GUMANSINH @ LALO @ v. THE STATE OF GUJARAT

1.2. However, when the Court has to appreciate the evidence of any interested witness it has to be very cautious in weighing their evidence or in other words, the evidence of an interested witness requires a scrutiny with utmost care and caution. The Court is required to address itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable, trust-worthy and inspires the confidence of the Court. Another important aspect to be considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistent and trustworthy, free from infirmities or any embellishment that inspires the confidence of the Court, there is no reason not to place reliance on the same. [Para 22][35-B-D]

1.3. In the case at hands, PW-1,2,3 and 4, though they are related to the deceased, are natural witnesses. There being no bar in examining the family members or any other person as witnesses, their evidence is not liable to be discarded on this ground. The evidence of the aforesaid witnesses is found consistent without any material contradiction and inspires confidence. The Courts below have also properly scrutinized their evidence prior to taking them into account and there is nothing unusual in believing their testimonies. [Para 24][37-F- G]

1.4. From the evidence of the prosecution witness, it is clear that prosecution has proved that the deceased was harassed with a view to coerce her to meet unlawful demand of Rs.25,000/- and such a harassment was on account of failure by her to bring the said amount from her father (PW-1) who was financially incapable to meet such demand. On the basis of the aforesaid evidence, the prosecution has been successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC. [Para 25][37-G-H; 38-A]

2. Whether the accused can also be held guilty for the offence punishable under Section 306 IPC (which provides punishment for the offence of abetment of suicide) with the aid of Section 113 A of the Evidence Act. [Para 27][39-A] GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. v. THE STATE OF GUJARAT

2.1. Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A of the IPC. [Paras 13, 14][31-F; 32-B]

2.2. To attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled :- (i) The woman has committed suicide, (ii) Such suicide has been committed within a period of seven years from the date of her marriage, and (iii) The charged-accused had subjected her to cruelty. From the facts of the case at hands, all the three conditions stand fulfilled. However, the existence and availability of the above said three circumstances are not to be invoked, like a formula, to enable the presumption being drawn and the presumption is not an irrebuttable one. [Paras 32, 33, 34][41- C-F]

2.3. Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption exists. Admittedly the appellants have led no evidence to rebut the presumption. Thus, in the facts and circumstances of the case, it can be safely concluded that the Courts below committed no illegality in holding that the accused-appellants abetted the suicide of the deceased. The matter can be viewed from another angle. The prosecution was successful in establishing the charge under Section 498-A of cruelty against the appellants from which a reasonable inference can be drawn that the deceased committed suicide by consuming pesticides. The deceased was in the custody of the appellant and died within the four walls of her matrimonial home under suspicious circumstances. [Paras 37 and 38][42-B-D]

2.4. Not only a specific charge was framed against the accused-appellants, on one hand, the defence failed to adduce 27 A B C D E F G H 28 A B C D E F SUPREME COURT REPORTS [2021] 6 S.C.R. any evidence to rebut the presumption under Section 113-A of the Evidence Act and on the other hand the prosecution was successful in establishing the evidence that the deceased was left with no choice than to commit suicide. No fault can be found with the Trial Court and the Appellate Court placing reliance on the evidence in drawing the presumption under Section 113-A particularly, when there was no material brought on record by the defence to disprove the facts. [Paras 44, 45][45-G; 48-A-B]

3. Both the Trial Court as well as the High Court have threadbare considered the evidence and have recorded cogent reasons to come to the conclusion that the prosecution has been successful in proving the case against the appellants beyond reasonable doubt. [Para 46][48-B-C] Gurjit Singh v. State of Punjab (2020) 14 SCC 264 – distinguished. Maranadu and Anr. v. State by Inspector of Police, Tamil Nadu (2008) 16 SCC 529 : [2008] 13 SCR 487 ; Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 : [2001] 4 Suppl. SCR 247 ; Ramesh Vithal Patil v. State of Karnataka & Ors. (2014) 11 SCC 516 ; Satish Shetty v. State of Karnataka (2016) 12 SCC 759 : [2016] 3 SCR 145 ; and K. Prema S. Rao & Anr. v. Yadla Srinivasa Rao & Ors. (2003) 1 SCC 217 : [2002] 3 Suppl. SCR 339 – relied on. Case Law Reference [2008] 13 SCR 487 [2001] 4 Suppl. SCR 247 (2014) 11 SCC 516 [2016] 3 SCR 145 [2002] 3 Suppl. SCR 339 relied on relied on relied on relied on relied on Para 23 Para 31 Para 39 Para 40 Para 40 Para 42 G (2020) 14 SCC 264 distinguished CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.940-941 of 2021. From the Judgment and Order dated 28.12.2018 corrected vide order dated 08.02.2019 of the High Court of Gujarat at Ahmedabad in H GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. v. THE STATE OF GUJARAT 29 R/Criminal Appeal No.833 of 2000 and final order and judgment dated 07.03.2019 in Criminal Miscellaneous Application No.1 of 2019. A Ms. Akriti Chaubey, Md. Tahir M. Hakim, Ejaz Maqbool, Varish A. Mansuri, Muhammad Isa M. Hakim, Advs. for the Appellants. Ms. Deepanwita Priyanka, Aniruddha P. Mayee, Advs. for the Respondent. The Judgment of the Court was delivered by KRISHNA MURARI, J.

1. Leave granted.

2. These appeals arise out of final order and judgment of the Hon’ble High Court of Gujarat at Ahmedabad (hereinafter referred to as ‘High Court’) dated 28.12.2018 corrected vide order dated 08.02.2019 in R/Criminal Appeal No. 833 of 2000 and final order and judgment dated 07.03.2019 in Criminal Misc. Application (for extension of time) No. 1 of 2019 filed by the appellants challenging the order of conviction against them.

3. By the said judgment, the High Court has dismissed the appeal filed by the appellant herein challenging the judgment dated 27.07.2000 passed by the Learned Sessions Judge, Vadodara in Sessions Case No. 92 of 1998 convicting the appellant in respect of the offence punishable under Section 306, 498A read with Section 114 of the Indian Penal Code (hereinafter referred to as ‘IPC’) is confirmed.

4. In brief, the prosecution case is that the marriage of Appellant No. 1 was solemnized with Tahera (hereinafter referred to as the ‘Deceased’) on 27.04.1997 and after the marriage, the deceased was residing with both the appellants. The Appellant No.1 was constantly asking the deceased to bring Rs.25,000/- from her father (PW-1) in order to purchase buffaloes as, he was keen on doing milk business. Due to poor financial condition, PW-1 was not able to satisfy the demand of Appellant No. 1. Therefore, Appellant No.1 frequently started beating the deceased, while Appellant No. 2 who was her mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor do any house-hold work properly. The deceased committed suicide on 14.12.1997 between 17:00 and 17:30 hours by consuming poison at her matrimonial home for the sole reason that she was unable to bear the continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months. B C D E F G H 30 A B C D E F G H SUPREME COURT REPORTS [2021] 6 S.C.R.

5. The PW-1, father of the deceased filed a complaint with Padra Police Station which was registered as ICR No. 34 of 1997 for the offences punishable under Section 498A and 306 read with Section 114 of the IPC. After completion of the investigation, charge-sheet was filed in the Court of Learned Judicial Magistrate First Class, Padra, who committed the case to the Court of Sessions. The case was registered as Sessions Case No. 92 of 1998 and was made over to the Learned Additional Sessions Judge for trial. Charges were framed and against the appellants and they pleaded not guilty and claimed to be tried.

6. In order to substantiate the case, the prosecution has examined seven witnesses and all the incriminating evidence was put to the appellants while recording their statement under Section 313 of Code of Criminal Procedure Code, wherein they totally denied the case of the prosecution.

7. The Trial Court came to the conclusion that the Appellants subjected the deceased to physical and mental cruelty which lead her to commit suicide and convicted the appellants for offences punishable under Section 498A and 306 of IPC and sentenced them to undergo Rigorous imprisonment for a period of one year and pay fine of Rs. 500/- as well as two years Rigorous imprisonment and pay fine of Rs. 500/-.

8. Aggrieved by the same, the accused appellants filed an appeal before the High Court and mainly contended that there was no demand of money by Appellant No. 1 as he was only asking for loan to purchase buffaloes in order to start milk business. It was further contended that the deceased was under medical treatment as she was suffering from some mental illness. It was pointed out that only relatives were examined as witnesses though independent witnesses were available and therefore, the prosecution case becomes doubtful. It was further contended that the appellants were not present in the house when the deceased committed and prayed for the appeal to be allowed and the conviction of the appellants be set-aside.

9. However, the High Court observed that the evidence produced by the prosecution clearly indicates the deceased was subjected to mental and physical cruelty by the appellants on the account of non-fulfillment of demand of Rs.25,000/- and, therefore, the judgment and order of conviction passed by the learned Trial Court was confirmed. GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. v. THE STATE OF GUJARAT [KRISHNA MURARI, J.]

10. Being aggrieved by the conviction and sentence under Section 498-A IPC and Section 306 IPC, the accused have preferred these appeals. Ms. Akriti Chaubey, learned Counsel for the appellants vehemently submitted that the conviction as recorded by the learned Trial Court and confirmed by the High Court is not tenable. It is submitted that the evidence of the material witnesses suffer from major contradictions and there was no demand of any money by the appellant No.1 because he was only asking for loan to purchase buffaloes with an intention to start milk business. She further submitted that the deceased was suffering from some mental illness for which she was under medical treatment. Her further submission is that only close relatives were examined as witnesses and there was no independent witness.

11. Per contra, Ms. Deepanwita Priyanaka, learned counsel appearing on behalf of the State submitted that there is a concurrent finding of both the Courts below as such no interference is warranted. It is further submitted that all the ingredients necessary for conviction under Section 306 IPC stands proved with the aid of Section 113-A of the Evidence Act, 1872 as such the present appeals deserved to be dismissed.

12. We have considered the rival submissions and also perused the impugned judgment as also the testimony of the witnesses with the aid of learned counsel for the parties.

13. It is undisputed that the suicidal death of the deceased occurred within a short span of eight months of marriage. Section 113- A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. The said section reads as under :- “113A. Presumption as to abetment of suicide by a married woman - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the 31 A B C D E F G H 32 A B C D E F G H SUPREME COURT REPORTS [2021] 6 S.C.R. case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).”

14. Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A of the IPC and thus it would be relevant to extract said section which reads as under :- “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 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 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.”

15. The prosecution case was that the marriage of the deceased who was the daughter of the complainant was solemnized with appellant no. 1 around eight months before the alleged incident and thereafter she was residing in her matrimonial home along with her husband, the appellant no.1 and mother-in-law, the appellant no. 2. For about two months, they had a peaceful life, thereafter the appellant no. 1 started pressing deceased to bring Rs.25,000/- from her father to purchase buffaloes as he was interested in starting business of milk. It was further stated that the complainant PW-1 was unable to satisfy the GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. v. THE STATE OF GUJARAT [KRISHNA MURARI, J.] demand on account of his weak financial condition. When the demand of Rs.25,000/- could not be met by the complainant, the appellant no.1 started beating the deceased and appellant no. 2, the mother-in-law also used to quarrel with her on the pretext that she was not knowing cooking and was not doing household work properly. On account of physical and mental cruelty meted out to her during a short span of eight months of marriage, when it became unbearable she committed suicide on 14.12.1997 between 17:00 and 17:30 hours by consuming poison at her matrimonial home.

16. Aforesaid complaint lodged by PW-1, the father of the deceased, was registered vide I-C.R.No. 341 of 1997 for the offences punishable under Sections 498-A and 306 read with Section 114 of the Indian Penal Code.

17. A perusal of evidence of PW-1, Mustufa Chhotubhai Ghori, the father of the deceased would establish that deceased was married to appellant no. 1, eight months prior to the alleged incident. He stated in his testimony that the married life of the two was smooth for initial two months, however, after two months of the marriage, the appellant no. 1 started insisting Tahira (the deceased) to ask for a sum of Rs.25,000/- from PW-1 to purchase buffaloes for milk business, but he was unable to pay the said amount as he was earning his livelihood by running a tea stall and was also indebted. He also stated that since he could not fulfill the demand because of his weak financial position, his deceased daughter was ill-treated and beaten frequently by appellant no.1. He further stated that the appellant no. 2, the mother-in-law of the deceased also started quarreling on the pretext that the deceased could not make chapatti properly nor could she do the household work and her father has not taught her anything. He also stated that the deceased used to share her trauma with her mother (PW-4) who in turn used to tell her everything. He further stated that the son-in-law was very suspicious and he did not let Tahira (the deceased) to go alone to any place and used to beat her. He also stated that lastly appellant no. 2 came to his house along with the deceased and demanded Rs.500/ - from his wife (PW-4), as her husband was to go to Ajmer. He also stated that in the night at about 1:30A.M., PW-3 his brother, came and informed about the death of the deceased. In the cross-examination, his testimony was unshaken. Though during cross-examination, it was tried to be elicited from this witness that deceased was suffering from some kind of illness prior to marriage and was undergoing some 33 A B C D E F G H 34 A B C D E F G H SUPREME COURT REPORTS [2021] 6 S.C.R. treatment. The witnesses admitted in the cross-examination that the deceased was suffering from some pain and his wife used to take her for treatment and was given medicine. Apart from above, neither the nature of illness nor the details of the treatment or medication could be elicited from this witness. As a matter of fact, there was not even a suggestion by the defence that deceased was suffering from any kind of mental illness or undergoing treatment for the same.

18. The evidence of PW-1 stands corroborated by the evidence of PW-4, Dariyaben Mustufa Ghori, the mother of the deceased, as well as PW-3 Ahmadbhai Chhotubhai Ghori, the brother of complainant and PW-5, Hanif Mustufa Ghori, brother of the deceased.

19. It is pertinent to mention that much emphasis has been laid by learned counsel for the appellants on the cross-examination of PW-1, wherein he stated that even before marriage the deceased was undergoing treatment and medication. Learned counsel for the appellants vehemently contended that the deceased was suffering from some mental disease and was undergoing treatment and her mental instability might have resulted in suicide. The argument is not liable to be accepted inasmuch as neither any evidence was produced by the defence in this regard nor anything about the illness or medication was stated by them in their statement under Section 313. The deceased lived in her matrimonial home with the appellants for about eight months after marriage and if she was undergoing any prolonged treatment, it was not possible for the appellants not to have acquired knowledge of the said facts.

20. It was next submitted by the learned counsel for the appellants that all the witnesses are relative and interested witnesses and no independent witness was examined by the prosecution to prove the case, thus, the prosecution case becomes doubtful.

21.Most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness and even if an independent witness is available whether he or she would be willing to be a witness in the case is also a big question because normally no independent or unconnected person would prefer to become a witness for a number of reasons. There is nothing unnatural for a victim of domestic cruelty to share her trauma with her parents, brothers and sisters and other such close relatives. The evidentiary value of the GUMANSINH @ LALO @ RAJU BHIKHABHAI CHAUHAN & ANR. v. THE STATE OF GUJARAT [KRISHNA MURARI, J.] close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.

22. However, when the Court has to appreciate the evidence of any interested witness it has to be very cautious in weighing their evidence or in other words, the evidence of an interested witness requires a scrutiny with utmost care and caution. The Court is required to address itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable, trust-worthy and inspires the confidence of the Court. Another important aspect to be considered while analyzing the evidence of interested witness is whether the genesis of the crime unfolded by such evidence is probable or not. If the evidence of any interested witness/relative on a careful scrutiny by the Court is found to be consistent and trust-worthy, free from infirmities or any embellishment that inspires the confidence of the Court, there is no reason not to place reliance on the same.

23. A three-Judge Bench of this Court in the case of Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu1, while considering this issue, has observed as under:- “Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. “….Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 1 (2008) 16 SCC 529 35 A B C D E F G H 36 A B C D E F G H SUPREME COURT REPORTS [2021] 6 S.C.R.

11. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:- “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”