Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., addressed a petition wherein petitioner is an accused of the offences lodged under Sections 498-A, 304-B Penal Code, 1860 and 3/4 of Dowry Prohibition Act, 1961 seeking custody of his children from their maternal grandparents.

The instant petition was filed for a writ of habeas corpus with an assertion that petitioner 2 and 3 (minor children of petitioner 1 age about 8 years and 3 years, respectively) were detained by respondents 4 and 5 (maternal grandparents of the minor children).

Petitioner 1 was sent to jail for being the primary accused in respect of an incident relating to the death of the wife of petitioner 1 i.e. mother of the children, whose custody was being sought.

Additional Advocate General submitted that since petitioner 1 was the principal accused in the above-stated criminal case, granting him the custody of children would be detrimental to their interests.

In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, it was held that:

 the paramount consideration in such matters would be the welfare of the child, and the court, exercising ‘parens patriae’ jurisdiction, must give due weightage to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor’s mother, was a relevant factor required to be considered before an appropriate order could be passed.

 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, it was held that:

though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

Petitioner could not demonstrate as to how the custody of minor children with their maternal grandparents could be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus.

Hence, petitioner withdrew the petition stating that he would pursue other remedies available under the law with regard to the custodial rights.[Pankaj v. State of U.P.,  2021 SCC OnLine All 116, decided on 20-01-2021]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., inter alia, reversed the conviction of the second wife (of the husband of the complainant-first wife) for abetting the offence under Section 494 IPC.

Criminal Appeal was preferred against the Judgment of conviction and order of sentence passed by the Judicial Magistrate, 1st Class.

Prosecution case was based on a complaint petition wherein it was alleged inter alia that the marriage of the complainant was solemnized with the petitioner and after the marriage, she went to her matrimonial house. Complainant’s mother-in-law and her husband were not happy with the articles demanded due to which they tortured the complainant physically and mentally adding to this, she was also not provided with food.

Petitioner solemnized second marriage with Deoki Devi, thereafter also the complainant stayed at the matrimonial house and gave birth to a son. Complainant’s son was snatched away from her along with all her ornaments and thrown out of the house. Complainant came to her parental house after which the Chief Judicial Magistrate took cognizance.

Prima Facie case under Section 498-A Penal Code, 1860 was made out against the petitioners and further prima facie case under Section 494 of IPC against Mohan Mahto (Complainant’s Husband) was made out.

Court’s Analysis

Bench found that the Lower Appellate Court wrongly recorded that the trial court had convicted Mohan Mahto, Chundri Devi and Deoki Devi for offence under Section 498 A and 323 IPC. Trial Court’s judgment reflected that the learned trial court had convicted Mohan Mahto and Chundri Devi under Section 498A and 323 IPC but Deoki Devi was not convicted under Section 498A of IPC.

Bench noted that there has been consistent evidence on record against the present petitioners who happen to be the husband, and in-laws of the complainant and petitioner Deoki Devi who is the second wife of the petitioner Mohan Mahto regarding physical and mental torture along with demand of dowry, she was thrown out of her matrimonial house with her only son.

Court in view of the above-stated facts and circumstances stated that the family members of the complainant from the side of the in-laws of the complainant have been rightly convicted by the trial court under Section 498A/323 IPC. Petitioner – Deoki Devi has rightly not been convicted under Section 323 IPC only as she was the second wife of the petitioner.

Since the petitioner solemnized to second marriage during the lifetime of his first wife, the complainant, his conviction under Section 494 IPC was upheld.

So far as the conviction of Deoki Devi was concerned under Section 494/109 IPC, Court found that the Complainant Witnesses did not speak a word regarding her role in abetting the offence of second marriage. Though allegations in abetment of second marriage were made against the mother-in-law, father-in-law as well as the father and brother of Deoki Devi, but nothing was said about the role of Deoki Devi nor has imparted any knowledge on the part of Deoki Devi prior to her marriage with Mohan Mahto, that Mohan Mahto was already married.

Court held that the essential ingredient to instigate the petitioner-Mohan Mahto to solemnize second marriage with petitioner -Deoki Devi on her part is wholly lacking in the records of the case. Thus, the finding of the trial court, upheld by the appellate court, holding that Deoki Devi knowingly married the accused Mohan Mahto who was already married, and consequent conviction of petitioner -Deoki Devi for abetment of offence under Section 494 IPC committed by Mohan Mahto, is ex facie perverse, based on no evidence against Deoki Devi.

Further, the Bench found that the Complaint case was filed in the year 2009 and the petitioners namely, Deoki Devi and Chundri Devi have faced the rigours of the trial for 11 years and they have no criminal antecedents and both are females having children

Considering the aforesaid facts and circumstances of the case, this Court is of the view that the ends of justice would be served, if the sentences of the petitioner — Chundri Devi is modified to the period already undergone by her. [Chundri Devi v. State of Jharkhand,  2021 SCC OnLine Jhar 20, decided on 04-01-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Gautam Chowdhary, JJ., gave certain directions to be followed by the police officers before making arrests in cases registered under Section 498-A of Penal Code, 1860.

Factual Matrix

The marriage of respondent 4’s daughter was fixed with petitioner 1 and Rupees 6.5 lakhs were given to the petitioners by respondent 4. Petitioners had also demanded a Creta Car and stated that if said demand could not be fulfilled then they would not solemnize the marriage.

Petitioners Counsel submitted that the marriage of daughter of respondent 4 was fixed with the petitioner 1 and after the ring ceremony, respondent 4 with the ulterior motive, demanded money from the petitioners for solemnizing the marriage and stated that if the same was not fulfilled then petitioners would be falsely dragged in a criminal case.

Under provisions of Sections 204, 41(1)(b), 41(1)(b)(ii)(e), 41(a) of the CrPC, police cannot arrest the petitioners without giving notice and without collecting any credible evidence against the petitioners.

Decision

Bench explained the import and meaning of the amended provisions Section 41(I)(b) and 41 A CrPC.

Police still routinely in many cases proceeds to arrest the accused persons even if they are involved in offences punishable with up to 7 years imprisonment, in contravention of the express terms of Section 41 (I)(b) or 41 A CrPC.

High Court also referred to the Supreme Court decision in Social Action Forum for Manav Adhikar v. Union of India, Writ Petition (Civil) No. 73 of 2015 with Criminal Appeal No. 1265 of 2017 Writ Petition (Criminal) No. 156 of 2017.

 Further, the Court was pained to note that regularly petitions are filed where the offence committed would be for lesser period than 7 years or maximum punishment would be 7 years and they routinely bring by way of writ petition scrap of being arrested.

The provision of Section 41-A were incorporated of this purpose only that concerned who is not charged with heinous crime does not require and whose custody is not required may not face arrest.

Bench gave the following directions:

  • The State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41-A of CrPC 1973.
  • All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
  • The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
  • The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention
  • Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing.

[Vimal Kumar v. State of U.P.,  2021 SCC OnLine All 83, decided on 28-01-2021]

Case BriefsHigh Courts

Chhattisgarh High Court: Arvind Singh Chandel J., allowed the appeal and reduced the sentence to the period already undergone by the petitioner for an offence punishable under Section 498-A Penal Code, 1860.

The facts of the case are such that about 1 ½ year prior to the date of incident marriage of the present Appellant was solemnized with the deceased Anuradha Mishra. After marriage, Appellant, as well as his relatives, used to torture the deceased on account of demand of dowry, due to which she committed suicide on 19-12-2002 and thereafter morgue was lodged consequent to which offence was registered. After completion of the trial, Trial Court acquitted the co-accused and present Appellant for the charges under Section 304- B of Penal Code, 1860 i.e. IPC however, Trial Court convicted the Appellant for the offence punishable under Section 498-A IPC and sentenced him. Aggrieved by the same, the present appeal was filed.

Counsel for the appellant submitted that Appellant has already undergone about 13 months out of total jail sentence of 03 years, he has no criminal antecedent and he is facing the lis since 2002, i.e., for about 18 years. Therefore, the jail sentence awarded to the Appellant may be reduced to the period already undergone by him.

Counsel for the respondents submitted that opposed the appeal and supported the impugned judgment.

In view of the facts and submissions the Court held that “out of total jail sentence of 03 years, the Appellant has undergone about 13 months, he is facing the lis since 2002 and there is no criminal antecedent against him, I am of the view that the ends of justice would be met if, while upholding the conviction imposed upon the Appellant, the jail sentence awarded to him is reduced to the period already undergone by him.”

 In view of the above, appeal was allowed.[Rajesh Mishra v. State Of Chhattisgarh, 2020 SCC OnLine Chh 1303, decided on 14-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of B. Amit Sthalekar and Shekhar Kumar Yadav, JJ., held that dying declaration can be acted upon without any corroboration when the Court feels convinced about its trustworthiness.

Appellants filed the instant criminal appeal against the order passed by Additional Sessions Judge whereby appellants have been convicted under Section 302/34 of Penal Code, 1860.

All the appellants except appellant Kamal were convicted under Section 498-A IPC and sentenced to three years rigorous imprisonment along with fine with default stipulation. Further, all the appellants except appellant Kamal were convicted under Section 3 of the Dowry Prohibition Act and sentenced to three years rigorous imprisonment along with fine with default stipulation.

Adding to the above, all the appellants except appellant Kamal were convicted under Section 4 of the Dowry Prohibition Act and sentenced to two years imprisonment along with fine with default stipulation.

Appellant filed the instant bail applications in light of the above-stated.

The factual matrix of the instant case shows that informant alleged that the marriage of his niece was solemnised with accused-appellant Raju son of Jaiprakash. Raju, his mother and father, sister and his friend were continuously torturing and harassing the niece of informant for bringing less dowry and for not giving vehicle in the marriage, and these torturous acts of appellants/applicants were regularly complained to the informant’s side by his niece and for which a case of dowry was also registered and pending between the parties.

It was further added to the allegations that the appellants/applicants took the niece of the informant to her matrimonial home, thereafter, she has been continuously harassed and maltreated again for bringing less dowry, which was also complained by her to the informant and the family members.

It was alleged that the appellants set ablaze the informant’s niece with the intention to kill her and when the informant and his family members got the said information, they took her to the hospital and on enquiry by the informant she narrated that all the appellants set her at ablaze with an intention to kill her.

During the treatment, informant’s niece lost her life.

Appellants Counsel submitted that the dying declaration is not trustworthy because, in the dying declaration, it has not been recorded that the deceased was in a fit state of mind to make the said dying declaration.

AGA for the State placed reliance on the dying declaration recorded by the Executive Magistrate to contend that there is no contradiction or inconsistency in the dying declaration so as to disbelieve the same. It was further submitted that Executive Magistrate in his deposition stated that before recording the dying declaration, he enquired about the mental status of the victim from the Doctor and on being satisfied regarding the fit mental status of the deceased, he proceeded to record the dying declaration and it is not the requirement of law that the Executive Magistrate was under an obligation to record his satisfaction that the deceased was in a fit state of mind to make the dying declaration.

AGA also placed reliance on the Supreme court decision in Laxman v. State of Maharashtra, (2002) 6 SCC 710, wherein it was explained that medical certification is not a sine qua non for accepting the Dying Declaration.

Decision

Bench on prima facie reading of dying declaration noted that the deceased gave the dying declaration before the Executive Magistrate, who after having been satisfied that she was in a fit state of mind in giving the statement, recorded her dying declaration.

In the dying declaration, deceased categorically stated the manner in which she was burnt by the appellants.

It is trite law that the court should not be too technical when it feels convinced about the trustworthiness of the dying declaration, which inspires confidence, can be acted upon, without any corroboration.

Bench found a case against the appellants and hence bail was rejected.[Babli v. State of U.P., 2020 SCC OnLine All 1461, decided on 09-12-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., while addressing the instant matter, observed that:

The wife and children of a personnel of the Air Force who has sworn to put his life in peril deserve a treatment different from that of a civilian who has no obligation to sacrifice his life for the country.

Petitioner, a sergeant in the Indian Air Force (IAF) filed the petition in regard to the following:

  • impugning the Air Force Order issued by respondent 2 Chief of Air Staff
  • impugning the administrative order issued by the Chief of Air Staff, sanctioning maintenance claim against the petitioner.
  • Seeking maintenance, directing respondent 2 Chief of Air Staff to refund the amount of maintenance granted under the administrative order, to the son of the petitioner and payable to the respondent 5 i.e. wife of the petitioner.

What the petitioner alleged?

Petitioner’s wife left matrimonial home along with her son and refused to join the petitioner in spite of repeated efforts of the petitioner. Petitioner approached the family court for dissolution of marriage and further initiated custody proceedings for his son.

As a counterblast, wife of the petitioner initiated proceedings under Section 125 of the Criminal Procedure Code, 1973 for maintenance and also approached the Court under Section 156(3) CrPC for registration of a case under Sections 141, 149, 363, 504 & 506 of the Penal Code, 1860 against the petitioner and his parents.

Wife of the petitioner also filed a false and fabricated case under Section 498A of the IPC against the petitioner and his parents but the proceedings in the criminal complaint, as well as the case under Section 498A of the IPC, were stayed by the Allahabad High Court.

Analysis and Decision

Petitioner’s counsel drew the Court’s attention to Sections 190, 191 and 191A of the Air Force Act, 1950 empowering the Central Government to make regulations for all or any of the purposes of the Act other than those specified in Section 189 and requiring the regulations so made to be published in the Gazette and to be laid before the Parliament.

Section 91(i), in exercise of powers whereunder the impugned AFO No. 03/2013 has been issued, shows the same as authorising deduction from pay and allowances of an officer of any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

Petitioner being a sergeant, the above-stated section would not apply to him.

Section 92(i) authorises deduction from the pay and allowances of an airman, of any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

The Court opined that once (a) there is a specific provision in the Air Force Act i.e. in Sections 91(i) and 92(i) thereof and to which there is no challenge, qua deduction from the pay and allowances, for payment of maintenance; (b) Rule 162, to which also there is no challenge, defines the ‘prescribed officer’ within the meaning of Section 92(i); and, (c) the Air Force Regulations in Regulation 917, to which also there is no challenge, provides that Air Force orders will be issued by the Chief of Air Staff, the impugned order has been issued in compliance of all the said provisions and there was no the need for the said order to be laid before the Parliament or to be notified/ratified इन accordance with Sections 190, 191 and 191A of the Act.

Just like the Courts draw their power to pass orders/decrees for payment of maintenance, from the statutes mentioned hereinabove, so does the Central Government and/or the prescribed officer draw power to award maintenance to wife and children of Air Force personnel from the provisions of the Air Force Act.

Next plea in the petition that was considered was, of the Air Force personnel being discriminated against vis-a-vis civilians, orders for payment of maintenance to wife and children whereagainst can be passed only by the Courts and not by the Central Government or the prescribed officer.

Regarding this, the Bench observed that:

Certainly it is not open to Air Force personnel, to have the privileges not available to civilians and reject the obligations, also not imposed on the civilians. The counsel for the petitioner also forgets that while the civilians can be punished only by the Courts of the land, the Air Force personnel can be tried and punished also by the Authorities under the Air Force Act. What is evident therefrom is, that personnel of the Air Force, form a class by themselves, distinct from the civilians.

Additional observations of the Court:

Sections 16 and 17 of the Air Force Act provides for all persons, enrolled as combatants, selected to hold a non- commissioned rank and subject to the Air Force Act, to be attested and which attestation is in the form of administration of oath containing a promise inter alia to obey all commands of any officer set over him, even to the peril of his life.

The said oath taken by the defence personnel, to the said extent is different from the oath required to be taken vide Articles 60, 69, 124 and 219 of the Constitution of India by the President, Vice-President, Judges of the Supreme Court and the Judges of the High Courts respectively, none of whom swear to place their life at peril for the service of the country.

Bench found no merit in the challenge by petitioner to AFO No. 3 of 2013. The said AFO did not make any legislative change and only guided the exercise of discretion and power vested by Sections 91(i) and 92(i) in the Central Government and the prescribed officer to make deductions from the salary and allowance for payment of maintenance to wife and children.

In Suneel v. Union of India 2003 SCC OnLine Del 810, question in the context of Army Act was considered and it was held that in view of the statutory provisions, the Authorities under the Army Act could not be debarred from making an order of maintenance in favour of wife and children of an Army personnel.[Sergeant Ajit Kumar Shukla v. Union of India,  2020 SCC OnLine Del 1590, decided on 10-11-2020]

Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., addressed an issue in the criminal petition in light of Section 41-A of the Criminal Procedure Code, 1973 and the essence of quashing criminal proceedings was thrown light upon by citing the Supreme Court decision in Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350.

The present application sought to quash proceedings pending against the petitioners wherein they were accused of the offences alleged under Sections 498-A, 406 and 420 read with Section 34 of Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Petitioners Counsel submitted that petitioner 1 and daughter of respondent 2 — de facto complainant married in the USA and registered their marriage. Petitioner 2 is the father of petitioner 1. Petitioner 3 is the mother of petitioner 1.

It has been stated that the de facto complainant implicated the petitioners herein in this false case due to matrimonial disputes between his daughter and accused 1. 

Adding to the above, counsel stated that the punishment prescribed for the offences alleged against the petitioners is seven years and below seven years and the police without following the procedure laid down under Section 41-A of CrPC, is trying to apprehend the petitioners. In the said course of action, the police have been calling petitioners 2 and 3 who are other aged parents of petitioner 1-accused 1, suffering from various old-age ailments.

In view of the above, petitioners sought to quash the same.

In Supreme Court’s decision of Kamal Shivaji Pokarnekar v. State of Maharashtra, (2019) 14 SCC 350, it was held that:

“…quashing of criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.”

“It was further held in the very same judgment that on perusal of the complaint, if discloses prima facie offences that are alleged against the respondents, it is sufficient. The correctness or otherwise of the said allegations has to be decided only in the trial. At the initial stage of issuance of process, it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused.”

Bench stated that in the present case, certain aspects need to be investigated by the investigating officer.

It is trite to note that the punishment prescribed for the offences alleged against the petitioners is imprisonment of seven years or below seven years.

Court disposed of the criminal petition directing the Station House Officer to follow the procedure laid down under Section 41-A of the CrPC and also the guidelines issued by the Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.[Prudhvi Nallamanikaluva v. State of Telangana, 2020 SCC OnLine TS 1291, decided on 19-10-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Z.A. Haq and Amit B. Borkar, JJ., while allowing the present criminal application filed under Section 482 of Criminal Procedure Code, 1973 observed the tendency in the society wherein the relatives of husband are also roped in with vague allegations under Section 498-A of Penal Code, 1860.

In the instant matter, both husband and wife started living separately from sister-in-law and brother-in-law of the husband after their marriage.

Due to quarrels between the non-applicant 2 and her husband, non-applicant 2 filed an FIR with Police Station, which was compromised. On a later date, non-applicant 2 again lodged a complaint with the Women Cell.

Further, the husband of non-applicant 2 filed a complained alleging harassment caused by parents and brother of non-applicant 2.

Non-applicant 2 approached the Judicial Magistrate and filed an application under Section 156(3) of Criminal Procedure Code, 1973 and, then the non-applicant 1 lodged FIR against the applicants. The said FIR has been challenged in the present application.

Women Cell i.e. non-applicant 1 submitted that the investigation was complete and there is a prima facie case against the applicants.

Wife i.e. non-applicant 2 contended that the applicants along with her husband harassed her for dowry and there were several complaints filed by her with the Police Station as and when harassment was caused.

Senior Advocate, Anil S. Mardikar along with S.G. Joshi, Advocate, represented the applicants; M.K. Pathan Additional Public Prosecutor for the non-applicant 1 –State and M.N. Ali, Advocate for the non-applicant 2.

Analysis & Decision

In light of adjudicating the present issue, bench considered it necessary to refer Section 498-A of Penal Code, 1860:

498-A. Husband or relative of husband of a woman subjecting her to cruelty – whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means-

(a) Any willful 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 women 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.”

Cruelty perpetuated to the woman may be physical or mental.

Bench stated that saying, “we are also serving in the police and we have connections with the higher Authorities, or the husband of the non-applicant 2 got no benefit of the education of the non-applicant 2” cannot be stated to be cruelty to the woman.

Nowadays, it has become a tendency to make vague and omnibus allegations, against every member of the family of the husband, implicating everybody under Section 498-A of the Penal Code.

It is necessary for the Courts to carefully scrutinize the allegations and to find out if the allegations made really constitute an offence and meet the requirements of the law at least prima facie.

Bench further cited the following decision of the Supreme Court:

G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, wherein it was observed that the criminal proceedings should not be allowed to be resorted to as shortcut to settle the score.

Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, in this case, Supreme Court deprecated the tendency of using the criminal justice system as a tool of arm twisting and to settle the score, and laid down that the High Court can intervene where the criminal justice system is used as a tool.

Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551, an observation was made that tendency, which has been developed for roping in all relations of the in-laws by the wife in the matter of dowry deaths or such type of similar offences in an over-enthusiasm and anxiety to seek conviction needs to be deprecated.

In the present case, sisters-in-law and brother-in-law were arraigned as accused without there being specific allegation as regards the nature of cruelty, as contemplated by Section 498-A IPC against them.

In view of the impugned FIR and charge-sheet, Court opined that no allegations against the applicants constitute offences alleged.

Therefore, the criminal application was allowed in view of the above-stated.[Shabnam Sheikh v. State of Maharashtra, 2020 SCC OnLine Bom 1752, decided on 15-10-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., addressed a matter with regard to the settlement of divorce proceedings.

Parties in the present petition have deposed before the Court below that they have entered into a compromise.

Hence, in view of the above, the petition is taken for final disposal.

It has been observed that certain offences were non-compoundable and they were within the power of Magistrate to compound namely under Sections 498-A of Penal Code, 1860 and 3/4 of the Dowry Prohibition Act.

Section 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

Section 3: Penalty for giving or taking dowry

Section 4: Penalty for demanding dowry

Further, it was noted that both the parties, i.e. the husband and wife and other family members settled the matter and decided to leave in peace after taking divorce.

The Court was of the view that the settlement between the parties should be accepted and the offence compounded. The decision of the Supreme Court in Bitan Sengupta v. State of W.B., (2018) 18 SCC 366 was referred.

Therefore, proceedings were quashed and settlement was recorded under Section 482 CrPC. In Supreme Court’s decision in B.S. Joshi v. State of Haryana, (2003) 4 SCC 675, it was observed that in matrimonial offences, it becomes the duty of the Court to encourage genuine settlement of matrimonial disputes.

Bench exercising its powers under Section 482 read with 397 of CrPC, 1973 permitted the parties to leave in peace.

Section 482 CrPC: Saving of inherent powers of the High Court.

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 397 CrPC: Calling for records to exercise of powers of revision

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

Court quashed the proceedings under Section 397 CrPC and allowed the petition.

The petitioner’s counsel pointed the orders passed by the Court below and hence the bench defied the proceedings if not yet defied. [Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ., upheld the decision of the trial court and stated that the present matter is a case of an irretrievable breakdown of the marriage in light of cruelty and desertion.

Cruelty & Desertion | Dissolution of Marriage

Allegations of cruelty and desertion were placed against the wife by the husband in light of which the husband approached the Family Court under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.

Family Court dissolved the marriage.

Aggrieved wife preferred the present appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 challenging the legality of the impugned Judgment of the Family Court.

Court considers in the present case whether the grounds of cruelty and desertion against the respondent-wife, the appellant herein, existed on the date of filing of the divorce petition or not.

From the pleadings of the parties and their evidence, it would appear that the respondent-wife left her matrimonial home along with her daughter and she did not live with her husband at any point of time till the petition was filed by her husband on seeking a divorce and even thereafter.

The witnesses of the petitioner including two of his neighbours had categorically asserted that they did not notice any untoward incidents preceding to the departure of the respondent-wife from her matrimonial home.

Further, the bench stated that on perusal of the parties and their evidence discussed, no material was found to show that the respondent-wife was ever forced by her husband to leave his company or that she was thrown away from her matrimonial home.

Wife prosecuted her husband and his relatives under Section 498A IPC which was proved to be unfounded in the Sessions Court as well as in the High Court.

Institution of a complaint under Section 498-A IPC against the husband does not ipso facto constitute mental cruelty unless the court having assessed the totality of the facts and circumstances and also having taken note of the nature of the allegations come to the conclusion that amongst other things the wife also brought unfounded and scandalous allegations with a clear intention to humiliate the husband and his relatives and such conduct of the spouse caused disappointment and frustration in the other spouse.

Whether such conduct of the respondent-wife amounted to the desertion of her husband and caused mental cruelty to him and entitled him to a decree of divorce.

There cannot be a straight-jacket formula for determining cruelty in matrimonial relationships. Whether the alleged conduct of the spouse constitutes cruelty has to be judged in the particular context of the case keeping in view all the attending facts and circumstances of the case.

In the present matter, the petitioner proved that his wife abandoned him along with her daughter when he lost his vision and was in dire need of their company and the support of his wife.

Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she labeled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act.

The unprovoked humiliating treatment by the wife to her husband caused cruelty to the husband.

Apex Court, while laying down the broad parameters for determination of mental cruelty for the purpose of granting divorce in Samar Ghose v. Jaya Ghose, (2007) 4 SCC 511 reiterated the same principle and held as follows as one of the parameters:

“101…(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

Hence, in the present matter, both the grounds of cruelty and desertion existed on the date of filing of the divorce petition. Moreover, there is no denial of the fact that the husband and the wife are staying apart for more than 13 years and during this period they never lived together at any point of time.

Therefore, the present matter is a case of an irretrievable breakdown of marriage and it is quite impossible to save the marriage.

 Trial Court’s decision is upheld and the husband is directed to pay a monthly maintenance allowance for his wife and daughter.[Aparna Dey v. Alok Dey, 2020 SCC OnLine Tri 411, decided on 09-09-2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B.A. Patil and Hanchate Sanjeevkumar, JJ., upheld the decision of the trial court with regard to dowry death.

By the instant criminal appeal, the decision of the Additional Sessions Judge, Gulbarga has been challenged.

Counsel for the appellant-accused: Iswaraj S. Chowdapur and Additional State Public Prosecutor for respondent – State: Prakash Yeli.

Dowry | Cruelty

Parents of Dattamma at the time of the marriage had given one tola of gold as dowry. After one year of when the dowry was given, the accused started subjecting Dattamma to cruelty contending that she doesn’t know how to cook and used to ask her to bring cash and gold from her parent’s house.

The said fact of cruelty was conveyed by Dattamma to her parents who along with some elderly persons visited the accused and paid a sum of Rs 5000, but he continued to subject Dattamma to mental and physical cruelty.

Later the accused poured kerosene and lit fire on Dattamma with the intention to commit murder. Afterwhich, she was taken to the hospital and sustained burn injuries.

In view of the above-stated offence, the trial court had convicted the accused.

Analysis and Decision

Bench while analysing the set of circumstances and submission placed stated that,

When the prosecution establishes its case with regard to ill-treatment and harassment said to have been caused by the accused and admittedly the death of the decased has also taken place within 7 years after the marriage, under such circumsatnces, a duty cast upon the Court to draw a presumption under Section 113 A of the Evidence Act that is dowry death.

Demand of Dowry

In the present matter, Court relying on the proposition laid down in the decision of C.M. Girish Babu v. CBI, (2009) 3 SCC 779, held that the prosecution has established that there was ill-treatment and harassment caused by the accused for the demand of dowry.

Trial Court has rightly convicted the accused for the offences punishable under Section 498-A and 302 IPC and also under Section 3 of the Dowry Prohibition Act.

Accused’s Counsel contended that the imprisonment itself is harsh and severe punishment under such circumstances the imposition of a heavy fine to a poor agriculturist is not justifiable and it is excessive fine which ought not to have been imposed.

In view of the above stated, Court modified the fine imposed on the accused.

The sentence imposed by the trial court for the offences punishable under Sections 498A and 302 of IPC and under Section 3 of the Dowry Prohibition Act was confirmed. [Baswaraj v. State of Karnataka, Criminal Appeal No. 354 of 2013, decided on 10-08-2020]


Also Read:

Cruelty to Women [S. 498-A IPC and allied sections]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Kumari Prabha Sharma, JJ., dismissed the allegations of dowry demand, cruelty against the father-in-law and husband of the deceased in view of the prosecution theory regarding homicidal death being nothing short of sheer exaggeration.

An appeal was preferred by the accused-appellants under Section 374(2) CrPC against the decision of Additional Sessions Judge (Women Atrocities Cases), Bikaner.

Deceased was married to appellant 1 for 10 years. On one fateful day she was found dead in the kitchen with burn injuries, whereupon her brother, PW.1 lodged.

Humiliated and Harassed

Allegations were placed that the deceased was harassed from the date of her marriage till death on account of dowry demand.

Both the father-in-law and husband of the deceased under the influence of liquor used to maltreat her owing to the demand for money.

The unjust demands of the above-stated persons used to be somehow met but the greed would never end.

PW1 also stated that when he saw his sister dead, both the husband and deceased’s father-in-law kept uttering the words that they had killed the woman and he could do whatever he liked. 

In view of the above, offences under Section 302, 498A and 34 of Penal Code, 1860 were filed.

Later, both the husband and father-in-law were arrested.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter stated that, if at all there was a semblance of truth in the allegation that the maltreatment of the deceased was continuing for almost 10 years, then her maternal relatives were expected to raise this issue by filing a complaint either to the police and if not, then at least intervention of the community elders would definitely have been sought.

Adding to the above, maternal neer reprimanded the cruel behaviour of the accused.

Hence, the allegations levelled by the prosecution witnesses that the accused were indulged in meting out continuous maltreatment to the deceased on account of demand of dowry is nothing short of sheer exaggeration and needs to be discarded.

Further, it was duly established that the father-in-law of the deceased had invested significant amounts from the sale proceeds of his agricultural land in the names of his granddaughters before the incident, which makes it clear that the allegation of humiliation and harassment is unsubstantiated.

On perusal of the medical report of the deceased, Court noted that the injuries were on the front, but the prosecution theory states that the deceased was set ablaze, if the said theory was true then the kerosene would have dribbled on the front as well as back, hence the defence theory of deceased falling down on the burning place in probablised.

In view of the above-stated background, the reverse burden of proof under Section 106 of the Evidence Act would also not come to the aid of the otherwise fragile and fragmented prosecution case.

Therefore, the accused-appellants were acquitted of all the charges.[Gopal v. State of Rajasthan, DB Criminal Appeal No. 799 of 2014, decided on 06-08-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: Shailendra Shukla, J., while addressing a anticipatory bail application, held that,

“…applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.”

The present anticipatory bail application was filed under Section 428 of Code of Criminal Procedure, 1973 as the applicant’s were apprehending their arrest for the offence punishable under Section 498-A Penal Code, 1860, Section 3/4 of Dowry Prohibition Act, 1961 and Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Due to some dispute, complainant after her Nikah returned back to her parental house, further the complainant submitted that her husband on 29th March, 2020 pronounced ‘Talaq’ thrice on telephone, thereafter an FIR was lodged against him.

Counsel for objector and State both submitted that after the Nikah when the complainant got pregnant her mother-in-law started alleging that complainant got pregnant much earlier and the child doesn’t belong to her son along with this, she also started asking for money saying that complainant did not give enough dowry to the applicants.

Decision

Bench stated that the applicability of the provisions of The Muslim Women (Protection of Rights on Marriage) Act, 2019 is only against the husband and not in-laws.

Further the Court noted that there was no physical cruelty , it appeared that early pregnancy became the cause of dispute and as per the complainant there was a telephonic call in which husband of the complainant sought termination of the marriage.

Bench found substance in the submission tat demand of dowry after pronouncing divorce was not possible.

Application was allowed and it was directed that in the event of arrest, applicants shall be released on bail. [Rafique Ahmed v. State of M.P., 2020 SCC OnLine MP 1521 , decided on 08-07-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sahidulla Munshi and Subhasis Dasgupta, JJ., upheld the conviction of accused-husband under Section 498-A IPC for the offence of cruelty to woman and under Section 302 for the murder of his wife. At the same time, the Court acquitted the accused-mother-in-law of the charge under Section 302 for murder while maintaining her conviction under Section 498-A IPC.

Present appeal was filed against the judgment and order of conviction and sentence passed by Additional Sessions Judge wherein accused/ appellants were convicted under Sections 498 A, 302, 34 of Penal Code, 1860.

Factual Scenario

Deceased in the present matter being the second daughter of the de-facto complainant/father was put to suffer death in her in-laws’s house by hanging.

After visiting to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion.

Deceased was frequently abused and threatened by her in-laws .

The in-law’s members while causing ill-treatment upon victim made her understand just three days after her marriage for staying in a cow shed, expressing their dissatisfaction on the ground of her black complexion.

Deceased victim reported everything to her parents about the torture and cruelty, she received in her in-law’s house, when she visited her paternal house on several occasions.

Deceased’s father after persuading her to withstand such torture inflicted upon her, for her future benefit upon realisation of weak financial condition of her father.

Later, de-facto complainant/father of the deceased was informed by his on in law that the victim daughter had been put to suffer death by hanging.

Decision & Analysis

Court observed that the cause of inflicting torture was the black complexion of deceased victim which lead the in-law’s members of the victim including her accused husband to cause physical cruelty upon her.

Victim received threat from in-law’s members for her husband’s second marriage after driving her out from matrimonial home. So long victim remained alive and visited her paternal house, she expressed her extent of torture and cruelty inflicted upon her by her in- law’s members, and all the times the de-facto complainant persuaded his daughter to return to her in-law’s house for her future prospect, keeping in view the poor condition of de-facto complainant/father.

On observing the above, Court stated that causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498 A/ 34 IPC against the in law’s members including husband.

Whether the victim suffered homicidal or suicidal death?

Autopsy Surgeon stated categorically in his evidence that if any person is pressed by telephone chord on his throat, then there could be ligature mark, as he found in the instant case, which might have caused the death of deceased victim.

Thus, noticing such continuous ligature mark Autopsy Surgeon opined in absence of poison in the viscera of deceased that it was a case of homicidal death, and ante-mortem in nature.

Whether non-production of weapon in a murder trial will lead to rejection of testimony of autopsy surgeon or not?

Court on noting the facts and circumstances along with the evidence stated that it is an established fact that there was an unnatural death of deceased in the in-laws’s house of the deceased victim after 7 months of her marriage.

Sufficient evidence was placed to show that the victim received oppression, ill- treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion.

Accused husband having failed to offer any explanation for the injuries caused to his wife, the failure would lead to the conclusion that the death of the deceased had occurred in the custody of accused husband as they both shared the same room after marriage.

Non-production of offending weapon in the absence of any explanation may be an error or latches on the part of prosecuting agency, but such error or omission would not itself discard the testimony of Autopsy Surgeon.

Hence, facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.

Commission of cruelty upon the deceased though proved against the mother-in-law under Section 498A read with Section 34IPC, but she should not have been held convicted for causing homicidal death of deceased victim under the behest of Section 302/34 IPC. on the simple ground that death of the victim was held in her matrimonial home.

Bench modified the conviction and sentence of accused mother-in-law under Section 498 A/34 IPC and deserves to be favoured with an order of acquittal for offence under Section 302/34 IPC.

Thus, the appeal was dismissed and accused mother-in-law be set free from correctional authority forthwith upon completion of sentence awarded against her under Section 498A/34 IPC.[Mazidul Miah v. State of W.B., 2020 SCC OnLine Cal 1077 , decided on 25-06-2020]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Ajai Lamba, CJ and Soumitra Saikia, J., granted a decree of divorce to the appellant-husband on the grounds of cruelty by the respondent-wife.

Background of the Case

Appellant husband lived with his mother, sister and brother, After his marriage bother respondent wife and appellant husband started their conjugal life in the matrimonial house of the appellant.

After about a month of their marriage, respondent wife demanded to reside separately with the appellant husband away from the husband’s relatives in a separate house. Appellant being a contractual labourer was not able to sustain separate accommodation for him and his wife as he was required to render service at a place away from his matrimonial house.

Appellant husband in the face of persistent demands by the respondent wife for separate accommodation also attempted to take the respondent wife to his place of work by arranging separate accommodation away from the matrimonial home. However, the respondent wife continued to resort to frequent quarrels with the appellant and started blaming him for the couple not being able to have a child after marriage. The respondent wife alleged that the appellant husband was medically unfit.

Later, respondent wife declared that she was not willing to continue her matrimonial life with the appellant and further insisted on going back home. Respondent wife also filed a case under Section 498(A) Penal Code, 1860.

Appellant husband contended that the respondent wife compelled the appellant to execute a written agreement to the effect that the couple will stay in a separate rental house together away from the joint family of the husband and further that the appellant/husband’s family members will not visit them or maintain any relations with them.

In view of the above agony faced by the husband, he filed a divorce case against the wife.

Respondent wife contended that she was subjected to extreme cruelty by the appellant’s step-mother, sister-in-law, brother and his two sisters.

According to the respondent, the family members of the appellant tortured her physically and mentally by demanding various cash and kinds from her as dowry and also declined to provide her the bare necessities of life. She further stated that the respondent declined to provide her medical treatment, wearing apparels, adequate food and medicine etc. which are provided to her by her brother. She further stated that she was assaulted and sent back to her brother’s house by the appellant and his family members demanding her to bring money from her house.

Upon due consideration of the evidence, the court below came to the finding that there was no cruelty extended to the appellant husband and his family members or that they were neglected by the respondent wife and accordingly rejected the petition for divorce by the husband.

High Court noted that respondent wife did not dispute on the fact that there was an agreement wherein appellant was required to provide separate accommodation to the respondent wife, where appellant’s family members were not permitted.

Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ‘sakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant.

In view of the above, it can be said that the wife inflicted cruelty upon the appellant and his family members.

Family Court erred in evaluating the evidence in the proper perspective. Acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband’s family members amounts to cruelty.

Bench also cited a Supreme Court Decision — Rani Narasimha Sastri v. Rani Suneela Rani, 2019 SCC OnLine SC 1595, wherein it was held that

filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife.

Adding to its conclusion, Court also stated that under the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007 children shall mandatorily be required to maintain parents and senior citizens.

Thus, it is evident that the lower Court completely ignored the fact that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother.

Hence, the above stated is sufficient to construe as an act of cruelty leading to punishment or imprisonment as well as fine.

Impugned judgment of the Family Court be overturned in view of the discussions rendered. Divorce decree is allowed and marriage between the appellant husband and respondent wife is dissolved.[Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954 , decided on 19-06-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Jaishree Thakur, J., allowed a petition filed under Section 482 CrPC and held that,

“Disgruntled wives use the provisions of Section 498- A IPC as a weapon rather than shield.”

Petitioners have been summoned to face trial under Sections 498-A, 506, 120-B Penal Code, 1860 an order declaring petitioners as proclaimed offenders.

Complainant got married to Jaswant Singh. The complaint was made against Jaswant Singh, Amarjit Kaur was alleged to be his second wife.

Soon after the marriage, accused persons had started harassing the complainant. Husband of the complainant at the instance of other accused gave the complainant beatings and stated that she would have no place in the house if the demands are not fulfilled.

Even during the birth of complainant’s child her delivery expenses were borne by her parents. Husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. 

Complainant was threatened of dire consequences on making a complaint against the husband.

Husband without taking divorce from the complainant had also solemnized a second marriage. Thus she filed a petition under Section 125 CrPC and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

Bench observed that no direct and specific allegations against the petitioners were made out with regard to beating to the complainant or demand of dowry or misappropriation of stridhan.

Petitioner 1 is the sister-in-law of the complainant, who after marriage and had been residing in her matrimonial home, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner 1. Petitioner 2 was 11 years old when the complainant alleged that she was given beatings by her husband at the instance of petitioner 2. Moreover, he had left for Canada in and was residing there since then. Similarly, petitioner 3 had also left for Canada in 1996 and was residing there since then with petitioner 2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.

Thus, in view of the above, Court stated that,

It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives.

Simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades.

In the present case also, complainant failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture.

Therefore, Court opined that the present case is a sheer abuse of process of law. [Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577 , decided on 15-05-2020]

Case BriefsHigh Courts

Delay in lodging a complaint cannot be used as a ritualistic formula for doubting prosecution case

Bombay High Court: K.R. Shriram, J., addressed an appeal impugning an order and judgment of acquittal of the accused of offences punishable under Section 498-A (Husband or relative of husband of a woman subjecting her to cruelty), Section 323 (Punishment for voluntarily causing hurt), 504 (Intentional insult with intent to provoke breach of the peace), 506 (Punishment for criminal intimidation), 494 (Marrying again during lifetime of husband or wife) read with Section 109 (Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment) of Penal Code, 1860.

The complainant- PW-1 got married to accused 1. It has been stated that at the time of complainant’s father’s retirement he received a cheque of retirement benefits that the accused 1 got to know about and demanded PW-1 to get Rs 1 lakh from her father. It has been added that accused 1 also suspected PW-1 of immortality.

Accused 1 got married to accused 5 while he was still married to PW-1. Thus PW-1 lodged a complaint.

In the Supreme Court’s decision of Murlidhar v. State of Karnataka, (2014) 5 SCC 730, it was held that,

Unless the conclusions reached by the trial court are found to be palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, Appellate Court should not interfere with conclusions of the trial court.

High Court while deciding the matter, noted that there is a presumption of innocence in favour of respondent and such presumption is strengthened by the order of acquittal passed in favour of the trial court.

Further, the bench stated that, according to PW-1, accused 1 demanded Rs 1 lakh when he saw the retirement benefits cheque in the hand of her father and her father got retired on 28-02-2001. PW-1/Complainant lodged the complaint on 04-01-2002, but the delay for the same was not explained. PW-1 left her children behind when she left the accused 1’s house but she never filed for divorce, custody petition. But filed for maintenance petition on 10-03-2003 for which the delay was not explained again.

Delay in lodging the complaint cannot be used a ritualistic formula for doubting the presecution case and discarding the same solely on the ground of delay in lodging the complaint.

Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory.

Hence, the Court stated that in the present case there was not even an attempt by the prosecution to explain the delay. Court noted that, PW-1 had no problems living alone with her parents but when PW-1 heard from her father that accused 1 had married accused 5, PW-1 decided to teach accused 1 a lesson.

In view of the above, Court held that,

It is unfortunate that in a matter like this even the family members get dragged. Prosecution should refrain from dragging all family members unless there is enough specific evidence against the family members otherwise provisions of Section 498-A will, unfortunately, be misused as a weapon.

Therefore, the allegation of offence under Section 494 of IPC had not been proved and the decision of the trial court of acquittal of all the accused persons was rightly taken. [State of Maharashtra v. Ashok, 2020 SCC OnLine Bom 331, decided on 26-02-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., while upholding the decision of the trial court with regard to the acquittal of the accused, held that,

“There is an acquittal and therefore, there is double presumption in favour of accused.”

The present appeal was filed impugning an order and Judgment by Vth Adhoc Sessions Judge, Pune, acquitting 6 accused of offences punishable under Sections 498A, 306, 201 read with Section 34 of Penal Code, 1860.

Accused were charged with offences punishable under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 302 (punishment for murder), 201 (causing disappearance of evidence of offence, or giving false information to screen offender ) read with Section 34 (Acts done by several persons in furtherance of common intention) of IPC.

Jayshree (Deceased) on visiting her parental home on several occasions had informed of the ill-treatment and harassment she was being received from her matrimonial home on account of demand of money for buying a Motorcycle.

On hearing the same, Complainant (Jayshree’s father) made the in-laws of Jayshree realise that they should not ill-treat or harass Jayshree.  After a few days, on one morning Complainant received the message of Jayshree being dead.

Thereafter, Complainant alleged the accused of having ill-treated Jayshree on account of demand of money for the purchase of Motor Cycle and made her life miserable and thereafter murdered her. Base on the same, offence was lodged under Sections 498A, 302, 201 and 34 of Penal Code.

Trial Court altered the charge from Section 302 to 306 IPC on receiving an application for the same as the medical report stated that the cause of death was by hanging, i.e., suicide not murder.

After hearing the parties and on receiving the evidence pertaining to the case, Court passed the order of acquittal, which is impugned in the present appeal.

APP submitted that the accused were harassing and ill-treating the deceased by unlawfully demanding Hero Honda Motor Cycle. Jayshree on not being able to bear with the harassment on the part of the accused, therefore, abetted the commission of suicide by Jayshree. Hence all the accused have to be convicted.

Senior Advocate, Rajiv Patil while defending the impugned Judgment submitted that none of the witnesses can be taken to have proved the offence under Sections 498A or 201 or 306 of IPC.

Decision

High Court agreed with the respondent’s counsel on considering the evidence placed on record.

With regard to the evidence in regard to the allegation of demand of money for motor cycle, documents showing that the accused had bought the same before his marriage on taking a loan from the bank which was also repaid before the marriage have been placed on record.

Regarding Section 306 IPC, Court noted that no evidence had been placed on record to speak off. There was no evidence to suggest or indicate that the accused knew or had reason to believe that the deceased would commit suicide.

“Even if any acts or words uttered by the accused or their conduct are sufficient to demean or humiliate the deceased and even to drive the deceased to suicide, such acts will not amount to instigation or abetment of commission of suicide, unless it is established that the accused intended by their acts that the deceased must commit suicide. It is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide.”

In reference to the above, decision of Kerala High Court was cited, Cyriac v. Sub-Inspector of Police, Kaduthuruthy, 2005 SCC OnLine Ker 346, wherein it was held that,

“…it is not what the deceased ‘felt’, but what the accused ‘intended’ by her act which is more important.”

Thus, in Court’s opinion and on considering the evidence on record, prosecution failed to drive home the charge under Section 498A or Section 306 IPC.

Bench held that there is double presumption in favour of the accused,  firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court.

Hence, trial court’s decision cannot be held illegal or improper or contrary to law. [State of Maharashtra v. Vijay Maruti Bombale, 2019 SCC OnLine Bom 5985, decided on 19-12-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and V.G. Bisht, JJ., dismissed the criminal appeal on finding the trial court’s decision which was challenged to be in consonance with evidence on record.

A criminal appeal was filed by the deceased’s father (Informant) against the judgment and order that acquitted the respondents of the offence punishable under Sections 498-A, 304B, 302 read with 34 of Penal Code, 1860.

Deceased (Ambavva) was married to accused 2 and during the settlement of their marriage, the informant had agreed to give an amount of Rs 10,000 and one tola gold to the accused 2. As per custom, informant went to the accused persons house to take back Ambavva for a ceremony but was refused to go. After about 12 days when no message was received from Ambavva, informant again went to see her but accused persons did not allow meeting him.

Ambavva once had informed the informant that she was subjected to mental cruelty and insulting treatment by the accused persons.

One of the daughters of the informant informed that Ambavva had left the house of the accused persons without informing anybody and on that event informant along with his family went to the police station to report the same and were informed by the police that Ambavva had died.

Thereafter, informant when went to the accused persons house found in the adjoining land of their house, dead body of Ambavva floating on the well water.

In view of the above, informant lodged a complaint against the accused persons and a report was lodged by complainant offences punishable under Sections 498-A, 306 of Penal Code.

Trial Court had acquitted the respondents from all the charges and hence the present appeal was filed.

Trial Court had relied on the medical evidence and opined that in case of a homicidal death, there would have been some injuries on the persons of Ambavva, but there were none.

Conclusion

High Court on noting the facts and evidence placed by the prosecutions stated that the evidence of the witnesses suffers from non-disclosure of specific details of alleged cruelty and harassment to Ambavva at the hands of the accused.

Mere allegations of harassment and cruelty, in absence of mentioning specific-time, date and specific overact qua accused would not attract any ingredients of Section 304B of IPC. Prosecution failed to establish that there was cruelty and harassment to Ambavva by the accused.

Further, the Court stated that even to attract the ingredients of Section 498-A of IPC, prosecution must have shown specific acts of the accused suggesting cruelty and harassment.

Thus on vague and general allegations, it is not possible to base the conviction of the accused thereby reversing the well-reasoned order of acquittal passed by the trial court. [State of Maharashtra v. Basveshwar Kallapa Patne, 2020 SCC OnLine Bom 219, decided on 03-02-2020]

Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J., dismissed an appeal filed against the order of the trial court whereby the respondent-accused were acquitted of the offences under Section 498-A (husband or relative of a woman subjecting her to cruelty) and Section 306 (abetment of suicide) read with Section 34 (acts done by several persons in furtherance of common intention) of the Penal Code.

The case of the prosecution was that prior to date of incident, the accused (husband and in-laws of the deceased), in furtherance of their common intention, subjected the deceased to cruelty and abetted a suicide. The accused were chargesheeted and tried for the offences under Sections 498-A and 306 read with Section 34 IPC. However, they were acquitted of all the charges by the trial court. Aggrieved thereby, the State filed the instant appeal.

Regarding the offence under Section 498-A, the High Court observed: “Law on what would amount to an offence under Section 498-A, has been well discussed in catena of judgments. It is settled law that under Section 498-A IPC, every cruelty is not an offence. The cruelty must be of such a degree as contemplated by this Section, i.e. it must be willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, and health of the woman.” It was noted by the Court that the allegations made against the accused regarding demand of money, ill-treatment due to inability to cook, cruelty due to not conceiving, were general allegations and no details were mentioned. In such circumstances, it was held that the allegations under Section 498-A were not proved.

Coming to the offence under Section 306, the High Court noted that this was a case of abetment by instigation. It was observed: “In order to constitute ‘abetment by instigation’ there must be a direct incitement to do the culpable act.” After referring to a catena of decisions on the subject and considering the facts of the instant case, the Court stated: “It is nobody’s case that the accused intended Aarifa to commit suicide. A fatal impulse or an ill-fated thought of the deceased, however unfortunate and touchy it may be, cannot fray the fabric of the provision contained in Section 306 IPC. In short, it is not what the deceased ‘felt’, but what the accused ‘intended’ by their act which is more important in this context.”

In light of what has been mentioned above, the High Court concluded that the opinion of the trial court could not be held to be illegal or improper or contrary to law. The order of acquittal, in Court’s view, required no interference. [State of Maharashtra v. Nabab Mohammad Shaikh, 2020 SCC OnLine Bom 290, decided on 04-02-2020]