1999 Supreme(Guj) 343

Gujarat High Court
Judgename :H.R.Shelat
INDRASING M.RAOL - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 207 of 1988
Decided On : 07/23/1999

Headnote:(a) Criminal Law — Expression cruelty — Meaning of — The expression means & implies harsh and harmful conduct of certain intensity and persistence.

       The expression cruelty means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left.

       [Para 6]

       (b) Penal Code, 1860 — Sec. 498A — Conviction under — Appeal against — Appreciation of evidence — Only evidence against appellant in the case is (i) alleged incident of putting deceased out and beating her by kick & fist blows at midnight about 15 days prior to the date of her committing suicide & (ii) copies of 3 letters written by appellant using unparliamentary or disgraceful language suggesting that he would be marrying again — Prosecution has examined three witness to support the prosecution story & the alleged incident but Court found that their evidence is fishy & not reliable — Even if the said solitary incident presumed to have happend it can not amount to cruelty & harashment envisaged in Sec. 498A IPC — Prosecution has to establish that cruelty or harassment was unabated, incessant & persistent & being grave in nature unbearable & the same was with the intention to force the woman to commit suicide or to fulfil illegal demand of dowry of the husband or her in-laws — In absence of evidence of such a nature the alleged solitary incident can not be considered sufficient to constitute the alleged offence — So far three letters are concerned Court held, that they are written intemperate language but it appears to be more as a result of frustration on the part of accused than with the intention to drive deceased to commit suicide.

       Motiba (Ex. 10) has not stated in her FIR though she preferred to state other facts in details, that between the two, there was no good relations and often the appellant was beating and harassing Kailasba. At the time of her grilling cross- examination, Motiba had to admit, that the appellant was, on the contrary, maintaining Kailasba conscientiously well; he was not beating Kailasba and even electric shocks were also not given; and when both were residing in Military Camp, the conduct of the appellant with Kailasba was quite congenial & decorous. However in the last report she has also stated that inhumanely treatment referring about illtreatment viz., beating, taking liquor, harassment, torturing, and tormenting for more dowry. When Motiba has made such cross-cutting statements about cruelty and has modulated the evidence by necessary improvements to suit the case of the prosecution, and have the order of conviction, her evidence being incredible cannot be accepted any independent corroboration.

       [Para 9]

       No doubt, in support of her say, Lilaben Jaikishandas (Ex. 14) and Manusinh Pratapsinh (Ex. 15) are examined, but their evidence also appears to be fishy.

       [Para 10]

       Even if it is believed for a while that the solitary incident as alleged did happen about 15 days prior to 7.3.1987, the day on which Kailasba committed suicide, the prosecution cannot succeed. It may be recollected that according to the prosecution, the appellant by force took Kailasba out and behaved roughly with her by giving kick and fist blows when Kailasba refused to go with him. Whether such solitary incident can be considered to be the cruelty or harassment envisaged by Sec. 498- A of Indian Penal Code is the question posed for consideration. As made clear, hereinabove, every act of cruelty or harassment is not made a crime under Sec. 498-A. The prosecution has to, as made clear hereinabove, establish that the cruelty or harassment was unabated, incessant & persistent and being grave in nature unbearable; and the same was with the intention to force the woman to commit suicide or to fulfil illegal demand or dowry of the husband or her in-laws.

       A solitary incident can not be interpreted to be the sufficient evidence of cruelty or harassment attracting Sec. 498- A because in that case, incessant, persistent and sufficiently grave cruelty as is likely to drive the woman to a point of desperation leaving her with no option except to think about suicide will be absent. In other words, a single incident will not incite a woman to commit suicide the improvident act, believing that life is now not worth living. Even if in some case it incites, the same will not attract Sec. 498-A as persistency or incessancy will be lacking. The section when envisages that cruelty or harassment must be unabated continuous or recurring & unbearable, one or two incidents casually taking place, may therefore, attract another penal provisions of I.P. Code, but will not attract Sec. 498-A of Indian Penal Code.

       [Para 16]

       A perusal of the above three letters produced reveals that the appellant rightly or wrongly in his assessment found Kailasba to be the choleric, oafish, idiotic, and/or haughty to an extent, as well as overtrusting, crass and naive, easily vulnerable to deception, evils and ploy of any one as she oblivious of wordly vices used to repose trust blindly. Because of his such belief, he also once warned in the letter not to see his brother-in-law, since he did not wish to wager his future and make his life hellish or stygian. It seems, because of his such belief or conviction, he thought it wise to be on the alert against any shifty persons, or ill-will of any one or soiling forces, and not to be caught off guard. In view of his such, assessment and belief, when Kailasba showed her unwillingness to go with him, the appellant being provoked, lost his temper; as unwillingness of Kailasba for no good cause was a sore point with him. The sulky and imbalanced appellant then behaved stupidly, imprudently and rashly. From such facts on record what can be deduced is that not with the intention to drive Kailasba to commit suicide but with the intention to protect her chastity and save her from defiling forces, he when any how, wanted to take Kailasba to his house cut up rough. In view of such fact, Sec. 498-A will not be attracted as required intention is wanting.

       [Para 18]

       If in assertion of conjugal right, the accused does a pesky act or wrong amounting to harassment, when ones own spouses avoids her obligation turning blind eye to his right for no good reasons, it cannot be termed unabetted harassment or cruelty within the meaning of Sec. 498-A; but it will amount to expected or incited stormy reaction to the act on the part of the victim or complainant side. In that case, required intention to drive her to commit suicide can be said to be wanting. In the case on hand, Kailasba for no good cause was avoiding to go to Meerut where appellant was serving. The evidence reveals that Kailasba was advised by Motiba not to write letters. The object of marriage was being frustrated. The three letters written during disheartening period are therefore the reaction of the unjust provocation act on the part of Kailasba. In other words, the same is the flesh and out-break of a fiery or dejected mind. When that is so the letter or contents thereof even if believed to be impolite or ungracious act will not fall within the ambits of cruelty envisaged by Sec. 498-A I.P. Code, because the same will be lacking of required intention to drive her to commit suicide.

       [Para 22]