitation raised, the punishment provided for the offence under Section 498-A, IPC is three years, as can be seen from the section. Now under clause (c), Sub-section (2) of Section 468, Cr.P.C. the period of limitation provided for taking cognizance of the offence punishable with imprisonment for a term not exceeding three years is three years. Even on the own showing of the prosecution in this case, the initial cognizance was taken by the Court long after the filing of the complaint on 12-3-1990 before the Court. That complaint was forwarded obviously to the police under Section 156(3), Cr.P.C. for investigation. The cognizance was taken by the Court upon perusing the averments made in the charge sheet and the material connected therewith by issuing necessary process against the accused. That is the actual date on which the cognizance was taken, but not the date on which the complaint was presented before the Court on 12-3-1990. So there is a gap of four years in between the alleged offence and the date of cognizance, and therefore, the case is clearly barred by limitation in view of the provision under clause (c), Sub-section (2) of Section 468 of the Cr.P.C. The learned IV Additional Metropolitan Sessions Judge was of the view that because the punishment for the other offence under Section 494, IPC is more than three years, and no limitation has been prescribed under the Statute for the said offence and as that offence was not made out and the offence under Section 498-A, IPC has been ultimately made out, there is no question of any limitation in this case, is again a misconception of the clear legal position. The offence under Section 494, IPC is a distinct offence. The offence under Section 498-A, IPC and 494, IPC are not cognate offences and, therefore, one cannot be considered to be a major offence and the other to be a minor offence and if ultimately a major offence is not made out and the minor offence is proved, at the conclusion of the trial, the legal position existed earlier was that the person can be convicted for the minor offence and the limitation can be condoned by invoking the provisions under Section 473, Cr.P.C. in the interest of justice. But the Apex Court in a very recent judgment in State of Himachal Pradesh v. Tara Dutta has laid down the legal position thus :-
Sub-section (3) of Section 468 which was added by the Code of Criminal Procedure (Amendment) Act, 1978, provides that in relation to offences which may be tried together, the period of limitation shall be determined with reference to the offence which is punishable with the more or most severe punishment. The language of Sub-section (3) of Section 468 makes it imperative that the limitation provided for taking cognizance in Section 468 is in respect of the offence charged and not in respect of offence finally proved.
7. But even according to the provisions of Section 473, Cr.P.C. without hearing both the parties on the point, exercising discretion under Section 473, Cr.P.C. is another illegality that has been resorted to in this case by the learned Sessions Judge. It is not a case where the hearing on the question of limitation has been postponed at the time when the initial cognizance was taken by the Court, nor it is a case where both the parties have been heard on that point at the time of the conclusion of the trial. This approach of the learned Judge to this legal aspect again is not correct. When once the provisions of Section 473, Cr.P.C. cannot be invoked unilaterally as aforesaid, the offence under Section 498-A of the Indian Penal Code has been clearly barred in view of the provisions of clause (c) of Sub-section (2) of Section 468, Cr.P.C. The initial cognizance by the Court itself is wrong and vitiates the entire subsequent trial and the resultant conviction and sentence passed against the accused. On both the grounds, the conviction and sentence passed against the revision petitioner-accused are bad and liable to be set aside. '
8. In the result, the Revision Case is allowed. The conviction and sentence passed against the revision petitioner for the offence under Section 498-A of the Indian Penal Code are hereby set aside. The Bail Bonds of the revision petitioner shall stand cancelled.
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