O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed.

.………………..……………….…….…J.
(N.V. RAMANA)
……………………………………….……J.
(ARUN MISHRA)
……………………………………….……J.
(ROHINTON FALI NARIMAN)
……………………………………….……J.
(R. BANUMATHI)
……………………………………….……J.
(ASHOK BHUSHAN)

New Delhi;
January 14, 2020.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CURATIVE PET(R) Nos.7-8/2020 in R.P.(Crl.) Nos.672-673/2017 in Crl.A. Nos.609-610/2017
VINAY SHARMA Petitioner(s)
VERSUS
THE STATE OF N.C.T. OF DELHI THROUGH SECRETARY Respondent(s)

(FOR ADMISSION and IA No.4419/2020-STAY APPLICATION and IA No.4417/2020-ORAL HEARING IA No.4417/2020 – ORAL HEARING IA No.4419/2020 – STAY APPLICATION)

WITH

CURATIVE PET(R) No.6/2020 in R.P.(Crl.) No.570/2017 in Crl.A. No. 607/2017 (II-C)

(FOR FOR STAY APPLICATION ON IA 5103/2020 FOR ORAL HEARING ON IA 5106/2020 IA No.5106/2020 – ORAL HEARING IA No.5103/2020 – STAY APPLICATION)

Date : 14-01-2020 These matters were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE N.V. RAMANA
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON’BLE MRS. JUSTICE R. BANUMATHI
HON’BLE MR. JUSTICE ASHOK BHUSHAN

By Circulation
UPON perusing papers the Court made the following

O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

The Curative Petitions are dismissed in terms of the signed order.

(SATISH KUMAR YADAV)
AR-CUM-PS

(RAJ RANI NEGI)
ASSISTANT REGISTRAR

(Signed order is placed on the file)

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Baburao @ Sagar Rupaji Dhuri Age: 23 years, Occu: Service, R/o. 414, Varsha Building, Ganesh Nagar, Diva (W), Thane. Presently at Amravati Central Prison …Appellant

Vs.

1. The State of Maharashtra (At the instance of Pawai Police Station C.R. No.163/15
2. Miss ‘X’ through her guardian Mrs Pradnya Pradip Jadhav, R/o Sulochanabai Chawl, K.B.M. Compound, Saki Vihar Road, Powai, Mumbai – 400 072. ….Respondents
…..
Mr Aniket Vagal, for the Appellant.
Mr. S.V. Gavand, for Respondent No.1-State.
…..
CORAM: PRITHVIRAJ K. CHAVAN, J.
RESERVED ON: 16TH DECEMBER, 2019.
PRONOUNCED ON 20TH DECEMBER, 2019.
P.C:
By this appeal, the appellant challenges the judgment and order dated 30th June, 2018 passed by the learned Special Judge under the Protection of Children from the Sexual Offences Act, 2012 (for short ‘POCSO’), wherein he has been convicted under section 6 of the POCSO Act and is sentenced to suffer rigorous imprisonment for ten years with a fine of Rs.1000/-, in default, to suffer simple imprisonment for 30 days.

2. The appellant has also been convicted of an offence punishable under section 342 of the Indian Penal Code (for short ‘I.P.C’) and sentenced to suffer rigorous imprisonment for one year.

3. The appellant came to be acquitted of the offences punishable under section 10 of the POCSO Act and under sections 376, 366 (A) of the I.P.C. The appellant has been directed to pay compensation of Rs.25,000/- to the victim as per section 33(8) of the POCSO Act.

4. As per Rule-33 (7) of the POCSO Act, identity of the victim as well as all the family members, relatives, neighbourhood or any other information by which identity of the victim is revealed is required to be concealed. I, therefore, refer the important witnesses as;
[1 P.W.1, Informant and mother of the victim as – “P”
[2 P.W.2-Victim as – “G”
[3 P.W.3- Victim’s neighbour and an eye witness as – ‘M’
[4 P.W.4- Panch witness and husband of P.W. 3-M. – M.M
[5 P.W.6, neighbour of the victim and an eye witness as – “G.R.”

5. The prosecution case, as emerged from the record is as follows: It was 18th April, 2015 when five and half years old victim residing at Sulochana Bai Chawl, K.B.M Compound, Powai, Mumbai went to play with a small boy namely Babu in the neighbourhood. P.W.3-M is a relative of informant P.W.1-P. The victim is the daughter of the informant “P”. P.W.6- G.R. a 16 year old boy asked P.W.3- M to see what the appellant was doing. When P.W.3-M went at the backside of the house of one Sawant and peeped in the house through a space in the door, to her shock, she noticed that the victim was made to lie on the ground in a prone position while the appellant was lying on her person. P.W.3- M suspected some foulplay and, therefore, she knocked the front door and raised shouts by calling the victim’s name. The victim came out after five minutes. P.W.3-M took her to her home and asked as to what the appellant was doing. The victim told P.W.3-M that when she went in search of Babu for playing, the appellant took her in the house, bolted the door from inside and then pulled her slacks down and made her lie in prone position on the ground. He put his penis in her anus and was moving it. She further said that the appellant called her on the pretext that he will show her songs on his mobile. The appellant was residing in the house of his maternal aunt namely Mrs. Sawant who is residing in front of the house of P.W.3-M. P.W.3-M immediately asked brother of the victim to call his mother. When victim’s mother “P” (informant) came to the house, P.W.3-M narrated the incident to her. The victim had again narrated entire facts to her mother. Someone called the Police who came over there and took away the appellant.

6. F.I.R bearing No.163 of 2015 (Exhibit 12) came to be registered at Police Station, Powai against the appellant under sections 377 and 342 of the I.P.C and under sections 4, 8 and 12 of the POCSO Act.

7. P.W.10-Samir Mujawar was attached to Powai Police Station as P.S.I at the relevant time. The informant “P” approached the Police Station along with the victim. The lady Police Inspector recorded the statement of the informant “P”. P.W.10- Samir Mujawar rushed to the spot and drew a spot Panchanama. He recorded the statement of P.W.3- M who had shown the spot. The spot Panchanama is at Exhibit 16. The statement of the victim “G” also came to be recorded. Clothes of the appellant were seized under seizure panchanama. Clothes of the victim were also seized under the seizure panchanama.

8. Upon a disclosure statement made by the appellant, a mobile handset was recovered. The appellant was sent for medical examinations and his clothes were sent for chemical analysis. P.W.10-Samir Mujawar arrested the appellant. P.W.8- Dr. Meena Uday Savjani examined as a witness. Before that, one Dr. Vaibhav Khairnare had examined the victim “G” and as per the protocol, it being a case of sexual violence, it was reported to P.W.8-Dr. Meena. After recording the history, this witness examined the victim.

9. Statement of the victim “G” and P.W.3-M under section 164 of the Code of Criminal Procedure (for short ‘Cr. P.C.) was recorded by the 65th Metropolitan Magistrate, Andheri, Mumbai on 8th September, 2015. After investigation, the Investigating Officer laid a charge-sheet in the Court of Special Judge, Mumbai under sections 376, 342, 366A, 377 of the Indian Penal Code r/w sections 6 and 10 of the POCSO Act.

10. The appellant was produced before the learned Special Judge. A charge was framed in terms of Exhibit 3 against the appellant under sections 376, 342, 366A, 377 of the Indian Penal Code r/w sections 6 and 10 of the POCSO Act. It was read over and explained to the appellant to which he pleaded not guilty and claimed a trial. His defence was denial of the offences alleged. Two defence witnesses had been examined by the appellant in order to show that he had been falsely implicated due to some quarrel.

11. The prosecution examined in all 12 witnesses including the victim “G”. The prosecution has also placed reliance upon some documentary evidence. The learned Special Judge after considering the evidence on record and after hearing the prosecution and defence, found the evidence of the prosecution witnesses reliable and acceptable. The Special Judge, therefore, convicted and sentenced the appellant as above. The learned Counsel has been fair enough to submit that looking to the age of the appellant who is prosecuting his studies, he may be sentenced for the period already undergone by him.

12. Mr. Vagal, learned Counsel appearing for the appellant contended that there is no medical evidence of the victim indicating as to whether she was sexually assaulted or molested by the appellant. Her mother’s evidence is hearsay and, therefore, it is contended that it would be inadmissible. The learned Counsel for the appellant drew my attention to the report of Forensic Science Laboratory Exhibit 6 colly. He emphasized upon the result of analysis, more particularly, in respect of examination of the blood samples of the victim and that of the appellant. It is vehemently argued by the learned Counsel for the appellant that the said report reveals no male DNA was detected in vulval swab or anal swab of the victim.

13. It is submitted that this is a case which would, at the most, fall under section 7 of the POCSO Act which is punishable under section 8 of the said Act.

14. Per contra, the learned A.P.P, Mr. Gavand strongly opposed the arguments of the learned Counsel for the appellant by contending that the Special Judge had rightly appreciated the evidence of the prosecution witnesses and that there is no need to referring to the medical evidence as the appellant was just stopped when he was about to insert the penis in the anus of the victim. For all purposes, he was about to commit an offence as provided under section 3 of the POCSO Act.

15. The learned Additional Public Prosecutor drew my attention to the testimony of P.W.6-G.R who was the first person to notice the appellant indulging in the said act. My attention has also been drawn to the cross examination of P.W.3-M wherein nothing could be elicited which would render her testimony unworthy of credit. F.I.R is lodged promptly. There was no enmity between the victim and victim’s family and that of the appellant. The learned Additional Public Prosecutor has contended that no mother or parents would risk reputation of the family by involving their child risking its future. He further submits that the appellant betrayed trust of the victim in him who used to refer him as ‘Dada’ (elder brother). She was in fiduciary capacity with that of the appellant. The learned Additional Public Prosecutor has referred to section 18 of the POCSO Act which is a punishment for attempting to commit an offence. Thus, it is submitted that this is not a case in which leniency is required to be shown to the appellant.

16. P.W.2-G is the victim whose deposition came to be recorded below Exhibit 13. Her evidence came to be recorded in question and answer form after ascertaining as to whether she understood sanctity of oath. Learned Special Public Prosecutor put relevant questions to P.W.2-G. At the time of her evidence, she was aged about eight years. She testified that on the date of the incident, she had been called by Babu Dada, her friend. The appellant to whom she referred as “Sagar Dada” called her at his maternal aunt’s house. She has stated that his maternal aunt is called as “Sawant Kaku”. She further testified that the appellant bolted both the doors of the room. He then took off her clothes i.e full Shirt and Legging. He took off his clothes. Her evidence further reveals that the appellant inserted his “Nunni” (penis) in her “bocha” (anus). It was specifically asked as to the meaning of “Nunni” to which she answered that it is a place of urination by pointing her finger towards her place of urination. While answering the question as to what is meaning of “Bocha”, P.W.2-G pointed her backside by stating that it is a place of toilet. She further testified that Mothi Mummy knocked the door referring to P.W.3- M. Thereafter, the appellant put on her clothes and opened the door. There is no dispute about identity of the appellant. P.W.2-G had identified Aboli colour T Shirt and Blue Colour Legging which were on her person at the time of the incident.

17. Despite asking several questions to P.W.2-G during cross by the defence, it has not succeeded in rebutting her version. Several insignificant and irrelevant questions were asked which are not required to be considered, however, P.W.2-G testified that on the date of the incident, her mother dropped her at the house of P.W.3-M and left for market. In fact, the victim had gone to call one Babu Dada, another child, with whom she used to play, however, she came to know that Babu Dada was not at home.

18. It is suggested to P.W.2-G in cross that at the instance of P.W.3-M, she had stated that the appellant took her inside the house, bolted the door, took of his clothes and of the victim and then inserted his penis in her anus which she denied. Interestingly, a question was put whether T.V was on when the appellant closed the door to which she answered in the negative. It was also asked whether she shouted when the door was closed, upon which P.W.2- G answered that she shouted but slowly. This is perhaps because she frightened and scared due to such strange and abnormal act on the part of the appellant.

19. It was asked to P.W.2-G that how much time she was in the room, to which she answered five times she was in the room, perhaps she wanted to convey that for five minutes she was there. To the question put to her to whom she met when she came out of the room, the victim answered she met P.W.3-M. Thereafter, she went to the Police Station directly along with her parents and the witnesses. The defence gave a suggestion that the appellant had not removed her clothes to which P.W.2-G answered in clear terms that the appellant had taken out her clothes. She further reiterated the fact that the appellant had inserted his “nunni” in her “bocha”. She denied the suggestion that she deposed at the instance of her mother P.W.1-P and P.W.3-M.

20. The testimony of P.W.2-G is corroborated in material particulars, firstly by P.W.6-G.R who was the first witness to notice the incident. He was studying in the 9th standard at the relevant time and is resident of the same Sulochanabai Chawl where victim P.W.2-G was staying with her parents and also P.W.3-M and P.W.4- MM etc. His evidence reveals that on the date of the incident, he washed off urine of his brother Harshad who was suffering from some urine problem and went backside of the house to put the piece of cloth for drying. When he peeped from the space in the house of Sawantkaku, he noticed the appellant taking out his pant and also the pant of P.W.2-G. He knew P.W.2 as she was residing in the neighbourhood. He further testified that the door was closed and he could peep through the holes in the door. He did not feel good what he saw inside the room and, therefore, anticipating the foulplay of the appellant, rushed to P.W.3-M and informed her what he saw. Immediately, thereafter P.W.3-M rushed to the said room and she too peeped from the front door only to notice the act being committed by the appellant. P.W.6-G.R further testified that P.W.3-M went towards the front door and gave a call to the victim P.W.2-G by shouting her name. P.W.2-G came out running. She was taken to the home of P.W.3-M and was inquired about the incident. P.W.2 informed P.W.3 as to what had happened.

21. An unsuccessful attempt has been made to rebut the testimony of the P.W.6-G.R by the defence but failed in creating any dent. P.W.6-G.R. is a natural and a chance witness who had no axe to grind against the appellant and there was no reason for him to give false evidence. As usual, several irrelevant and insignificant questions were put to this witness during his crossexamination. It reveals from his cross that he used to play with P.W.2-G. P.W.1 -P and his mother were acquainted with each other. Relations were cordial but they were not on visiting terms frequently. He denied the suggestion that there used to be quarrels between him and the appellant when they used to play. He has denied the suggestion that P.W.3-M asked him to give a statement to the Police.

22. The testimony of this witness is corroborated in material particulars by P.W.3-M to whom P.W.2-G used to call as Mothi Mummy. As per the version of P.W.3-M on 18th April, 2015, P.W.6-G.R came to her and asked her to see what the appellant was doing. When she went at the backside of Sawant’s house and peeped inside through the space in the door, she observed that P.W.2-G was lying in a prone position and the appellant was lying on her person in a prone position. The witness realized that something obnoxious or in her words “not good” was going on and, therefore, she came towards the front door and knocked the same by shouting in the name of the victim. After five minutes, P.W.2-G came out. This witness took P.W.2-.G to her house and asked about the incident. P.W.2-G had stated that when she went to see Babu for playing, the appellant took her in the house and bolted the door from inside. He pulled her slack down and made to sleep her in prone position. He thereafter put his penis in her anus and was moving (shee chya jaget nunni takun halvat hota). Evidence of P.W.3-M further reveals that as per version of P.W.2-G, the appellant called her on the pretext that he will show her songs on his mobile. Admittedly, the appellant was residing in the house of his maternal aunt namely Mrs. Sawant who was residing in the neighbourhood of P.W.3-M. This witness, therefore, asked P.W.2- G’s brother to call his mother. However, she herself gave a call to P.W.1-P. People gathered over there and someone had called the Police. The Police arrived at the scene and took away the appellant.

23. During her elaborate cross-examination by the defence, nothing could be elicited which would render the testimony of P.W.3-M unbelievable. Most of the questions asked to the witness in the cross are either insignificant or irrelevant. Strangely enough, in her cross-examination, it has been reiterated or rather the prosecution case has been fortified when this witness stated that she recollected the exact words uttered by P.W.6-G.R when he asked her to see what the appellant was doing with P.W.2- G. Those words were; sister see what Sagar is doing with the victim. It appears that it was a frantic call given by P.W.6-G.R to P.W.3-M as P.W.6- G.R must have anticipated some untoward incident in respect of P.W.2-G. The cross further substantiates the fact that this witness immediately rushed to the back door of the Sawant’s house and saw through the space in the door. She has reiterated that she had not shouted loudly but she did shout and then knocked the front door of Sawant’s house which was opened by P.W.2-G. It has also been surfaced in her cross-examination that the appellant did not run away after the incident which reaffirms the fact that both the appellant and the victim P.W.2-G were very much present in the said room at the relevant time coupled with the fact that both P.W.6-G.R and P.W.3-M noticed the abominable act being committed by the appellant with P.W.2- G. P.W.3-M denied that there was a quarrel between her and Mrs. Sawant and that she had threatened Mrs. Sawant that she would drive her out of the locality and, therefore, the appellant was made a scapegoat.

24. P.W.1-P is the mother of P.W.2-G. She testified that on 18th April, 2015, P.W.2-G was at home when she went to the market around 4.30 p.m. When she received a telephone call of P.W.3-M at about 5.00 p.m, she immediately returned home. Several people had gathered at her house. P.W.2-G was scared and crying. P.W.3-M informed P.W.1-P about the incident and what she witnessed from the space of the door. P.W.2-G had also told her mother that the appellant had removed her slacks, made her to lie on the floor and thereafter, he was putting his penis in her vagina. This cannot be said to be a material contradiction in the sense that there is no medical evidence of sustaining any injuries either to the anus or vagina of P.W.2-G. I shall discuss the evidence of P.W.8- Dr. Meena in that respect in the subsequent paras. The appellant, in fact, attempted to commit penetrative sexual assault upon P.W.2- G.

25. Since, P.W.1-P did not witness the incident, yet her evidence is quite relevant in view of section 6 of the Indian Evidence Act, 1872. She had promptly lodged a First Information Report with the Police which, per say, may not be the substantive evidence, yet it had set a criminal law into motion and without wastage of time, the Investigating Officer could immediately nab the appellant and collect material evidence qua the incident in question including referring the appellant and P.W.2-G for medical examination. It is pertinent to note that the statement of P.W.2-G and P.W.4- M.M also came to be recorded under section 164 of the Cr. P.C by the Metropolitan Magistrate which is in consonance with their testimonies in the box. As such, if the testimonies of P.W.2-G, P.W.3-M and P.W.6-G.R are juxtaposed, they are quite consistent in respect of time, venue and manner of occurrence. There are absolutely no omissions or contradictions on record. It is also not in dispute that P.W.2-G was born on 26th October, 2009 and, therefore, was a child which fact has been buttressed by her birth certificate at Exhibit 33.

26. P.W.8-Dr. Meena was In-charge of Gynecology Department and sexually assaulted cases. Though she did not examine P.W.2-G who, in fact, was examined by Dr. Vaibhav Khairnare, P.W.8-Dr. Meena testified that papers of the examination report were placed before her by Dr. Vaibhav Khairnare as, due to protocol, all cases of sexual violence were reported to her.

27. As per her testimony, history given by P.W.1-P was about the incident of molestation of P.W.2-G by the appellant, who after removing the clothes of P.W.2-G and himself made her lie in a prone position. There was no history of peno-vaginal, peno-anal, peno oral intercourse given by the patient. In criminal terminology and as per the history given by the patient, there would be no question of penetration. Nevertheless, as per the legal definition, one has to see as to whether there was any such act which was construed as an offence either in view of section 4 or section 5 or for that matter, section 7 of the POCSO Act.

28. It would also be essential to consider the evidence in view of the presumption provided under section 29 of the POCSO Act. It is testified by P.W.8-Dr. Meena Saujani that there is no history of any external bleeding P.V. (per vaginal), P.R. (Per rectum). The medical expert had duly obtained consent of the victim’s mother P.W.-P before her examination. Though there were no physical signs of injuries, yet the history of touching and fondling was sufficient to constitute the offence. It is pertinent to note that the clothes of P.W.2-G were changed, she had passed urine and rinsed her mouth. There were no signs of abnormality after examination of vagina. Blood group and swab were collected from vulva and the anus. The certificate is proved at Exhibit 23. Admittedly, the reports of the medical analysis at Exhibit 6 colly and C.A report in respect of swab reveal that no men D.N.A was detected on vulva and anal swab which necessarily means that there was no ejaculation of seminal fluid. The guidelines and protocols in respect of medico legal care for survivors/victims of sexual violence issued by MoHFW are annexed at Exhibit 23. An unsuccessful attempt has been made by the defence to shatter the testimony of P.W.8-Dr. Meena.

29. Since the results of examination report issued by the Director of Forensic Science Laboratory at Exhibit 6 Colly are negative, this evidence would be insignificant so also evidence of P.W.8-Dr. Meena in assisting the prosecution for establishing a guilt against the appellant. Even otherwise, the evidence of an expert coupled with report of chemical analysis is a technical evidence which would always be used as a corroborative piece of evidence and not substantive evidence. C.A. Report, medical history and the evidence of the medical expert is of no consequences to the prosecution.

30. P.W.4-MM was summoned to act as a Panch witness obviously for the reason that he is a resident of the same chawl and was part of the crowd which had gathered at the scene. He came to know that P.W.2-G was sexually assaulted at that place. However, nothing had been seized by the Police in his presence who had prepared a spot Panchanama which is at Exhibit 16. He being the husband of P.W.3-M was suggested that because of quarrels between his wife and Vaishali Sawant, at the instance of his wife, he had put his signature over the Panchanama which he had denied.

31. P.W.5-Anita Shinde was summoned as a Panch witness in whose presence, Investigating Officer had seized clothes of P.W.2-G comprising peach coloured full T Shirt and a slack by Panchanama Exhibit 18. The evidence of this witness is formal in nature. There is no effective cross-examination of these two witnesses.

32. Baburao Pulare had testified as P.W.7, in whose presence, the Investigating Officer had seized clothes on the person of the appellant at the time of commission of the offence. It comprises full shirt with inscription “TORES”, white dirty baniyan, Grey coloured underwear of Scott company and black jeans. All these clothes were wrapped in a paper by affixing labels. Panchnama to that effect is drawn which is at Exhibit 21. The witness has identified those clothes in the box. His evidence remained intact in the cross-examination.

33. Interestingly, despite examining two defence witnesses, the appellant has not succeeded in creating any dent in the testimonies of P.W.2-G, P.W.3-M and P.W.6-G.R so also in respect of his so called false implication in the instant case due to a quarrel which had occurred long back.

34. The first defence witness is Mr. Dattaguru Parab who is the brother-in-law of the appellant (sister’s husband). According to this witness, after receiving a phone call from his aunt namely Vaishali Sawant informing about the arrest of the appellant, he went to Powai Police Station and requested the Police to inform as to what had happened. He was asked by a Police man to bring clothes of the appellant and, therefore, on 25th April, 2015, he had handed over clothes of the appellant to the Police. He also took out mobile hand set from the cupboard and handed it over to the Police. He had not uttered a single word about incident in question or anything to say about false implication of the appellant due to some rivalry.

35. Similarly, D.W.2- Rajshree Sawant who is the aunt of the appellant (mother’s sister) testified that ever since P.W.1-P and and she came to reside in Sulochanabai Chawl in 2008. There used to be quarrels between them on account of work. This witness along with P.W.1-P and one more woman used to go for work as a house maid. It is testified that P.W.3-M and P.W.1-P used to sit together and threaten this witness that they would drive her from the locality. This is nothing but a well thought story concocted by this witness. Had there been some substance in the said evidence, she could have stated the same immediately when the appellant was arrested by the Police.

36. In her cross-examination by the learned Special Public Prosecutor, she admits that she did not lodge a report against P.W.3-M or P.W.1-P. Thus, defence evidence, even on the ground of probability, does not even remotely reveal false implication of the appellant in this case.

37. P.W.9-Kadir Shaikh is a witness in whose presence, according to the prosecution, the appellant made a voluntary statement to the effect that he would show his mobile. Accordingly, a memorandum Panchanama Exhibit 27 was drawn and thereafter he led the Police team along with this witness and panch witness in a vehicle to Tunga Gaon, Powai. The appellant thereafter took out a mobile from the mezzanine floor. It was a black coloured Nokia company’s hand set which was sealed in an envelope and recovery panchanama Exhibit 27-A was drawn. The prosecution case did not go further except seizure of the said mobile hand set sans any evidence to indicate that it was a mobile which was shown to P.W.2-G for playing songs and on that pretext, she was lured and molested by the appellant.

38. As can be seen from the aforesaid discussion of facts and evidence on record, the victim P.W.2-G called the appellant as Dada, meaning thereby, she had full faith and respect towards the appellant to that of an elder brother. The appellant betrayed her trust by molesting her. It is also apparent from the aforesaid discussion that the appellant was about to commit aggravated penetrative sexual assault upon P.W.2 but due to intervention of P.W.3-M, he could not succeed in his nefarious design and, therefore, the act was in fact about to be accomplished by him since he had already started movements of his penis over the posterior part of P.W.2-G. Section 18 of the POSCO Act provides punishment for attempt to commit an offence.
“18. Punishment for attempt to commit an offence._ whoever attempt to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment of life or as the case may be, one-half of the longest term of imprisonment provided for that offence or which fine or with both”.

39. The appellant, in fact, did an attempt towards an act of committing aggravated penetrative sexual assault and, therefore, the learned trial Court has rightly appreciated all the circumstances and facts on record by passing appropriate sentence of imprisonment.

40. In the case of Madan Gopal Vs. Naval Dubey, AIR 1992 SCW, 1480, it is held thus,
“…though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are a menace to the civilized society should be mercilessly and inexorably punished in the severest terms”.
The dicta are loud and clear as to how such offenses are required to be dealt with who are a menace to the civilized society and, therefore, they should be mercilessly and inexorably punished.

41. In the case of Shyam Narain Vs. State of NCT of Delhi, 2013 Cri L J 3009, the Hon’ble Supreme Court has made following observations which are quite relevant in the given set of facts and circumstances. It would be apposite to quote paragraph 11 of the judgment which reads thus;
“11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. The sentence is to be imposed, regard being had to the nature of the offense and the manner in which the offense has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim”.

42. This is a case in which there is no question of reformation of the appellant as he was quite a grown-up male who knew the consequences of his act.

43. The learned trial Judge has elaborately and succinctly discussed each and every aspect of the case by correctly appreciating the evidence on record and reached a finding which does not warrant interference in the appeal. As such, the appeal is devoid of merits and, therefore, needs to be dismissed.

: O R D E R :

[1 The Appeal stands dismissed.
[2 The Muddemal Property shall not be disposed of until the appeal if preferred by the appellant is decided by the Supreme Court.
[PRITHVIRAJ K. CHAVAN, J.

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A.K. PATNAIK, J.

CRIMINAL APPEAL No. 854 of 2004

This is an appeal against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998.

2. The facts very briefly are that on 05.05.1992 Santosh (the deceased) was married to the appellant and on 08.03.1993 she was found dead in her in-laws house. On the same day, a written report was lodged with the police at the Shivaji Park Police Station at Alwar, by the uncle of the appellant, Ganga Sahai Saini, saying that while the deceased was boiling the water she got engulfed in flames and died. On the same day, another written report was lodged with the police by the father of the deceased, Babu Lal, that the deceased used to be harassed and humiliated in connection with demand of dowry and on receiving the information that she has died in an electric current accident, he rushed to the spot and found the body of Santosh in charred condition. On the basis of such information given by Babu Lal, the police registered FIR No.53 of 1993 for the offences under Sections 498A and 304B of the Indian Penal Code (for short ‘IPC’). The investigation was carried out and charge-sheet was filed by the police in the Court of Additional Chief Judicial Magistrate No.2, Alwar, against the appellant, Jagdish (younger brother of the appellant), Smt. Gordhani (mother of the appellant), Khem Chand (sister’s husband of the appellant), Gyatri Devi (wife of Khem Chand) and Girdhari Lal (father of Khem Chand). The case was committed to the Sessions Court and tried by the Additional Sessions Judge No.2, Alwar, as Sessions Case No.32 of 1998. The Additional Sessions Judge framed charges under Section 147, 304B and 498A IPC against all the accused persons. At the trial, the prosecution examined 16 witnesses and exhibited 31 documents. After statement of the accused under Section 313 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), no defence witness was examined. The Additional Sessions Judge convicted the appellant, Jagdish and Gordhani under Sections 498A and 304B IPC and imposed the sentence of three years rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer further three months’ simple imprisonment for the offence under Section 498A IPC and imposed the sentence of imprisonment for life and a fine of Rs.5,000/-, in default further six months’ simple imprisonment for the offence under Section 304B IPC. On appeal, the High Court acquitted Jagdish and Gordhani but confirmed the conviction of the appellant under Section 498A and 304B IPC.

3. Mr. Tara Chandra Sharma, learned counsel for the appellant, submitted that the appellant has already served out the sentence under Section 498A IPC and, therefore, his challenge in this appeal is confined to the conviction and sentence under Section 304B IPC. He submitted that the main ingredient of the offence under Section 304B IPC is that the deceased must have been subjected to cruelty or harassment in connection with any “demand for dowry” and in this case the prosecution has not established that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry. In support of his submission, he relied on the decisions of this Court in Biswajit Halder alias Babu Halder and Others v. State of West Bengal [(2008)1 SCC 202] and Durga Prasad and Another v. The State of M.P. [2010(6) SCALE 18]. He referred to the evidence of PW-2 (father of the deceased), PW-4 (mother of the deceased) and PW-5 (brother of the deceased) to show that there was no demand for dowry made by the appellant and that the appellant only wanted Rs.10,000/- to start a shop and this request for a sum of Rs.10,000/- cannot be held to be a demand for dowry.

4. He further submitted that there were, in fact, material contradictions in the testimony of PW-2, PW-4 and PW-5 with regard to the demand for dowry and, therefore, their evidence cannot be relied upon to sustain the conviction of the appellant. He submitted that in any case the evidence of PW- 2, PW-4 and PW-5 on whatever was stated to them by the deceased regarding demand for dowry and harassment or cruelty were at best hearsay evidence and not admissible either under Section 60 of the Indian Evidence Act, 1872 or under Section 32 of the Indian Evidence Act, 1872. In support of his submission, he cited Rattan Singh v. State of H.P. [(1997) 4 SCC 161].

5. He finally submitted that the court while recording the statement of the appellant under Section 313 Cr.P.C. did not put any question to enable the appellant to explain any circumstances appearing in the evidence against him. He relied on Latu Mahto and Another v. State of Bihar (Now
Jharkhand) [(2008) 8 SCC 395] to contend that circumstances about which the accused was not asked to explain cannot be used against him. According to learned counsel Mr. Sharma, this is not a case where the prosecution has been able to establish the offence under Section 304B IPC against the appellant and hence the judgment of the High Court should be set aside.

6. Dr. Manish Singhvi, learned counsel appearing for the State of Rajasthan, in reply submitted that the facts of this case would show that the deceased did not die under normal circumstances. He referred to the post-mortem report (Ex.P-21) which indicated that the deceased suffered 100% burns. He submitted that Dr. Mahendra Kr. Gupta (PW-9), who performed the autopsy, has opined that the burns on the deceased were after strangulation and throttling inasmuch as there were fractures of larynx and trachea and the larynx was found congested. He submitted that the deceased got married on 05.05.1992 and died on 08.03.1993 within ten months of the marriage and there was sufficient evidence to show that she was subjected to cruelty and harassment by the appellant and other members of his family.

7. He submitted that the evidence of PW-2, PW-4 and PW-5 establishes that there was demand for dowry of a Scooter or Rs.25,000-/. He referred to the evidence of PW-4 and PW-5 to show that the appellant used to taunt the deceased saying that she has come from a hungry house and that the appellant had himself visited the house of PW-4 and demanded a sum of Rs.10,000/-. He vehemently submitted that this is a clear case of continuous harassment of the deceased in connection with demand of dowry not only by the appellant but also by his other family members. He cited Pawan Kumar and Others
v. State of Haryana [(1998) 3 SCC 309] to contend that such taunting and teasing of a bride for not bringing dowry amount to harassment or cruelty within the meaning of Section 304B IPC.

8. In reply to the submission of Mr. Sharma that statements made by the deceased before PW-2, PW-4 and PW-5 regarding harassment and demand of dowry were not admissible either under Section 60 or under Section 32 of the Evidence Act, he submitted that this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, provided the statement related to the cause of death or exhibits circumstances leading to the death. He submitted that in the present case the statements made by the deceased to PW-2, PW-4 and PW-5 related to the cause of her death, namely, demand for dowry and therefore would be admissible under Section 32 of the Indian Evidence Act, even if the deceased while making the statement was not expecting the death. He submitted that in the present case the prosecution has firmly established that soon before her death the deceased has been subjected to cruelty or harassment by the appellant in connection with demand for dowry and therefore the Court has to presume under Section 113B of the Indian Evidence Act that the appellant has caused the dowry death and this presumption has not been rebutted by the appellant by leading any evidence.

9. Dr. Singhvi finally submitted that since there were concurrent findings of fact rendered by the trial court and the High Court that the deceased died due to asphyxia and was burnt after strangulation so as to make out a case of accident and the burns on the body of the deceased were found to be 100%, this was a case of ghastly murder and therefore not a fit case in which this Court should either set aside the conviction of the appellant or reduce the sentence imposed on him by the High Court.

10. We find that the evidence of PW-4 (mother of the deceased) is that after marriage, the deceased came several times and she also came about one month prior to her death and she used to complain about the demand of a Scooter and harassment by her mother-in-law Gordhani and that she had also told that the appellant used to taunt her that she has come from a hungry house and brought nothing and the last time when she came she stayed for two days and returned and one month thereafter she was murdered. Similar is the evidence of PW-5 (brother of the deceased) that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and she had also stated that they demanded Scooter or Rs.25,000/- for a shop and that one month prior to her death she came home and complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything and that the appellant also used to tease her. It is thus clear from the evidence of PW-4, as corroborated by the evidence of PW-5, that the deceased has made statements before them that her in-laws as well as the appellant have been demanding a Scooter or Rs.25,000/- for a shop and have been taunting and teasing her for not meeting the demand of dowry within a couple of months before her death. Such evidence of PW-4 and PW-5 with regard to the statements made by the deceased is no doubt hearsay but is admissible under clause (1) of Section 32 of the Indian Evidence Act.

11. Clause (1) of Section 32 of the Indian Evidence Act provides that statements made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, are themselves relevant facts. In the present case, the cause of death of the deceased was a question to be decided and the statements made by the deceased before PW-4 and PW-5 that the appellant used to taunt the deceased in connection with demand of a Scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to “the circumstances of the transaction which resulted in her death” within the meaning of Section 32(1) of the Indian Evidence Act.

12. In Pakala Narayana Swami v. Emperor [AIR 1939 PC 47] Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstances have some proximate relation to the actual occurrence. The test laid down by Lord Atkin has been quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra (supra) and His Lordship has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay evidence and in view of the peculiar conditions in the Indian Society has widen the sphere to avoid injustice. His Lordship has held that where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four corners of Section 32 and, therefore, admissible and the distance of time alone in such cases would not make the statements irrelevant. The difference in the English Law and the Indian Law has been reiterated in Rattan Singh v. State of H. P. (supra) and it has been held therein that even if the deceased was nowhere near expectation of death, still her statement would become admissible under Section 32 (1) of the Indian Evidence Act, though not as a dying declaration as such, provided it satisfies one of the two conditions set forth in this sub-section. The argument of Mr. Sharma, therefore, that the evidence of PW-4 and PW-5 regarding the statements made by the deceased before them are hearsay and are not admissible is misconceived.

13. The prosecution, therefore, has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in connection with demand for dowry. This Court has held in Pawan Kumar and Others v. State of
Haryana (supra) that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of Section 498A and Section 304B IPC.

14. Once it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in connection with demand for dowry, the Court has to presume that the appellant has committed the offence under Section 304B IPC. This will be clear from Section 113B of the Indian Evidence Act which states that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution in this case had led sufficient evidence before the Court to raise a presumption that the appellant had caused the dowry death of the deceased and it was, therefore, for the appellant to rebut this presumption.

15. Mr. Sharma has, however, argued that the appellant was not given such opportunities to personally explain any circumstances appearing in the evidence against him. But we find from the statement of the appellant recorded under Section 313 Cr.P.C. that the evidence of PW-4 that the deceased came to her house many times after marriage and lastly came to her house prior to her death saying that Girdhari and Khem Chand demanded a Scooter and that the appellant said that she came from a poor family, was brought to the notice of the appellant but the appellant simply denied the same. The appellant has also chosen not to examine any defence witness to rebut the presumption of dowry death against him under Section 113B of the Indian Evidence Act. The trial court and the High Court were thus right in holding that the appellant was guilty of the offence under Section 304B IPC.

16. For the offence under Section 304B IPC, the trial court has imposed the maximum punishment of life imprisonment saying that the appellant has sacrificed the newly-wed bride with cruelty and harshness to satisfy his lust of dowry illegally and hence he does not deserve any mercy and considering the nature of the offence committed by him and his conduct, he deserves the maximum punishment of life imprisonment. The High Court has only sustained the conviction and punishment of life imprisonment imposed on the appellant under Section 304B IPC. Dr. Singhvi, however, suggested that this was a case of strangulation of a bride before she was burnt and for this reason, the High Court sustained the maximum punishment of life imprisonment.

17. The fact remains that the appellant was not charged for the offence of murder under Section 302 IPC presumably because during investigation no materials were available to establish the offence under Section 302 IPC against the appellant. In Smt. Shanti and Another v. State of Haryana
[(1991) 1 SCC 371] cited by Mr. Sharma, this Court has held that where there is no evidence as to the actual part played by the accused, a minimum sentence of seven years would serve the ends of justice. In the present case, since there is no evidence as to the actual role played by the appellant in the death of the deceased, a punishment of ten years’ imprisonment would suffice in the ends of justice.

18. In the result, the appeal is partly allowed and the sentence of life imprisonment imposed on the appellant under Section 304B IPC is reduced to ten years and the impugned judgment of the High Court is modified accordingly. In case the appellant has undergone the period of ten years imprisonment, he shall be released forthwith unless he is wanted in any other case.

CRIMINAL APPEAL No. 1411 of 2010
(Arising out of SLP (Crl.) No. 4389 of 2004)

Leave granted.

2. This is an appeal filed by the State of Rajasthan against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998 acquitting Jagdish and Gordhani of the charges under Sections 498A and 304B IPC.

3. The only contention raised by Dr. Manish Singhvi, learned counsel for the State of Rajasthan, is that although the evidence on record against Amar Singh, Jagdish and Gordhani was the same, the High Court took the view that Jagdish and Gordhani have been implicated because they were members of Amar Singh’s family and that the charges against them are not proved beyond reasonable doubt. He vehemently submitted that no reasons whatsoever have been indicated by the High Court in the impugned judgment to show how the cases of Jagdish and Gordhani were different from that of Amar Singh. According to him, the High Court should have sustained the order of the trial court convicting Jagdish and Gordhani.

4. We are unable to accept this submission of Dr. Singhvi. The evidence of PW-2, PW-4 and PW-5 shows that Jagdish and Gordhani played a role in the demand of dowry of a Scooter or Rs.25,000/- for Amar Singh, but demand of dowry by itself is not an offence under Section 498A or Section 304B IPC. What is punishable under Section 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. It will be also clear from Section 113B of the Indian Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death within the meaning of Section 304B IPC. The act of subjecting a woman to cruelty or harassment for, or in connection with, any demand for dowry by the accused, therefore, must be established by the prosecution for the Court to presume that the accused has caused the dowry death.

5. PW-2 (father of the deceased) has not stated in his evidence before the Court that Jagdish and Gordhani, in any way, subjected the deceased to any harassment or cruelty. PW-4 (mother of the deceased), however, has stated that the deceased used to complain about the demand of a Scooter by Girdhari and harassment by her mother-in-law Gordhani, but PW-4 has not stated what was the exact act of Gordhani by which the deceased felt harassed. The evidence of PW-5 (brother of the deceased) is that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and they were demanding a Scooter or Rs.25,000/- for a shop and that when the deceased came home one month prior to her death, she complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything, but PW-5 has not described the exact conduct of the mother-in-law and other in- laws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW-4 is clear that Amar Singh used to taunt her that she has come from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani. A prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh’s family.

6. In Kans Raj v. State of Punjab and Others [(2000) 5 SCC 207], this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In the aforesaid case, this Court further observed that a tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits.

7. We, therefore, do not find any substance in the contention of Dr. Singhvi that the High Court should have sustained the conviction of Jagdish and Gordhani and we accordingly dismiss this appeal.

……………………..J. (R. M. Lodha)
……………………..J. (A. K. Patnaik)

New Delhi,
August 03, 2010.

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Arijit Pasayat, J.
By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are victimized by unscrupulous persons making false accusations.

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

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

Section 498A appears in Chapter XXA of IPC.
Substantive Sections 498A IPC and presumptive Section 113-B of the Indian Evidence Act. 1872 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983.
Section 498A IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

Section 498 reads as follows:
“498A: Husband or relative of husband of a woman subjecting her to crueltyWhoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section ‘cruelty’ means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Section 113-B reads as follows:-
“113-B: Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation-For the purpose of this section ‘dowry death’ shall have the same meaning as in Section have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”

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

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

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

It is well settled that mere possibility of abuse of a provisions of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administrative and application of a particular law would be done “not with an evil eye and unequal hand” (see A Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax officer and Anr., AIR (1956) SC 246.

In Budhan Choudhry and Ors. v. State of Bihar, AIR (1955) SC 191 a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

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

In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., [1997] 5 SCC 536, a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty, [1962] 3 SCR 786 this Court observed:

“The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India, [1977] 3 SCC 592 “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth, [1954] 1005.

As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, [2004] 6 SCC 672, Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors., [2003] 2 SCC 455 and Padma Sundara Rago (dead) and Ors. v. State, [2002] 3 SCC 533. while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of Law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

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

“Heard learned counsel for the petitioner.
Delay condoned.
We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002 on the facts of the case. the special leave petition is, therefore, dismissed.
At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

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

The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

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

The Writ Petition is accordingly disposed of.

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Bail Application No. 1627/2008

Judgment delivered on: 04.8.2008
Chander Bhan and Anr. …… Petitioners
Through: Mr. Rajesh Khanna Adv.
Versus
State ….. Respondent
Through: Mr. Pawan Sharma APP

HON’BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may be allowed to see the judgment? yes

2. To be referred to Reporter or not? yes

3. Whether the judgment should be reported in the Digest? yes

KAILASH GAMBHIR, J. (Oral)

By way of the present petition the petitioners who are parents- in-law of the complainant seek grant of anticipatory bail.
Mr. Sharma counsel for the State submits that allegations are serious in nature against the petitioners, therefore, the petitioners do not deserve grant of anticipatory bail.
Complainant is present in the court. She states that there is no possibility of her going back to the matrimonial home. However, the complainant is not averse to the matter being sent before the mediation cell. Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring the possibility of amicable settlement between the parties.
Let the parties appear before the Mediation Cell, Rohini Court, Delhi on 11.8.2008 at 4.00 P.M.
List the matter before the court on 23.9.2008.
Till then the petitioners shall not be arrested.
Before parting with this case, I deem it expedient and in the larger interest of saving matrimony of the couples and to restore peace between the two hostile families of husband and wife who once must have celebrated the marriage of couple with great zeal, fervor and enthusiasm but when faced with many facets and stark realities of life entangled themselves to fight a long drawn legal battle instead of building confidence, trust, understanding, mutual respect for each other and their respective families.
The offence of cruelty by husband or relatives of husband (Section 498-A) was added in 1986 to curb the vise of subjecting women to coerce them or their relatives to meet unlawful demands for dowry.
Since its enactment, this provision has been subjected to systematic and sustained attack. It has been called unfair and responsible for the victimisation of husbands by their wives and her relatives. No doubt there may be many deserving cases where women are being subjected to mental and physical cruelty at the hands of the avaricious in-laws. But such cases have to be distinguished from other cases where merely due to trivial fights and ego clashes the matrimony is facing disaster.
What is not comprehended by young minds while invoking the provisions of the likes of Section 498-A and 406 of IPC is that these provisions to a large extent have done incalculable harm in breaking matrimony of the couples.
Despite the western culture influencing the young minds of our country, still it has been seen that Indian families value their own age old traditions and culture, where, mutual respect, character and morals are still kept at a very high pedestal.
It has been noticed in diverse cases, where the brides and their family members in litigation find the doors of conciliation shut from the side of groom and his family members only on account of there having suffered the wrath of Police harassment first at the stage when matter is pending before crime against women cell and thereafter at the time of seeking grant of anticipatory or regular bail and then the ordeal of long drawn trial.
Daily, matters come before this court seeking bail and for quashing of FIR?s registered under Sections 498A/406 of the IPC. This court is of the view that it is essential to lay down some broad guidelines and to give directions in such matters in order to salvage and save the institution of marriage and matrimonial homes of the couples.

Guidelines:

1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility the hapless children are the worst victims. Before a wife moves to file a complaint with the Women Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and social worker?s working for upliftment of women should set up a desk in crime against women cell to provide them with conciliation services, so that before the State machinery is set in motion, the matter is amicably settled at that very stage. But, if ultimately even after efforts put by the social workers reconciliation seems not possible then the matter should be undertaken by the police officials of Crime against Women cell and there also, serious efforts should be made to settle the matter amicably.

2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP.
(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.
(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc should only be made after prior approval of DCP on file.
(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine manner.
(d) The endeavor of the Police should be to scrutinize complaints very carefully and then register FIR.
(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.
(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.

3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily suggest incorporation of wild allegations, or in character assassination of any of the parties or their family members whatever the case may be.
(b) Lawyers are also to endeavour to bring about amicable settlement between the parties as they are expected to discharge sacred duty as social engineers in such cases instead of making them target for monetary considerations by multiplying their cases.

4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail, maintenance, custody, divorce or other related matters shall in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the parties and as a last endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in the lives of rival parties be it by re-uniting them or even in case of their parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to avoid embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of Mediation and Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties also to themselves adopt a conciliatory approach without intervention of any outside agency and unless there are very compelling reasons, steps for launching prosecution against any spouse or his/her in-laws be not initiated just in a huff, anger, desperation or frustration.

DASTI.

KAILASH GAMBHIR, J
August 04, 2008

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