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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.588 OF 2010
KAMLESH SATYAPRAKASH AGARWAL
V/s.
THE STATE OF MAHARASHTRA  
CORAM : ABHAY M. THIPSAY, J.
DATE : 16th JUNE 2015.
Citation:2016 ALLMR(CRI)4187 Bom

1 This appeal is directed against the judgment and order
dated 31st August 2010 passed by the Additional Sessions Judge,
Greater Bombay, in Sessions Case No.700 of 2009 convicting the
appellant, who was the accused no.1 in the said case, of offences
punishable  under  Sections 498A,  304B and 306 of  the  Indian

Penal Code (IPC).  The learned Additional Sessions Judge imposed
a sentence of Rigorous Imprisonment for three years and a fine of
Rs.1,000/­ with respect to the offence punishable under Section
498A IPC, a sentence of Rigorous Imprisonment for seven years
with respect to the offence punishable under Section 304B IPC,
and a sentence of Rigorous Imprisonment for seven years and a
fine of Rs.1,000/­ with respect to the offence punishable under
Section 306 IPC.  The learned Additional Sessions Judge directed
that the sentences would run concurrently.  Being aggrieved by the
said judgment and order of conviction and the sentence imposed
upon him, the appellant has approached this court by filing the
present appeal.
2 The   appellant's   father   –   Satyaprakash   Girdharilal
Agarwal,   mother   –   Nilima   Girdharilal   Agarwal   and   brother   –
Yogesh Satyaprakash Agarwal were also accused in the said case
as accused nos.2, 3 and 4 respectively.   The learned Additional
Sessions Judge, however, found them not guilty and acquitted
them.  The appellant and the other accused were also charged of

having committed the offences punishable under Sections 323,
504, 506 of IPC read with Section 34 thereof, but all of them,
including the appellant, were acquitted of the said offences.
3 The   prosecution   case,   as   put   forth   before   the   trial
court, be stated thus :
That,   Kamini   –   daughter   of   Kailash   Narayan   Agarwal   –
married the appellant on 24th  November 2008 at Lalitpur. The
appellant was then working as an Assistant Scientist at Bhabha
Atomic Research Center.   He, along with his father, mother and
brother – the said other accused, was residing in the residential
accommodation   provided   to   him   at   Anushakti   Nagar.     After
marriage, Kamini came to stay there.   Kailash Narayan Agarwal
(PW2) – father of Kamini – had given an amount of Rs.One Lac
and gold ornaments worth Rs.75,000/­ as a gift at the time of
marriage.     He   had   also   borne   the   expenses   incurred   on   the
marriage   ceremony.     That,   the   accused   persons   called   Kailash
Narayan in January 2009 at Mumbai and demanded an amount of
Rs.5 Lac from him.   Additionally, a demand was made that he

should purchase a house or land at Lalitpur or Jhansi, and give it
to the accused persons.  At that time, Kamini had complained to
Kailash Narayan that her  in­laws were not treating her properly,
whereupon, Kailash Narayan had told her and the appellant that
they should ask the in­laws of Kamini for giving Kailash Narayan
some time.  That, Kamini from time to time used to telephone to
Kailash Narayan and ask him to give the amount of Rs.5 Lac and
house or land as demanded by her in­laws at an early date, and
that, because the needful was not being done, the appellant and
the other accused used to abuse and beat her.   Kailash Narayan
had then told her that he would arrange for the necessary money
and that everything would be alright.  That, in March 2009, the
appellant had gone to Lalitpur along with Kamini for the holi
festival, but instead of going to the house of Kailash Narayan, he
went to his native place at Jhansi, by dropping Kamini at Lalitpur
Railway Station.  Kamini came to the house from the station alone
and she told Kailash Narayan and other members of her parental
family that she was being harassed in her matrimonial house.
Kamini also informed Kailash Narayan and others that she was

carrying, but her husband and in­laws were forcing her to carry
out abortion.  Kamini stayed with her parents for 2 to 3 days and
then the appellant asked her to be dropped at Jhansi.   Kailash
Narayan, his wife, then went to Jhansi along with Kamini to drop
her   there,   where   the   appellant   and   the   other   accused   were
present.  Again a demand of Rs.5 Lac and of a house or land was
made, and Kailash Narayan was threatened that if the demand
would not be met, Kamini would have to terminate the pregnancy.
Kailash Narayan again asked them to wait for sometime, stating
that he did not have that much money at that time, and that, they
should not insist on termination of pregnancy of Kamini.   The
appellant and the other accused were not in a mood to consider
the pleas of Kailash Narayan.  Kailash Narayan and his wife then
came back to Lalitpur.  Kamini stayed at Jhansi and later went to
Mumbai.   Thereafter also, Kamini had, from time to time, told
Kailash   Narayan   and   his   wife   telephonically   about   the   cruel
treatment that was being given to her by the appellant and other
accused.

That, on 30th April 2009, Kamini telephoned her mother at
Lalitpur and told her that the harassment, that was being caused
to her by her in­laws for the money and for the house or land, was
increased.   That, they were abusing and beating her, and that,
they were forcing her to terminate the pregnancy. Kamini was
crying for about half an hour on telephone and this fact was
reported to Kailash Narayan by his wife.  
On 2nd  May 2009, Kamini again telephoned her mother at
Lalitpur and again informed her that the harassment that was
being caused to Kamini for the money and the house and / or
land,   had   increased,   and   that,   the   in­laws   were   abusing   and
beating   her   and   also   insisting   that   she   should   terminate   the
pregnancy.     Thereafter,   the   appellant   also   telephoned   Kamini's
mother   and   demanded   the   money.     That,   the   appellant   also
threatened that if the money would not be paid, Kamini would be
beaten by him and the other accused, and that, her pregnancy would
be terminated.   On the same day, the appellant had telephoned

Kamini's brother Pankaj also and had given the same threat.  At
about 10.00 p.m. on the same day, Kamini had again telephoned
and   informed   that   the   appellant   and   the   other   accused   were
abusing and ill­treating her.
4 That,   on   3rd  May   2009,   at   about   2.00   a.m.,   the
neighbour of the appellant telephoned to Kailash Narayan on his
mobile   telephone   informing   him   that   Kamini   had   committed
suicide, and that, she had been declared dead on admission in the
hospital.   Kailash Narayan did not believe this, and therefore,
insisted   on   speaking   to   the   appellant   on   telephone,   but   the
appellant confirmed that Kamini had indeed committed suicide.
Thereafter, Kailash Narayan and Pankaj Agarwal (PW3) came to
Mumbai. On the next day i.e. on 4th May 2009, the FIR, alleging
the aforesaid facts, came to be lodged.  
5 The   prosecution   examined   six   witnesses   during   the
trial, two of whom – Kailash Narayan (PW2) and Pankaj Agarwal
(PW3) – have already been referred to earlier.  One Divakar Sing

Munda ­neighbour of the appellant – was examined as the first
witness for the prosecution (PW1), and one Arun Kumar Jain –
neighbour   of   Kailash   Narayan   –   was   examined   as   the   fourth
witness for the prosecution (PW4).   Gajanan Mhatre, Assistant
Police   Inspector,   attached   to   Trombay   Police   Station   at   the
material time, is the fifth witness for the prosecution (PW5), while
Arvind Mane, also Assistant Police Inspector, attached to Trombay
Police Station at the material time, is the sixth witness for the
prosecution   (PW6).     Gajanan   Mhatre   had   recorded   the   FIR.
Arvind   Mane   had   carried   out   further   investigation   and   had
submitted the charge­sheet against the appellant and others.
6 I have heard Mr.R.V.Gupta, the learned counsel for the
appellant.  I have heard Mrs.M.R.Tidke, the learned APP for the
State.  I have carefully gone through the record and proceedings. I
have been taken through the entire proceedings adduced during
the trial, as also the impugned judgment.

7 It is contended by Mr.R.V.Gupta, the learned counsel
for the appellant, that the judgment of conviction as delivered by
the   learned   Additional   Sessions   Judge   is   not   proper   or   in
accordance with law. It is submitted that the prosecution evidence
was   not   at   all   satisfactory,   and   that,   the   evidence   of   Kailash
Narayan and Pankaj Agarwal – which was the only evidence to
establish   the   alleged   cruelty   –   suffered   from   a   number   of
infirmities.  It is also contended that though the evidence against
all the accused was the same, the learned Additional Sessions
Judge has acquitted the other accused but has held the appellant
guilty, only because the appellant happened to be the husband of
the   deceased   Kamini.   According   to   Mr.Gupta,   there   was   no
distinction between the case of the other accused, who have been
acquitted, and that of the appellant; and that, if the case against
the other accused was held as 'not proved', the case against the
appellant also ought to have been held as 'not proved.'   It is
submitted that, why Kamini committed suicide was not clear to
the appellant also, but, that she committed suicide because of the
cruel treatment – allegedly given to her by the appellant and the

other accused – was not true, in as much as, she was not treated
with cruelty at all.
8 Mrs.Tidke,   the   learned   APP,   on   the   other   hand,
contended   that   the   evidence   of   Kailash   Narayan   and   Pankaj
Agarwal was consistent and it proved the allegations of cruelty.  It
is submitted that since Kamini committed suicide, it supported the
theory that she was being treated with cruelty.  It is also submitted
that the distinction drawn between the case of the other accused
and that of the appellant by the learned Additional Sessions Judge
was proper and justified.
9 That, Kamini committed suicide is not in dispute.  The
evidence of Divakar Munda (PW1) shows that at about 1.15 a.m.
on 3rd May 2009, Smt.Nilima Girdharilal Agarwal (accused no.3) –
mother of the appellant – knocked the door of his room, which is
situated adjacent to the room of the appellant.  This witness was
sleeping at that time and he woke up because of the knock given
on the door.  He was told by accused no.3 (Smt.Nilima Girdharilal

Agarwal) that appellant's wife had been to bathroom and was not
opening the door.  Divakar and one Vijay Kumar, who was also in
his   room,   went   to   the   room   of   the   appellant   and   the   other
accused, and found that the bathroom was closed from inside.
There was no response, and thereafter, the appellant and Vijay
broke opened the door of the bathroom.   It was noticed that
Kamini had hanged herself to the shower pipe in the bathroom, by a
dupatta.   The knot was untied.   Kamini was brought to the front
room.     Security   guard   was   called.     Kamini   was   taken   to   BARC
Hospital, where the doctor, on examining her, opined her to be dead.
10 Now, the evidence of this witness establishes that the
door of the bathroom, in which the dead body of Kamini was found
hanging, had been locked from inside.  It, therefore, indicates that
Kamini's death was suicidal.  As a matter of fact, it is nobody's case
that the death of Kamini was homicidal.  Even Kailash Narayan or
Pankar Agarwal have not expressed any such suspicion, either before
the police, or while giving evidence before this court.   Therefore,
that Kamini indeed committed suicide is proved – rather, it is not a
matter which is in dispute.

11 The points that need determination are (i) whether the
appellant had subjected Kamini to cruelty as contemplated under
Section 498A of IPC, and (ii) whether the commission of suicide by
Kamini, was abetted by the appellant.
12 Kailash Narayan and Pankaj, both, have stated about
the cruel treatment meted out to Kamini.   According to Kailash
Narayan, the appellant demanded an amount of Rs.5 Lac from him
in the month of December 2008 through Kamini.   He also stated
that he transferred the amount of Rs.50,000/­ in the account of
Kamini.   Kailash Narayan then spoke about his having gone to
Mumbai in the third week of January 2009 and there the appellant
and the other accused having demanded an amount of Rs.5 Lac
from him for purchasing land or house. He then stated that he
showed his inability to pay such huge amount and returned back
home.  According to him, he used to receive telephone calls from
the accused persons who used to demand money and who used to
give threats to cause harassment to Kamini.  He then stated about
the incident that had taken place in the month of March 2009

when   the   appellant   and   Kamini   had   travelled   together   from
Mumbai, but appellant had dropped Kamini on the platform of
Lalitpur   station   and   he   himself   proceeded   to   Jhansi.     This   is
suggested to be an act of cruelty.  When Kailash Narayan was later
called at Jhansi, and when he went there along with his wife, the
appellant and the other accused who were present there, again
demanded an amount of Rs.5 Lac from him and also asked him to
convince Kamini, who was pregnant, to cause abortion.  According
to   him,   he,   thereafter,   convinced   the   appellant   and   the   other
accused that abortion should not be done, and that, he was unable
to pay the huge amount demanded by the appellant and the other
accused.     He,   then,   returned   to   Lalitpur   with   his   wife,   and
thereafter,   the   appellant   and   the   other   accused   also   came   to
Mumbai.     According   to   him,   thereafter,   he   used   to   receive
telephone   calls   from   the  appellant   and   his   family   members
demanding   the   amount   and  threatening   to   cause   the   death   of
Kamini, if she would fail to pay the amount, and cause abortion.
Now, this is, clearly, an improvement, in as much as, there is no
disclosure of such an important fact in the FIR.  

13 Kailash   Narayan   also   stated   that   in   April   2009   he
received a missed call on his mobile phone and then he called on
the calling number and spoke to Kamini.  That, Kamini was alone
in the house at that time and she told him on telephone that the
'accused   persons'   were   demanding   money,   and   that,   if   their
demands would not be fulfilled, they would kill Kamini.  Now, this
is  clearly  an  improvement,  in  as  much  as,  no  such  version  is
reflected in the FIR lodged by Kailash Narayan.  This omission has
been   duly   proved.     Apart   from   the   fact   that   this   is   an
improvement,   the   story   itself   is   somewhat   absurd.     If   indeed
Kailash Narayan had been receiving threats from the appellant
and the other accused that they would  cause death of Kamini, if
she failed to get the amount, and cause abortion; and if Kamini
had also stated so to him, then Kailash Narayan would not have
kept   quite,   and   would   have  done  something   for  the  safety   of
Kamini.  In any case, after learning about her unnatural death, he
would   have   immediately   suspected   that   Kamini   had   been
murdered as per the threats given by the appellant.  When Kamini
also had allegedly told him that the accused were threatening to

cause her death, he would not have accepted that Kamini had
committed suicide, but he would have certainly made a claim, or
atleast expressed a suspicion that Kamini had been murdered by
the appellant.  However, as aforesaid, no such suspicion was felt
or expressed by him at any stage. 
14 In   the   cross­examination,   Kailash   Narayan   claimed
that   he   had   stated   before   the   police   'that   he   used   to   receive
telephone calls from the accused persons, and that, the accused
persons used to demand money and used to give him threats to
cause harassment to Kamini.'  He also stated 'that, that he received
a missed call in the month of April 2009, and that, thereafter, he
had made a call on that number and had a talk with Kamini, and
that, at that time Kamini had told him that the accused persons
were   demanding   money,   and   that,   if   their   demands   were   not
fulfilled, they would cause her death', was stated by him to the
police.   However, the omission to state so has been brought on
record in the evidence of Gajanan Mhatre (PW5), who recorded
the FIR.

15 Coming   to   the   evidence   of   Pankaj   Agarwal   (PW3)   –
brother of Kamini, it must be clearly understood that he does not
stay with Kailash Narayan.   He stays at Pilani, Rajasthan.   He has
narrated   the   incident said to have taken place in March 2009,
where Kamini had been dropped at platform of Lalitpur Railway
Station   and   the   appellant   had   proceeded   therefrom   to   Jhansi.
According   to   Pankaj,   he   was   at   Lalitpur   at   that   time,   and   that,
Kamini told him that the accused were demanding an amount of
Rs.5 Lac and also a plot at Lalitpur or Jhansi, and that, the accused
persons used to beat her, harass her and ill­treat her.  According to
him, Kamini had also told him that the accused were insisting that
she should terminate her pregnancy.   According to Pankaj, he used
to receive telephone calls from Kamini, wherein, she used to tell him
about the demands from the accused persons and the ill­treatment
given to her.  That, on 2nd May 2009, he received a telephone call
from Kamini at 3.00 p.m. and she told him that the accused were
demanding  cash of Rs.5 Lac and also a plot at Lalitpur or Jhansi,
and were also insisting on the termination of her pregnancy.  Pankaj
further stated that he received telephone call from the appellant on

nd May 2009 wherein the appellant repeated the same demands,
which   fact   was   communicated   by   him   to   his   father   Kailash
Narayan.  In the cross examination, it was revealed that he is a well
educated person, being M.Tech degree holder, having passed his
examination   from   NIT   Kurukshetra.    A   number  of  photographs
were   shown   to   have   this   witness   in   the   cross   examination,
apparently for showing that when Kamini and appellant had gone
to Lalitpur for the Holi festival, they were in a joyous mood.  From
his evidence, it is revealed that Kamini had passed her M.Sc. and
B.Ed. Examination from Gwalior, and that, before the marriage she
used  to  stay  at  Gwalior,  as  a  paying  guest.    She  used to   visit
Lalitpur occasionally during this period.  Pankaj had made several
improvements, and the omission on his part to state some of the
significant things to the police when his statement was recorded,
has   been   brought   on   record   in   the   evidence   of   A.P.I.   Gajanan
Mhatre (PW5), who had recorded the statement of Pankaj in the
course of investigation.   Thus, Pankaj had not stated about his
receiving telephone calls from Kamini and Kamini telling him about
the demand from the accused persons and the harassment etc.

16 The evidence of Kailash Narayan and Pankaj Agarwal
is sought to be supported by the evidence of Arun Kumar, who is a
neighbour of Kailash Narayan.  His evidence is to the effect that
when Kamini had been to Lalitpur in March 2009, she had been to
his house, and that, at that time, she had told that the accused
persons were demanding cash amount, plot etc. from her parents.
In the cross­examination it was revealed that the statement of this
witness was recorded about five months after the incident.   It
appears that in the month of October 2009 he was brought to
Mumbai by Kailash Narayan and taken to the police station, where
his statement was recorded.  Not much turns on the evidence of
this witness.  
17 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.

19 Interestingly,   the   learned   Additional   Sessions   Judge
has also not believed this aspect of the matter.   It is, therefore,
that,   she   has   acquitted   the   other   accused.     She   categorically
observed that the evidence of Kailash Narayan and Pankaj was not
specific in respect of the other accused, and that, there were only
vague allegations against them.  Some of the observations may be
reproduced here :
“It is true that there is no specific allegation
against the parents of accused no.1.”
(paragraph 32)
“However, the evidence of PW-02 and PW-03
is not specific in respect of accused nos.2, 3
and 4. There are vague allegations against
them. Whatever allegations are made about
the demand or asking the deceased for causing
abortion is as stated by PW-02 and PW-03
from accused no.1.” (paragraph 38)
39. The evidence on record clearly goes to
show that there is no specific allegation or
evidence to prove that accused nos.2, 3 and 4

have demanded money or any other amount
from the father of the deceased. There is also
no specific evidence to show that at any point
of time, they have subjected the deceased to
cruelty. No specific incident has been alleged
or brought in evidence. Therefore, the
evidence of PW-02 and PW-03 is only in
respect of accused no.1 except the incident at
Zhansi that when PW-02 went in house of
accused they have demanded Rs.5 lakhs.
Except that sentence, there is no evidence
against accused nos.2, 3 and 4 either in
respect of the demand of money or in respect
of any harassment mental or physical against
the deceased. Therefore, the accused nos.2, 3
and 4 are entitled to the acquittal.
20 The learned Judge, however, was of the view that the
allegations   made   against  the   appellant   were   specific.   It   is  not
possible to agree with her in this regard.  Infact, the allegations
that have been levelled by Kailash Narayan and Pankaj are against
all the accused and if they were vague and general with respect to
the other accused, that was so, even with respect to the appellant.

A reading of the evidence does not show that any specific act
constituting   cruelty,  not   attributed   to   the   other   accused,   was
attributed to the appellant, by the witnesses.  The cruelty consists
of making a demand for Rs.5 Lac and on insisting that Kamini
should terminate her pregnancy.  This demand and this insistence,
has   been,   (if   the   witnesses   are   to   be   believed)   from   all   the
accused, and not only the appellant.  
21 I   have,  therefore,   carefully  examined  the  impugned
judgment to see what made the learned Additional Sessions Judge
to  hold  that so far as the evidence  against the appellant was
concerned, it was not vague and general, but was specific.  I do
not find that the learned Additional Sessions Judge has discussed
in her judgment as to what was the precise evidence against the
appellant,   which   was   not   available   against   the   other   accused.
While observing that the allegations against the other accused
were vague and general, the learned Additional Sessions Judge
has not specified what were the specific allegations levelled by the
witnesses against the appellant.  The learned Additional Sessions

Judge has attempted to draw a distinction between the case of the
appellant   and   the  other   accused   on   the  basis   that  'insisting   a
pregnant   woman   to   carry   abortion   would   amount   to   causing
mental cruelty to her.'  However, as per the prosecution case and
the evidence adduced in support thereof, such insistence was from
all the accused and not only from the appellant.   The learned
Additional Sessions Judge appears to have been influenced by the
fact that Kamini had indeed committed suicide and apparently
was of the view that such suicide must have been caused because
of   the  cruel  treatment  given   to  her.     Though  the  evidence  of
cruelty was held to be vague as against the other accused, the
same evidence apparently has been accepted to hold the appellant
guilty, only on the basis that the appellant was the husband of the
deceased.    Beyond this, there does not seem to be any distinction
between the case of the appellant and that of the other accused,
who have been acquitted.  
22 In this context, an important and rather interesting
aspect of the matter may be discussed, and that is, whether cruelty

can  be   inferred   only  from   the   fact   of  suicide.     In  other  words,
whether 'when the fact of suicide is proved, and when cruelty is
alleged, whether it should be held as proved merely from the fact
of   suicide,   though   the   evidence   with   respect   to   the   cruelty   is
vague, general and unreliable' is the question.  It is not uncommon
to seek the inference of cruelty to be drawn from the proof of the
suicide, and it is not uncommon to hear an argument as to 'why
otherwise she would commit suicide.'  I had an occasion to discuss
this aspect in some other case wherein I had expressed my view as
follows :
“14. Though, the evidence of cruelty would be
relevant in determining whether the death could
be suicidal and the evidence of death being
suicidal would be relevant in judging the
existence or extent of cruelty, these aspects
would not be conclusive. It is because there
are a number of factors, which may lead to a
person deciding to take his own life. Causes
of suicide is a matter of study for the
psychologists. Experience shows that the people
who suffer severe and great miseries and
sorrows do not end their lives, but people,

who are required to undergo comparatively
minor sufferings do, at times, commit suicide.
The level of tolerance of various persons
differs and further, the causes of depression,
which leads to suicide may be very many.
Therefore, the conclusion of cruelty cannot be
drawn merely from the fact that suicide has in
fact been committed, and conversely, the
conclusion that the death was suicidal also can
not be drawn, merely from the fact that some
cruelty was meted out to the deceased. Though
these aspects may be relevant, they certainly
would not be conclusive.
23 In this case, indeed, that Kamini committed suicide, is
satisfactorily established, but the allegations with respect to the
cruelty   are   not   satisfactorily   established.     Therefore,   simply
because suicide has, infact, been committed, cruelty cannot be
inferred.  The argument 'why otherwise she would commit suicide'
as is often advanced, is not very scientific.  This could be replied in
a number of ways by referring to the opinions of the psychologists
and by referring to the scientific data that would be available, but

a proper reply thereto is found in a decision rendered by Kerala
High Court in the case of      State of Kerala vs. Mohanan Pillai1
 .
The Kerala High Court, in that case, dealt such an argument by
making the following observations :
“Vagaries of human mind cannot be fathomed
with precision, and one may act on sudden
impulses, and suicidal proclivities cannot be
explained in many cases. If the accused failed
to explain as to what else would have
prompted his wife to end her life in a jiffy, it
is no premise to presume that she would have
chosen to adopt the extreme step as she was
subjected to any humiliation or illtreatment by
her husband.”
24 It is true that the appellant and the other accused have
chosen to remain silent and have not advanced their version of the
happenings.  Though in a criminal trial, the burden of proving its
case – and that too beyond reasonable doubt – is wholly on the
prosecution, and that, the accused persons need not say anything
in their defence, when suspicious circumstances are brought on
1 1991(1) KLJ 359

record, which could be explained by the accused persons, the
absence of any explanation by the accused might add strength to
the   prosecution   case.     Infact,   in   view   of   the   presumptions
contained in Section 113A and 113B of the IPC, in a given case, it
might be quite dangerous and risky for the accused persons not to
offer any explanation about what might have led the deceased to
commit suicide, or what had happened on the fateful day.   The
silence of the accused persons in such cases, will strengthen the
suspicion against them.  However, that by itself would not be fatal.
In   this   case,   it   appears   to   be   the   prosecution   case   that   the
appellant   had   admitted   before   PW1   Divakar   that   there   was   a
quarrel  between   the   victim   and   the   appellant  for  some  trivial
matter on the fateful day, but no such evidence was adduced.  The
appellant and the other accused simply remained silent on that
aspect.   However, even proceeding on the basis that  something
must  have happened on that day, it cannot be presumed that, 'that
something' itself amounted to cruelty and constituted abetment to
commit  suicide, when otherwise, there is no satisfactory evidence
of cruelty.

25 To sum up, in the first place, the evidence of Kailash
Narayan and Pankaj, as also the evidence of Arun (PW4) is not of
a quality, so as to place reliance   thereon.   Corroboration could
have   been   obtained   with   respect   to   the   evidence   of   Kailash
Narayan and Pankaj with respect to the telephone contacts, but no
such   corroboration   was   obtained.     The   unreliability   of   the
evidence of Kailash Narayan is more evident because of his claim
that the appellant and the accused persons had threatened him
that they would kill Kamini, but that, though Kamini died an
unnatural death, immediately thereafter, he did not suspect that
she had been murdered.   When the evidence of cruelty was not
satisfactory, cruelty cannot be inferred only because suicide had,
infact,  been committed.  Since there was nothing to show that it
was the cruelty meted out to Kamini that led to her suicide, the
appellant and the accused persons cannot be said to have abetted
the commission of suicide by her.  Lastly, and quite significantly,
when the evidence was disbelieved with respect to the accused
nos.2, 3 and 4, the same evidence could not have been relied upon
with respect to the appellant.

26 The conclusion that the appellant was guilty of the
offences   in   question,   as   arrived   at   by   the   learned   Additional
Sessions Judge, is not in accordance with law.   This was a case
where the appellant, like the other accused, should have been
acquitted.  
27 The Appeal is allowed.
The impugned judgment and order of conviction and 
the  sentences  imposed  upon  the  appellant  are  set 
aside.
The appellant is acquitted.
His bail bonds are discharged.
Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J.)

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