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Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: 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 be liable to fine. 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.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 
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A Case on outraging the modesty of a woman & Rape.

A Case on outraging the modesty of a woman & Rape. 
 
Supreme Court of India
Raju Pandurang Mahale vs State Of Maharashtra And Anr. on 11 February, 2004
Equivalent citations: AIR 2004 SC 1677, 2004 CriLJ 1441, JT 2004 (2) SC 425
Author: A Pasayat
Bench: D Raju, A Pasayat

JUDGMENT

Arijit Pasayat, J.

1. Appellant calls in question legality of the conviction recorded in terms of Sections 342 and 354 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) by the Trial Court, and affirmed in appeal by the impugned judgment by learned Single Judge of the Bombay High Court, Aurangabad Bench. Two appeals were disposed of by a common judgment. Criminal Appeal No. 3 of 98 was filed by the present appellant along with one Pankaj, while the connected Criminal Appeal No. 50/98 was filed by Raju @ Rajesh S. Kopekar.

2. Four accused persons faced trial. The appellants before the High Court were present appellant Raju Pandurang Mahale (A-1), Gautam (A-2), Pankaj (A-3) and Rajesh S. Kopekar (A-4). A-1 to A-4 were convicted for offences punishable under Sections 376(2)(g) IPC and each of A-1, A-3 and A-4 was sentenced to suffer RI for 10 years and to pay fine of Rs. 500/- with default stipulation; but Gautam (A-2) was awarded 2 years RI. Additionally, A-1, A-2 and A-4 were found guilty for offences punishable under Sections 342 read with Section 34 IPC. Gautam (A-2) did not prefer any appeal questioning his conviction. A-3 alone was convicted for offence punishable under Section 292 IPC, while A-4 was convicted for offence punishable under Section 323 IPC. A-1, A-3 and A-4 were convicted for offences punishable under Sections 354 read withe Section 34 IPC. For offences relatable to Section 342 read with Section 34 IPC, six months RI and for the offence punishable under Section 354 IPC one year custodial sentence was imposed.

3. The High Court by the impugned judgment set aside the conviction and sentences of A-1 and A-3 for the offences punishable under Section 376(2)(g). So far as the appeal filed by A-4 is concerned, he was convicted for the offence punishable under Section 376 IPC, though his conviction in terms of Section 376(2)(g) was set aside. The conviction of A-1 and A-2 and A-4 for the offences punishable under Sections 342 read with Section 34 IPC, and the conviction of A-1, A-3 and A-4 for the offences punishable under Section 354 read with Section 34 IPC was also maintained with the sentence imposed. Conviction of A-4 in terms of Section 323 IPC was maintained. In essence so far as the appellant is concerned, his conviction for the offence punishable under Section 342 read with Section 34 IPC and Section 354 read with Section 34 IPC; was maintained as noted above.

4. Prosecution version as unfolded during trial is as follows:

The alleged occurrence took place on 12^th and 13^th January, 1996. Husband of the prosecutrix (PW-5), at the relevant time, was undergoing imprisonment for life after his conviction in a murder case. The prosecutrix, along with a daughter of two years age, was residing with her sister (PW-6). Accused No. 4 – Raju @ Rajesh s/o Sudakar Kopekar and accused No. 1 – Raju s/o Pandurang Mahale were friends of the husband of prosecutrix. It was for this reason that the prosecutrix was known to them. Both these accused persons were on visiting terms with the prosecutrix and her husband used to go to their house. Raju @ Rajesh S. Kopekar (accused No. 4) was working in Railways and was required to go out of station sometimes. The prosecutrix, on request, by him, used to stay with his wife during his absence in connection with his duties.

5. The incident occurred during the midnight of 12.1.1996 and 13.1.1996. At about 9.30 p.m. of 12.1.1996, appellant Raju Pandurang Mahale came to the house of the prosecutrix and told her that Raju @ Rajesh S. Kopekar (accused No. 4) had gone for night duty, and that his wife was alone at home. She was also told that wife of Raju (A-4) had called her to stay with her. The prosecutrix was reluctant to go to the house of Raju (A-4). She, however, relented on persistence of appellant Raju (A-1). She agreed to go, also for the reason that earlier, appellant Raju had taken her daughter and she had been left at the house of Raju @ Rajesh S. Kopekar (A-4) by appellant Raju.

6. On reaching the house of Raju @ Rajesh S. Kopekar (A-4), the prosecutrix found her daughter sleeping on a cot in the house. She, however, did not find the wife of Raju @ Rajesh S. Kopekar (A-4) at home. On the contrary, Raju @ Rajesh S. Kopekar (A-4), who was reported to have gone on duty, was very much present there. On questioning by prosecutrix, as to why she had been called by sending misleading information, Raju @ Rajesh S. Kopekar (A-4) stated that he had wanted her to come to his house for company. Gautam Suresh Shejwal (A-2), a friend of Raju @ Rajesh S. Kopekar (A-4) was also sitting in the house. He went outside the house and closed the door from outside, forcing the prosecutrix to remain in the house with Raju @ Rajesh S. Kopekar (A-4) along with appellant Raju s/o Pandurang Mahale and her two years old daughter who was sleeping on the cot. Appellant Raju s/o Pandurang Mahale brought liquor bottle and liquor was consumed by him and Raju @ Rajesh S. Kopekar (A-4). Thereafter, both these accused persons assaulted the prosecutrix and forced her to consume liquor. Soon she experienced giddiness and lost her balance. She was raped, thereafter, by Raju @ Rajesh S. Kopekar (A-4). When the prosecutrix regained consciousness, she found Raju @ Rajesh S. Kopekar (A-4) was lying on her person and Pankaj Ganpat Avhad (A-3) was in the room. She alleged that Pankaj Ganpat Avhad had taken her nude photographs. In the morning, the prosecutrix was threatened not to disclose the incident to anybody and was asked to go home. The prosecutrix went to her sister’s house and narrated incident to her sister (PW-6). Thereafter, they went to the police station and lodged the report. Investigation was undertaken and charge sheet filed.

7. The Trial Court and the High Court accepted the evidence of the victim prosecutrix to be cogent and taking note of the additional factors brought on record made the conviction and awarded the sentence as aforenoted.

8. In support of the appeal, learned counsel for the appellant submitted that the offences under Section 342 and Section 354 IPC were not made out, so far as he is concerned. It was submitted that the role attributed to the appellant does not in any manner establish existence of ingredients necessary to constitute offence punishable under Sections 342 and 354 IPC. He pointed out that the locking of the door from outside according to prosecution was done by A-2 in the house of A-4. The appellant had not poured liquor to the mouth of the prosecutrix as victim herself said that she was forcibly made to drink liquor by A-4. The High Court proceeded on the basis, as if, the appellant and A-4 forced her to take liquor.

9. In response, learned counsel for the State submitted that evidence has been analysed by both the Trial Court and the High Court in great detail. The role attributed to the appellant by the victim by the victim is very clear and in any event Section 34 was pressed into service to show that he shared the common intention regarding commission of the alleged offences. That being so, the conviction and the sentence as awarded do not need any interference.

10. The evidence on record clearly establishes that the appellant brought the victim to the house of A-4 on false pretext and made it compulsory for her to go by earlier taking away her daughter to the house of A-4. She was confined with A-4 and the appellant,when room was locked from outside by A-2. It was the appellant who brought the liquor which the victim was made to drink. She was forcibly disrobed by A-4 in the presence of the appellant. Thereafter A-4 raped her and A-2 took her nude photographs while she was being sexually ravished by A-4. Section 342 provides the punishment for wrongful confinement. It is established by the evidence on record that the victim was taken to A-4’s place by the appellant in the night of date of occurrence and she was able to come out of the confinement on the next day. Wrongful confinement is defined in Section 340. As observed by this Court Shyam Lal Sharma and Anr. v. The State of Madhya Pradesh , where a person is wrongfully restrained in such a manner as to prevent that person from proceeding beyond certain circumscribed limits, he is wrongfully confined within the meaning of this Section. The essential ingredients of the offence “wrongful confinement” are that the accused should have wrongfully confined the complainant and such restraint was to prevent the complainant from proceeding beyond certain circumscribed limits beyond which he/she has a right to proceed. The factual scenario clearly establishes commission by the appellant as well of the offence punishable under Section 342 IPC.

11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.

(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.

12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows:

“Decorous in manner and conduct; not forward or lowe; Shame-fast, Scrupulously chast.”

13. Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct.” It is the reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P

817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passion upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

14. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh a question

arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. .

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminine decency. It is further to be noted that Section 34 has been rightly pressed into service in the case to fasten guilt on the accused-appellant, for the active assistance he rendered and the role played by him, at all times sharing the common intention with A-4 and A-2 as well, till they completed effectively the crime of which the others were also found guilty.

16. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab , the

existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

17. The Section does not say “the common intention of all” nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh . Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

18. Looked at from any angle the conclusions of the Trial Court and the High Court in convicting the appellant do not suffer from any infirmity to warrant interference in exercise of the powers under Article 136 of the Constitution of India, 1950. The sentences imposed by no stretch of imagination can be said to be on the higher side. On the contrary, backgrounds facts of the case show that lenient sentences were imposed. The appeal fails being without merit.

Family Law

Supreme Court convicting man for wife’s murder – circumstantial evidence.

In this interesting case – the Court convicted the man for murdering his wife, on the basis of following evidence – the chain of circumstantial evidence :-
i) Motive (Suspected infidelity on part of wife – strained relations on that count)
ii) Last Seen together.
iii) Unnatural subsequent conduct.
iv) killed wife at hotel – court matched his signatures on visitor’s book and vakalatnama in appeal and also matched in court u/s 73. 
Supreme Court of India
Ajit Savant Majagavi vs State Of Karnataka on 14 August, 1997
Author: S S Ahmad
Bench: M K Mukherjee, S S Ahmad

PETITIONER:

AJIT SAVANT MAJAGAVI

Vs.

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 14/08/1997

BENCH:

M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mr. Justice M.K. Mukherjee

Hon’ble Mr. Justice S. Saghir Ahmad

Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered : J U D G M E N T

S. Saghir Ahmad, J.

Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us.

2. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE.

3. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked “I am glad that I am not a man; for then I should have to marry a woman”, there was wit in it. When Shakespeare wrote, “Age cannot wither her; nor custom stale; Her infinite variety”, there again was wit. Notwithstanding that these writers have cried hoarse for respect for “Woman”, notwithstanding that Schiller said “Honour Women! They entwine and weave heavenly rose in our earthly life.” and notwithstanding that Mahabharat mentioned her as the source of salvation, the crime against “woman” continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against “Female” is committed even when the child is in the womb as the “female” foetus is often destroyed to prevent the birth of female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.

5. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector.

6. The appellant was married to a young woman, by name, Padmavathi @ Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellant’s mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship; in this case with one Gundu Badasad.

7. On becoming pregnant, Padmavathi came back to her father’s house of performance of certain ceremonies connected with the pregnancy and continued to stay there till she delivered a mala child. The information of birth of the child was conveyed to the appellant and his parents but nobody, not even the appellant, came to see Padmavathi or the child although, in normal course, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this cold-shouldering was the precursor of the evils that were to befall Padmavathi.

8. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law (P.W. 8) and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they could not get the “Bus” and, therefore, they had come to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to “Ashoka Lodge” in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathi’s life. At about 12.00 Noon, the appellant came to the reception counter of “Ashoka Lodge” and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the “Lodge”, with child in his lap, never to come back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathi’s father.

9. The police was informed of the matter in due course which visited the “Lodge” and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died not because of cardiac arrest, but on account of asphyxia. Her death was homicidal.

10. The police arrested, challenged and prosecuted the appellant, who was found “not guilty” by the trial court but the High Court, on appeal by the State, reversed the verdict and convicted the appellant u/s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us.

11. Learned counsel for the appellant has contended that the High Court should not have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for “substantial and compelling reasons”. It is contended that since substantive and compelling reason have not been indicated, the judgment of the High Court is liable to be set aside and that of the trial court is to be restored. It is also contended that even if all circumstance appearing against the appellant are taken into consideration, the cumulative effect of those circumstance does not lead to the irresistible conclusion that the appellant was guilty.

12. Section 378 of the Code of Criminal Procedure 1973 which corresponds to Section 417 of the old Code provides for appeal in case of acquittal.

13. There was quite a controversy among the Court with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup & Ors. v. King Emperor, L.R. 61 Indian Appeals 398 = AIR 1934 P.C. 227(2). This decision was considered inSanwat Singh vs. State of Rajasthan, (1961) 3 SCR 120, in which the legal position was explained by this Court as under :-

(1) The evidence upon which the

order of acquittal was passed by

the trial court can reviewed,

reappreciated and reappraised by

the Appellate Court.

(2) The principle laid down by the

Privy Council in Sheo Swarup & ors.

v. King Emperor, L.R.. 61 Indian

Appeals 398 (supra); provide

correct guidelines for the

Appellate Court while disposing of

the appeal against the order of

acquittal.

(3) The words “substantial and

compelling reasons”, “good and

sufficiently cogent reasons” or

“strong reasons” used by this court

in its various judgments do not

have the effect of curtailing power

of the High Court to reconsider,

review or scrutinise the entire

evidence on record so as to come to

its own conclusions in deciding the

appeal against an order of

acquittal.

14. As a matter of fact, the power of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the trial court to pass the order of acquittal and to record its own reasons for not agreeing with the trial court.

15. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 – (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial court. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. (See also : Sohrab vs. State of Madhya Pradesh, (1973) 1 SCR 472 = (1972) 3 SCC 751 = AIR 1972 SC 2020; Ediga Sanjnna vs. State of Andhra Pradesh, (1976) 2 SCC 210; Satbir Singh & Anr. vs. State of Punjab, (1977) 3 SCR 195 = (1977) 2 SCC 263; Chandrakanta Devnath vs. State of Tripura, (1986) 1 SCC 549 = 1986 Cr.L.J. 809; G.B. Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135; Awadesh & Anr. vs. State of Madhya Pradesh, (1988) 3 SCR 513 = (1988) 2 SCC 557; Anokh Singh vs. State of Punjab, (1992) 1 (Supp) SCC 426; Gajanan Amrut Gaykwad & Ors. vs. State of Maharashtra, (1995) 3 (Supp) SCC 607; Ram Kumar vs. State of Haryana, AIR 1995 SC 280; Betal Singh vs. State of Madhya Pradesh, (1996) 4 SCC 203).

16. This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order

of acquittal, the High Court

possesses all the powers, and

nothing less than the powers, it

possesses while hearing an appeal

against an order of conviction.

(2) The High Court has the power to

reconsider the whole issue,

reappraise the evidence and come to

its own conclusion and finding in

place of the findings recorded by

the trial court, if the said

findings are against the weight of

the evidence on record, or in other

words, perverse.

(3) Before reversing the findings

of acquittal, the High Court has to

consider each ground on which the

order of acquittal was based and to

record its own reason for not

accepting those grounds and not

subscribing to the view expressed

by the trial court that the accused

is entitled to acquittal.

(4) In reversing the finding of

acquittal, the High Court has to

keep in view the fact that the

presumption of innocence is still

available in favour of the accused

and the same stands fortified and

strengthened by the order of

acquittal passed in his favour by

the trial court.

(5) If the High Court, on a fresh

scrutiny and reappraisal of the

evidence and other material on

record, is of the opinion that

there is another view which can be

reasonably taken, then the view

which favours the accused should be

adopted.

(6) The High Court has also to keep

in mind that the trial court had

the advantage of looking at the

demeanour of witnesses and

observing their conduct in the

Court especially in the witness-

box.

(7) The High Court has also to keep

in mind that even at that stage,

the accused was entitled to benefit

of doubt. The doubt should be such

as a reasonable person would

honestly and conscientiously

entertain as to the guilt of the

accused.

17. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal.

18. Before taking up this task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans”, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed.

19. It has been consistently laid down by this Court that were a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. (See : Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and other vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446;State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890).

20. The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

21. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC (Crl.) 407 = AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :- (1) the circumstance from which an

inference of guilt is sought to be

drawn, must be cogently and firmly

established;

(2) those circumstances should be

of a definite tendency unerringly

pointing towards guilt of the

accused;

(3) the circumstance, taken

cumulatively, should form a chain

so complete that there is no escape

from the conclusion that within all

human probability the crime was

committed by the accused and none

else; and

(4) the circumstantial evidence in

order to sustain conviction must be

complete and incapable of

explanation of any other hypothesis

than that of the guilt of the

accused and such evidence should

not only be consistent with the

guilt of the accused but should be

inconsistent with his innocence.

22. (See also : State of Uttar Pradesh vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 = 1992 Cr.LJ 1104) in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accept. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

23. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether.

24. Let us now delve into the merits.

25. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi (P.W. 8) stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her in- laws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child.

26. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathi’s father has not been challenged and, therefore, it was established that Padmavathi was not treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father.

27. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial court, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had come to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the “Ashoka Lodge” at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and come to the conclusion that the death of Padmavathi, in Room No. 113 of “Ashoka Lodge”, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja (P.W. 1) of Gandigawad village who was working at Belgaum, was found in that room. She had not died a natural death but was strangulated to death which was established by the post- mortem examination conducted by the Doctor (P.W. 12). Ajit (P.W. 2) who was the room-boy of “Ashoka Lodge” categorically stated that the appellant with his wife and the child had come to the “Lodge” and occupied Room No. 113. He also stated that the appellant later left the “Lodge” with his child on the pretext that his wife had died and that he was going to call his relations.

28. It is contended by the learned counsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had not supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant could not be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.

29. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile.

30. Gangavva (P.W. 3), with whom the child was left by the appellant on his return from “Lodge”, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had come with Padmavathi to “Ashoka Lodge” where they had occupied Room No. 113 is not affected. Their presence in “Ashoka Lodge” is testified by Ajit (P.W. 2), the room-boy of “Ashoka Lodge”. Padmavathi was, therefore, last seen in the company of the appellant. The appellant left the “Lodge” on the pretext that his wife had died and he was going to call his relations. But he did no return. His conduct of not returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did not return to “Lodge”. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would not have behaved in that fashion. His innocence would have been reflected in his conduct of coming back to the “Lodge”.

31. Apart from the appellant’s conduct in not returning to “Ashoka Lodge”, aft having left the “Lodge” at 12.00 Noon, another conduct of the appellant is significantly eloquent. When he reported at “Ashoka Lodge”, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber (P.W. 5), examined in the case. This was done obviously to the conceal his identity but police was vigilant and the appellant was apprehended without difficulty.

32. The appellant’s further conduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant; would have left the child with her. His taking away the child with him coupled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was non else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage.

33. The other hostile witnesses are Jaipal (P.W. 14) who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, P.W. 9 before whom extra judicial confession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did not turn hostile. If the statements of these witnesses are excluded, the prosecution case is still not affected on merits inasmuch as the story that the appellant had gone to the house of his father-in- law and taken away his wife and child and that the ultimately stayed in “Ashoka Lodge” at Belgaum where Padmavathi was found dead is not affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the conclusion that the appellant had committed the crime. The appellant was last seen with Padmavathi in Room No. 113 of “Ashoka Lodge” where he had stayed on the fateful day and had left the “Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellant’s presence in the Room immediately before the death of Padmavathi and his conduct in not coming back to the “Lodge” are circumstances strong enough to establish his guilt.

34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”.

35. Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath, has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one Room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”.

36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the “Vakalatnama” filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the “Vakalatnama” with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- S.73. Comparison of signature,

writing or seal with others

admitted or proved.- In order to

ascertain whether a signature,

writing or seal is that of the

person by whom it purports to have

been written of made, any

signature, writing or seal admitted

or proved to t satisfaction of the

Court to have been written or made

by that person may be compared with

the one which is to be proved,

although that signature, writing or

seal has not been produced or

proved for any other purpose.

The Court may direct any

person present in Court to write

any words or figures for the

purpose of enabling the Court to

compare the words or figures so

written with any words or figures

alleged to have been written by

such person.”

37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158)

39. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the “Vakalatnama”, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child.

40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.

41. The circumstance, the conduct and behaviour of the appellant conclusively establish his guilt on no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet, Amir Meenai in a couplet :-

“Qareeb hai yaro jo Roz-i-Mahshar

Chhupey ga kuston ka khoon keonkar

Jo chup Rehegi Zaban-i-Khanjar

Lahoo Pukarega Aastin Ka”

42. Translated into English, it will mean :- “On the day of Judgment, you will

not be able to conceal the killing

of innocents. If the sword will

keep silent, the blood stains on

your sleeves will reveal your

guilt.”

43. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is no bail. His bail bonds are cancelled. He shall be take into custody forthwith to serve out the life sentence.