Wednesday, 2 April 2014

Mediator/Judge forcing you to take back your Wife after false 498A/DV complaint?

Below is a judgement passed by Supreme Court for a person who was not convicted in 304B but was convicted in 498A.
Supreme Court: We set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The conviction under Section 498A of the Indian Penal Code (45 of 1860) is confirmed. However, taking note of the late evening Age of the appellant, the substantive sentence is limited to the period undergone by him during the investigation/trial.
In Almost all cases of 498A we see that people are not found guilty in 304B, but get convicted under 498A. In such cases there is no evidence except some documentary proof that there were some problems during marriage. I suggest that you should use such judgements of Supreme Court when any mediator asks you to take a law misusing wife back and without asking you to prove your innocence.
In this case, the major evidence to punish this person was: “The issue had also been brought before the Village Panchayat many times.”
When any mediator tries to force/coax you to take back your wife, clearly state:
1. “Sir, I have been termed as Criminal and my first priority is to prove my innocence, otherwise later if anything was to happen to my wife, court will term me guilty even if I have always been innocent” (Use this judgement as your reference)
2. “Once I have proved my innocence and claimed for damages and defamation, I will definitely consider your suggestion.”
3. “Please allow me to prove my innocence in the court of LAW first.”
The mediator’s argument will be “She will withdraw all cases, so what is your problem?” To that your response should be:
  1. “Sir, she is the one who filed the cases, so it is up to her to decide what she wants to do with them. I can’t advice or force her to withdraw cases. If she withdraws the cases, I would like to review the order copy and will decide then what needs to be done. Will the order state that I was innocent in the first place and she filed false fabricated cases?”
  2. “Also, what is the guarantee that she will not file similar/same false cases in future?”
3. “If tomorrow some thing was to happen to her, who will take responsibility for that? Even Supreme Court will label me guilty.”
4. “If she really trusts me, let her first make a statement in court that all the cases she filed were false/fabricated with the intent to harass me and my family; and in future she will not try to misuse laws again.”
5. “If in future she files any such false and fabricated cases, she will be liable to pay xxxx amount for the damages incurred on me.”
There is a 99% chance that such a law abusing wife will never agree with your conditions. In case she does agree with your conditions (1% chance), the ball will be in your court. You can measure the risk depending on your own experiences and her behaviours whether you want to have her back or not. If you do decide to file for divorce, you will be moving from frying pan to fire; but with documentary evidence that she had filed false/fabricated cases to harass you. Remember as per Supreme Court, filing such false cases amounts to mental cruelty.

Gurdip Singh
... Appellant (s)
State of Punjab
... Respondent (s)

1. Close to be called a centenarian, the appellant is before us challenging the conviction and sentence under Sections 498A/304B of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’).

2. Appellant is the second accused in Sessions Case No. 41/1991 on the file of Additional Sessions Judge, Amritsar. First accused is his son. The prosecution case as succinctly summarized by the High Court in the impugned judgment is extracted below:

“Harjit Kaur, daughter of Mohinder Singh was married with Mohan Singh accused. Mohinder Singh along with Hari Singh Sarpanch, who was his brother from the brotherhood, had gone to village Gharyala to see his daughter Harjit Kaur because the in-laws of Harjit Kaur were in the habit of picking up quarrels with her for bringing less dowry. The in-laws of Harjit Kaur used to pressurize her to bring scooter, refrigerator and cash from her parents. On her failure to do so, they after conspiring with each other, threatened to kill her by giving some poisonous substance. Gurdip Singh, father- in-law of Harjit Kaur, on many occasions told Harjit Kaur that in case she failed to bring the above said articles before Rabi crop, then after murdering her, he will re-marry his son. This fact was disclosed to Mohinder Singh by Harjit Kaur on many occasions but he ignored the same with the hope that Harjit Kaur may settle in her in- laws house.

The prosecution story further is that on 6.4.1990, Mohinder Singh along with Hari Singh had gone to the residential farm house of Mohan Singh accused here the dead body of Harjit Kaur was lying on the ground. No one was present in the house. Mohinder Singh suspected that his daughter Harjit Kaur had consumed some poisonous substance out of frustration or the accused have murdered her by administering her some poisonous substance. Hari Singh was deputed to look after the dead body.
Mohinder Singh made his statement before the police on 6.4.1990 on the basis of which the present case was registered.
The investigation in the case was conducted and after the completion of investigation, challan was presented against the appellants in the Court.
The accused were charge-sheeted under Sections 498- A/304-B IPC to which they pleaded not guilty and claimed trial.

To substantiate the charge against the accused, the prosecution examined PW-1 Mohinder Singh, PW-2 Hari Singh, PW-3 Gurcharan Singh, PW-4 Rishi Ram, PW-5 ASI Gulbag Singh, PW-6 Harbhajan Singh, PW-7 SI Amrik Singh and PW-8 Dr. Ram Krishan Sharma.”

3. The Sessions Court convicted both the accused under Section 498A of IPC for rigorous imprisonment for a period of two years and fine of Rs.500/- each and, in default of payment of fine, for another three months, and under Section 304B of IPC for rigorous imprisonment for a period of ten years and fine of Rs.500/- each and, in default of payment of fine, for another three months. The sentences were ordered to run concurrently.
The High Court, in appeal, maintained the conviction but reduced the sentence under Section 304B of IPC to seven years rigorous imprisonment and confirmed the rest.

4.It is reported that the husband-first accused Mohan Singh is no more.

“Dowry death” in the Indian Penal Code was introduced under Section 304B as per Act 43 of 1986. Under the said provision, if a married woman dies,
(i) on account of burns or bodily injury or dies otherwise than under normal circumstances,
(ii) such death occurs within seven years of marriage,
(iii) it is shown that she was subjected to cruelty or harassment by her husband or any relative,
(iv) such cruelty or harassment be soon before her death and
(v) such cruelty or harassment by the husband or his relative be or for or in connection with demand for dowry, such death is called dowry death under Section 304B of IPC and the husband or relative shall be presumed to have caused the dowry death. Section 498A of IPC deals with the offence of cruelty by the husband or relative. If a married woman is subjected to cruelty by the husband or his relative, he is liable for conviction under Section 498A. There is no requirement under Section 498A that the cruelty should be within seven years of marriage. It is also not invariably necessary under Section 498A that the cruelty should be in connection with the demand for dowry. It is interesting to note that Section 498A was introduced as per Act 46 of 1983 to “ suitably deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by their in-laws” and Section 304B was introduced as per Act 43 of 1986 to make the penal provisions “ more stringent and effective ”. (Emphasis supplied)

6. In this context, the background for the amendments would be a relevant reference. In the 91 st Report on Dowry Deaths and Law Reform submitted by Justice K. K. Mathew, Chairman, Law Commission of India, on 10.08.1983, it is stated at Paragraphs 1.3 to 1.5 as follows:“1.3 If, in a particular incident of dowry death, the facts are such as to satisfy the legal ingredients of an offence already known to the law, and if those facts can be proved without much difficulty, the existing criminal law can be resorted to for bringing the offender to book. In practice, however, two main impediments arise-
(i) either the facts do not fully fit into the pigeon- hole of any known offence: or
(ii) the peculiarities of the situation are such that proof of directly incriminating facts is thereby rendered difficult.

The first impediment mentioned above is aptly illustrated by the situation where a woman takes her life with her own hands, though she is driven to it by ill- treatment. This situation may not fit into any existing pigeon-hole in the list of offences recognized by the general criminal law of the country, except where there is definite proof of instigation, encouragement or other conduct that amounts to “abetment” of suicide. Though, according to newspaper reports, there have been judgments of lower courts which seem to construe “abetment” in this context widely, the position is not beyond doubt.

The second situation mentioned above finds illustration in those incidents in which even though the circumstances raise a strong suspicion that the death was not accidental, yet, proof beyond reasonable doubt may not be forthcoming that the case was really one of homicide. Thus, there is need to address oneself to the substantive criminal law as well as to the law of evidence.
1.4 Speaking of the law of evidence, it may be mentioned that  one of the devices by which the law usually tries to bridge the gulf between one fact and another , where the gulf is so wide that it cannot be crossed with the help of the normal rules of evidence, is the device of inserting presumptions .
In this sense, it is possible to consider the question whether, on the topic under discussion, any presumption rendering the proof of facts in issue less difficult, ought to be inserted into the law. 1.5 Coming to substantive criminal law, if a deficiency is found to exist in such law, it can be filled up only by creating a new offence. Before doing so, of course, the wise law maker is expected to take into account a number of aspects, including the nuances of ethics, the ever-fluctuating winds of public opinion, the Demands of law enforcement and practical realities.” (Emphasis supplied)

7. Though the expression “presumed” is not used under Section 304B of IPC, the words “shall be deemed” under Section 304B carry, literally and under law, the same meaning since the intent and context requires such attribution. Section 304B of IPC on dowry death and Section 113B of the Indian Evidence Act, 1872, on presumption, were introduced by the same Act, i.e., Act 43 of 1986, with effect from 19.11.1986, and Section 498A of IPC and Section 113A of the Evidence Act were introduced by Act 46 of 1983, with effect from 25.12.1983.
8. The amendments under the Evidence Act are only consequential to the amendments under the Dowry Prohibition Act, 1961 and the Indian Penal Code. It is significant to note that under Section 113A, the expression is “court may presume” whereas under Section 113B, the expression is “court shall presume”. The Parliament did intend the provisions to be more stringent and effective in view of the growing social evil as can be seen from the Statement of Objects and Reasons in the amending Act.

9. Being a mandatory presumption on the guilty conduct of an accused under Section 304B, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113B of the Evidence Act. Once all the ingredients are present, the presumption of innocence fades away. Yet another reference to Paragraph 1.8 in the 91 st Report of the Law Commission of India would be fruitful in this context: “1.8.
Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family: other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family.”(Emphasis supplied)

10. Having carefully gone through the entire evidence as appreciated by both the Sessions Court as well as the High Court, we are not inclined to take a different view except on one aspect, viz., the date of marriage. As far as other aspects regarding cruelty or harassment are concerned, it has clearly been proved in the evidence of PW-1 and PW-2 that the appellant/accused was also taunting the deceased demanding dowry. They were all staying in the same premises.
The issue had also been brought before the Village Panchayat many times. The deceased was even sent out from her matrimonial home on this account.
There is also evidence that the deceased had been harassed by both accused before two weeks of her death. Yet with all these, for conviction under Section 304B of IPC, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Sans the requirement of seven years, in this case, the offence would fall only under Section 498A of IPC. And for that matter, sans any of the five ingredients discussed at Paragraph 6 above herein, the offence will fall out of Section 304B of IPC. The Sessions Court, unfortunately, has not addressed this crucial aspect and has gone only on assumptions with regard to the date of marriage.
It has to be noted that the deceased had two children, the son had died earlier and there is a surviving daughter who is stated to be around seven years. Whether the said age of the daughter is at the time of evidence or at the time of the death of the deceased, is not clear. Neither PW-1, father of the deceased nor PW-2 Sarpanch or any other witness has given any evidence with regard to the date of marriage. No document whatsoever has been produced with regard to the marriage. There is no evidence even with regard to the date of birth of the children.
Also, according to PW-1 father of the deceased, the marriage had taken place five to seven years back. It has to be noted that DW-1 elder devrani /sister-in-law of the deceased had stated in her evidence that the marriage had taken place around eleven years back. Nobody has even spoken on the exact date of marriage. The death reportedly took place on 06.04.1990. The evidence was recorded in 1996. The High Court counted the eleven years from the date of recording of the evidence. However, on going through the evidence, it is not at all clear as to whether the same is with respect to the date of tendering evidence or with respect to the date of the incident.
In view of the mandatory presumption of law under Section 304B of IPC/113B of the Evidence Act, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Section 304B of IPC permits presumption of law only in a given set of facts and not presumption of fact. Fact is to be proved and then only, law will presume. In the instant case, prosecution has failed to establish the crucial fact on the death occurring within seven years of marriage.

11. Hence, we set aside the conviction of the appellant under Section 304B of the Indian Penal Code (45 of 1860). The conviction under Section 498A of the Indian Penal Code (45 of 1860) is confirmed. However, taking note of the late evening age of the appellant, the substantive sentence is limited to the period undergone by him during the investigation/trial.

12. The appeal is allowed as above.
.................................... ..................J. (SUDHANSU JYOTI  MUKHOPADHAYA)

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