Court:DELHI HIGH COURT
Bench: JUSTICE S. Ravindra Bhat
SURENDER TOKAS Vs. STATE (NCT OF DELHI) On 13 March 2007
No Acceptable Material or Legal Evidence in Support of Prosecution Story about Cruelty or Cruel acts of such Nature Meted out by Petitioner, Resulting in Death of Deceased — Charge Framed under Section 498A, IPC Againsit Petitioner quashed.
1. The revision petitioner, under Section 397 challenges an order on charge, framed by the learned Additional Sessions Judge (hereafter ‘ASJ’) whereby he has been charged with commission of offence under Section 498A, Indian Penal Code, 1860 (hereafter ‘IPC’).
2. According to allegations in the First Information Report (FIR) the petitioner, husband of Anju (the deceased, referred to as such) had a quarrel with her; as a result, she set fire to herself, in a fit of anger. The incident occurred on 7.11.2004. The deceased was removed to the hospital; her initial statement was that she caught fire while cooking; in a subsequent statement, recorded after she was found fit to make another statement, she gave a different version. She said that after a quarrel with the husband, in a fit of rage, she went, poured kerosene, and set herself ablaze. She also stated that she did not realize that the incident could become so serious. Later, on 13th November, 2004, she died, on account of infection, caused by 48% burns. The FIR registered was for the offence under Section 306, and Section 498A. The marriage between the couple had been solemnized 15 years before the incident.
3. After charge-sheet was filed, the prosecution urged that the petitioner ought to be charged with both offences; the trial Court considered the materials, and held that the charge under Section 306 was not made out. It, however, framed the charge under Section 498A on the basis of the statement recorded under Section 161, by the minor daughter of the couple, who had mentioned about how the petitioner, her father, had allegedly stated ‘Sali, mar kyon nahin jati’ before the deceased set fire to herself.
4. Learned Counsel for the petitioner, Shri Ramesh Gupta, submitted that there is no iota of evidence to justify an order on charge, in respect of Section 498A IPC. According to him, the mainstay of the prosecution story was the testimony of the daughter, who spoke of an alleged incident whereby the petitioner had abused the deceased, immediately before she set fire to herself. The Court having declined to accept that statement as the basis of a charge in respect of the more serious offence, viz., Section, 306, could not have used it for the purpose of charging the petitioner under Section 498A.
5. Learned Counsel also relied upon the deposition, and cross-examination of minor Swati, who had earlier given a statement under Section 161. She had deposed, during the trial on 22.2.2007. In the course of her deposition, she did not support the prosecution story, and denied that the petitioner had ever abused her mother, or that he had abused her. She testified that the petitioner sought to help the deceased, by dousing the fire, and got injured himself. She also withstood the cross-examination by the Public Prosecutor, who requested, and was granted permission to treat her as a hostile witness.
6. On the strength of the above, it was contended that there was no material, to justify a charge under Section 498A, and that the ingredients of that offence did not exist. Mr. Gupta relied upon the decisions reported as Gananath Pattnaik v. State of Orissa, I (2002) SLT 729=I (2002) CCR 138 (SC)=2002 (2) SCC 619, and Suraj Prakash v. State of Delhi, 135 (2006) DLT 135=2007 (I) AD (Del.) 445, to say that there ought to be evidence in support of the charge under Section 498A, of cruelty of such magnitude as would lead a person to commit suicide.
7. The petition was opposed by the State, on whose behalf, it was urged that the trial Court was justified in framing the charge under Section 498A. Learned Counsel further relied upon the judgment in Cr. R.P. No. 172 / 2002, State v. Ashok Kumar, 135 (2006) DLT 64=I (2006) CCR 239 (DB)=decided on 16.10.2006, and urged that a charge under Section 498A, IPC, independent of Section 306 or 304B, IPC, can be framed.
8. The decision in Ganapathi Pattnaik (supra) had noted that the ingredients necessary to make out an offence under Section 498-A, were:
“(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.”
Interestingly, in the same judgment, earlier, the Court had held as follows:
‘The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. ‘Cruelty’ for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”
This reasoning is also in consonance with the view in Pawan Kumar v. State of Haryana, I (1998) DMC 165 (SC)=II (1998) SLT 525=I (1998) CCR 265 (SC)=1998 (3) SCC 309; and Mohammed Hoshan v. State of A.P., II (2002) DMC 594 (SC)=V (2002) SLT 390=2002 (7) SCC 414, where the Supreme Court held that the two offences are distinct.
9. The question as to whether if the offence under Section 306 or 304B are not made out, an accused can still be charged with commission of offences under Section 498A is no longer open to debate. As a matter of law, all would depend on the circumstances of the case, and the nature of the alleged cruel behaviour.
10. The order on charge would show that the trial Court was influenced solely by the statement of the daughter, recorded by the police, which had alleged that the petitioner abused her mother, and had asked her to die. Yet, while deposing before the Court, she did not support that version. She was cross examined; during that process, she denied having stated anything like that, or having witnessed it. She also denied that she was under some influence, as she had reached the national level swimming sport, with her father’s help. Thus, there was no acceptable material, or legal evidence, in support of the prosecution story about the cruelty or cruel acts of such nature meted out by the petitioner, resulting in the death of the deceased.
11. In view of the above findings, the petition has to succeed. The charge framed under Section 498A, IPC, against the petitioner is hereby quashed.
12. The petition is allowed in the above terms. No costs.