Satish Kumar Batra & Ors vs State Of Haryana

Satish Kumar Batra & Ors. ....Appellants

Versus

State of Haryana ....Respondent

JUDGMENT

Dr, ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Punjab and Haryana High Court dismissing the Criminal Revision

Petition filed by the present appellants. Challenge in the Revision Petition

was to the judgment of learned Additional Sessions Judge, Sonepat, finding

1 each of the present appellants guilty of offence punishable under Section

498A of the Indian Penal Code, 1860 (in short the `IPC'). Learned Chief

Judicial Magistrate, Sonepat, had found the accused persons guilty and had

convicted them as aforenoted. In appeal learned Additional Sessions Judge

confirmed the same. Six persons were arrayed as accused persons on the

basis of information lodged by Santosh Kumari.

2. Prosecution version in a nutshell is as follows:

Marriage between Santosh Kumari and Satish Kumar (Appellant

No.1) was solemnization on 21.10.1985. According to FIR No. 695 dated

20.6.1992 that was registered in Police Station City Sonepat at the behest of

Santosh Kumari, at the time of her engagement, her parents had given

sufficient articles valued at Rs.20,000/- to her husband and other members

of his family. At the time of her marriage, various articles listed in the

complaint were handed over to the accused and in all about Rs.1,50,000/-

were spent thereon. Despite this, the persons mentioned in the complaint

were not satisfied with the articles of dowry handed over to them, with the

result that her husband Satish Kumar, mother-in-law Satya, brother-in-law

2 Sunil Kumar, father-in-law Ram Lal, his sister Ishwar Devi and Om

Parkash, brother-in-law of Ram Lal had been pressing her to bring more

dowry. Satish Kumar husband had demanded Rs.5,000/- and Rs.10,000/- for

purchase of goods for his shop which amount was given to him. In spite of

that, the petitioners were not satisfied and had been beating her on several

occasions. After the birth of the children, the petitioners turned her out of

the matrimonial home, so that her parents could be forced to spend money

on the upbringing of the children. On the birth of each of her children, her

parents had spent Rs.20,000/-. But this had not satisfied her in-laws. Om

Prakash, the brother-in-law of her father-in-law used other methods to

torture her and she bore the atrocities attributing them to her wedlock. On

01.12.1991 the appellants had tried to kill her by pouring kerosene oil on

her, but she was able to save herself by running away. The neighbours had

pacified her and assured that her in laws would behave properly in future.

Despite this assurance, there was no change in their attitude and on

03.03.1992 her husband gave her severe beating and asked her to bring

Rs.45,000/- for the purpose of taking agency and they could give only

Rs.25,000/-. On account of the beating, she started bleeding and was about

to leave for Delhi Police Station, but was dissuaded by the members of the

3 locality from doing so. The attitude of the in-laws did not change and on

21.05.1992 she was turned out from the house after being told that she

should not return to the matrimonial home, otherwise she and her children

would be done to death. She was also told that if she wanted to settle with

Satish Kumar then her parents should purchase a separate house for her. The

Stridhan was kept by them. On the basis of this complaint, formal FIR under

Sections 406 and 498-A read with section 120-B IPC was registered.

During investigation list of articles Ex.PB and letters alleged to have

been written by Santosh Kumari Ex.PD, Ex.PE, Ex.PF, Ex.PG and Ex.PH

were taken into possession vide recovery memo Ex.P5. On completion of

the investigation challan was put in Court under sections 406, 498-A IPC.

On going through the challan, the learned trial Court framed charges under

sections 406 and 498-A IPC and when the accused pleaded not guilty to the

charges, called upon the prosecution to lead evidence in support of its case.

After completion of the trial, the learned trial court acquitted the appellants

of the offence under Section 406 IPC but convicted them under Section

498A IPC and sentenced them to undergo R.I. for two years and to pay a

fine of Rs.500/- each and in default of payment of fine to further undergo

R.I. for one month.

4 Before trial was completed, Ram Lal, the father of Santosh Kumar

died and the other five persons faced trial. Each one of them was convicted

as in the case of the present appellants. They also filed appeals along with

the present appellants and their appeals were dismissed. However, the High

Court by order in a separate Criminal Revision Petition (Criminal Revision

No. 607 of 2000) directed their acquittal. Conviction under Section 498A

IPC was upheld by the High Court so far as the present appellants are

concerned. Primarily the prosecution relied upon the version of the

complainant (PW 1), mother (PW 5), and the brother (PW 6). The stand of

the appellants all through was that the evidence of these witnesses does not

inspire confidence. The High Court noted that there were lots of

improvements and false implication of two other persons. The trial court,

the First appellate court and the High Court did not accept this plea.

However, finding that the evidence was inadequate, the High Court directed

acquittal of the co-accused persons.

3. In support of the appeal learned counsel for the appellant submitted

that the courts below did not notice the inherent improbabilities in the

evidence of PWs 1, 5 & 6. Though the High Court noted that there were lots

5 of inconsistencies and improvements, yet chose to direct acquittal only of

two persons while upholding the conviction on the self-serve evidence qua

the appellants. It is submitted that appellant No.1 has already suffered

custody for more than 13 months.

4. Learned counsel for the respondent on the other hand supported the

judgment of the courts below including the High Court.

5. It is to be noted that in the first information report the thrust of

allegations was primarily directed against the acquitted accused persons i.e

Om Prakash and Ishwar Devi. They have been acquitted by the High Court.

So far as the evidence of PWs 1, 5 & 6 is concerned, it is true as noticed by

the High Court, that there were lots of improvements. But the High Court

found that even if these improvements are kept out of consideration, the

evidence was sufficient to hold the present appellants guilty. It is to be

noted that these improvements primarily related to appellant Nos.2 & 3.

Therefore, in our considered opinion the acquittal as directed qua the co-

accused persons should have also been done in the case of appellant Nos.2

6 & 3. However, the evidence is clear and cogent so far as the appellant No.1

is concerned.

6. Section 498-A appears in Chapter XX-A IPC.

7. Substantive Section 498-A IPC and presumptive Section 113-B of the

Indian Evidence Act, 1872 (in short "the Evidence Act") have been inserted

in the respective statutes by the Criminal Law (Second Amendment) Act,

1983 and by the Dowry Prohibition (Amendment) Act, 1986, respectively.

8. Section 498-A 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.

9. Section 498-A reads as follows:

"498-A. Husband or relative of husband of a

woman subjecting her to cruelty.--Whoever, being the

7 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 purposes 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."

10. Section 113-B reads as follows:

8

"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 had 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

304-B of Indian Penal Code (45 of 1860)."

11. 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 are required to be established in order to

bring home the application of Section 498-A IPC. Cruelty has been defined

in the Explanation for the purpose of Section 498-A. It is to be noted that

Sections 304-B and 498-A 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

9 Explanation to Section 498-A 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 498-A under which "cruelty" by itself amounts

to an offence.

12. The object for which Section 498-A IPC was introduced is amply

reflected in the Statement of Objects and Reasons while enacting the

Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated

therein the increase in the 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 examine 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, constitute only a small fraction involving such cruelty.

Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,

1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not

only with cases of dowry deaths but also cases of cruelty to married women

10 by the husband, in-laws and relatives. The avowed object is to combat the

menace of dowry death and cruelty.

13. One other provision which is relevant to be noted is Section 306 IPC.

The basic difference between the two sections i.e. Section 306 and Section

498-A is that of intention. Under the latter, cruelty committed by the

husband or his relations drag the woman concerned to commit suicide,

while under the former provision suicide is abetted and intended.

14. It is well settled that mere possibility of abuse of a provision of law

does not per se invalidate a legislation. It must be presumed, unless the

contrary is proved, that administration and application of a particular law

would be done "not with an evil eye and unequal hand". (See A. Thangal

Kunju Musaliar v. M. Venkatichalam Potti (1955 (2) SCR 1196))

15. In Budhan Choudhry v. State of Bihar (1955 (1) SCR 1045) a

contention was raised that a provision of law may not be discriminatory but

it may lend itself to abuse bringing about discrimination between the

persons similarly situated. This Court repelled the contention holding that

11 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.

16. From the decided cases in India as well as in the 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 to the

person aggrieved.

17. In Mafatlal Industries Ltd. v. Union of India (1997 (5) SCC 536) a

Bench of nine 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: (SCR p. 825)

12 "The possibility of abuse of a statute otherwise

valid does not impart to it any element of invalidity."

18. It was said in State of Rajasthan v. Union of India(1977 (3) SCC

592): (SCC p. 658, para 147)

"It must be remembered that merely because

power may sometime 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 Commr., H.R.E. v. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt (1954 SCR 1005).

19. As observed in Maulavi Hussein Haji Abraham Umarji v. State of

Gujara ((2004 (6) SCC 672), Unique Butyle Tube Industries (P) Ltd. v. U.P.

13 Financial Corpn. (2003 (2) SCC 455) and Padma Sundara Rao v. State of

T.N. ((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.

20. In the instant case the evidence of PWs 1, 5 & 6 clearly establish the

accusations so far as the accused appellant No.1 i.e. Satish Kumar is

concerned and therefore we find nothing infirm in the judgment of the High

Court in upholding the conviction of accused appellant Satish Kumar. The

sentence imposed was two years. It is on record that he has undergone

sentence of more than 13 months. He has been released on bail pursuant to

order dated 9.7.2001. Therefore, while upholding the conviction, sentence is

reduced to the period already undergone. So far as the appellant nos.2 & 3

i.e. Sunil Kumar and Satya Devi are concerned, the prosecution has not been

able to establish the accusations so far as they are concerned. Their appeal

is accepted and the conviction is set aside. The bail bonds executed by them

for giving effect to the order dated 9.7.2001 shall stand discharged.

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22. The appeal is disposed of accordingly.

................................................... ..J. (Dr. ARIJIT PASAYAT)

................................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi;

April 01, 2009

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