MOHD. HOSHAN, A.P. AND ANR.versusSTATE OF A.P.

A                       MOHD. HOSHAN, A.P. AND ANR.
                                          v.
                                   STATE OF A.P.

                              SEPTEMBER 16, 2002

B
              [U.C. BANERJEE AND SHIVARAJ V. PATIL, JJ.]

           Penal Code, 1860; Sections 304-B, 306 and 498-A: Abetment to suicide-
    W!fe subjected to cruelty by husband-Suicide by burning-Charges against
C   husband and his mother-Acquittal by trial Court on benefit of doubt-High
    Court o.n re-appreciation of evidence found them guilty of committing cruelty
    on deceased-wife and convicted under Section 306 and 498-A but confirmed
    acquittal under Section 304-B-On appeal, held, cruelty is essentially a question
    of fact-Mental cruelty varies from person to person depending upon the
D   sensitivity and degree of endurance to withstand such cruelty-High Court
    rightly concluded that continuous taunting ofthe deceased by accused amounted
    to mental crue/ty-Conviction confirmed but sentence modified to imprisonment
    already undergone.

          According to the pros~cution, the deceased wife was subjected to
E   cruelty by her husband (appellant No.I) and his mother (appellant No.2)
    for not bringing adequate dowry. They were continuously taunting and
    teasing her. She could not withstand such teasing and committed suicide
    by burning herself in the house of the accused. She was shifted to Hospital
    where she succumbed to burn injuries.

F        Accused-appellants were tried for offences under Sections 304-B, 306
    and 498-A IPC. Trial Court acquitted them of all the charges on benefit
    of doubt. On appeal, High Court, after re-appreciation of evidence, found
    them guilty of committing cruelty on the deceased and convicted them
    under Sections 306 and 498-A; however, it .:on firmed the ord.er of acquittal
    under Section 304-8. Hence this appeal.
G
          It was contended for the appellants that High Court committed an
    error in reversing the order of acquittal merely because it could take a
    different view.

          Disposing of the appeal, the Court
H                                         408
                         MOHD. HOSHAN v. STATE OF A.P.                       409
          HELD: I.I Trial Court committed manifest error in disbelieving the         A
     dying declaration (Exbt. P/2) and the evidence of PWs 3 to 7. The view
     taken by the trial Court in acquitting the appellants was not a reasonable
     and justifiable view which could have been taken looking to the evidence
     keeping in view the well-settled principles. 1412-D, El

           1.2. Whether one spouse has been guilty of cruelty to the other is        B
     essentially a question of fact. The impact of complaints, accusations or
     taunts on a person amounting to cruelty depends on various factors like
     the sensitivity of the indlviduai victim concerned, the social background,
     the eilvironnient, education etc. Further, mental cruelty varies from person
     to person depending on the intensity of sensitivity and the degree of           C
     courage or endurance to withstand such mental cruelty. 1411-G, HJ

           1.3. In the instant case, having regard to the facts and circumstances,
     the High Court rightly concluded that the continuous taunting or teasing
     the deceased by the appellants on one ground or the other amounted to
     mental cruelty drawing her to end her life. High Court took note of the fact    D
     that the appellants did not try to save the deceased although they were
     present when burn injuries were caused to her. [412-A, Bl

           1.4. High Court was right and justified in reversing the order of
     acquittal and convicting and sentencing the appellants for offences under
     Section 306 and 498-A IPC. However, it is just and appropriate to modify        E
     the sentence of imprisonment for the period already undergone having
     regard to the fact that the incident took place long back; that both the
     appellants were in imprisonment for about two months; and that appellant
     No.2, mother of appellant No.I, is aged 60 years. (412-E, Fl

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                      F
     871 of 1996.

          From the Judgment and Order dated 18.4.1996 of the Andhra Pradesh
     High Court in Cr!. A. No. 858 of 1992.
·~


          L. Nageswara Rao, G. Ramakrishna Prasad, K.C_, Sudersah, Jayanth . G
     Muth Raj, K.V. Ramakrishna, Mohd. Wasay Khan and S. Udaya Kumar
     Sagar for the Appellants.

           G. Prabhakar and Ms. T. Anamika for the Respondent.

           The Judgment of the Court was delivered by                                H
    410                     SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A         SHIVA RAJ V. PATIL, J. It is yet another unfortunate case of a young
    girl of 18 years whose all hopes and aspirations to live a happy married life
    were burnt and destroyed by the burn injuries caused by herself to end her
    life when the appellants subjected her to cruelty and abetted the commission
    of suicide by her within 11 months after marriage.
                                                                                      •
B          The appellants were tried for offe11ces under Sections 304-B, 306 and
    498-A of the Indian Penal Code. The learned Sessions Judge, after trial
    acquitted them of all the charges giving benefit of doubt. On appeal, the High
    Court while confirming the order of acquittal under Section 304-B of the
    IPC, set aside the order of acquittal recorded under Sections 306 and 498-A
C   and convicted and sentenced them for two years' rigorous imprisonment each
    for the said offences making the sentences to run concurrently. Thus; aggrieved
    by this judgment and order of the High Court, the appellants have filed this
    appeal before th is Court. The State has not filed any appeal against the order
    of the High Court confirming the order acquitting the appellants for the
    offence under Section 304-B IPC.
D
        The prosecution case as projected during the trial is th.at the appellant
  No. I is the son of the appellant No. 2. The deceased Razwana Parveen was
  married to the appellant No. I on 26.4.1987. Mohammed Allauddin Asir
  Mansoori (PW-3), Allauddin Mansoori (PW.4), and Rahman Bee (PW.5) are
  the brother, father and the mother of the deceased respectively. On 9.3.1988
E at about 9.30 P.M., the deceased sustained bum injuries in the house of the
  appellants where she was living. She was shifted to Osmania General Hospital
  at Hyderabad. She died at 11.00 A.M. on 12.3.1988 due to burn injuries. It
  was alleged by the prosecution that the deceased committed suicide because
  of cruel treatment of the appellants after her marriage and that the appellants
F were demanding dowry from her.
          There is no direct evidence to establish the case of the prosecution. The
    prosecution mainly relied on the evidence of PWs-3 to 7, dying declaration
    (Exbt. P2) recorded by the Magistrate V. Surender Rao (PW-I) and Exbt. P-
    12, report made to Head Constable.
G       The learned Sessions Judge, finding some minor contradictions in Exbt.
  P-2 and P-12, and that Exbt. P-2 was not recorded in the language in which
  the dying declaration was made, rejected it stating that much weight could
  not be given to it. He also doubted whether the deceased was in a fit condition
  to make such a dying declaration. The leam.id trial judge did not accept the
H case of the prosecution that scolding and taunting of the deceased by the :
I           MOHD. HOSHAN v. STATE OF A.P. [SHIVARAJ V. PATIL, J.]              411
    appellants for not preparing proper food or that she was not good looking A
    was not such a cruelty so as to push her to commit suicide. for no good
    reasons, the trial court did not acGept the evidence of PW-3 to 7. The High
    Court, on reappreciation of the l!Vldence objectively and on dislodging the
    reasons given by the trial court for il~quittal, convicted and sentenced the
    appellants. The High Court held that the triiil court was wrong in rejecting
    Exbt. P-i; tile dyihg declaration tiicorded by PW· I, the Magistrate, particularly B
    when it was attested by the doctor on duty, PW· I I. The High Court has
    noticed that Surendet Rao, PW-I, the Magistrate has testified that on 10.3.1988
    he recorded dyliig dedatation between 2.46 A.M. to 3.15 A.M. He has certified
    that he had signed it llttd had taken the endorsement of the doctor on duty
    that the deceased was ln Ii tit state of mind to make a statement; the deceased C
    had mad!! the dying declaration in question-answer form in Urdu and he had
    translated the version and recorded the declaration in English. After recording
    her· stllteltiettt, he explained the statement in Hindi to the deceased who
    admitted its correctness. Thereafter, he took the thumb impression of the
    deceased on her declaration (Exbt.P-2). In cross-examination, he has stated
    that he could read and speak in Hindi; the deceased had made statement in D
    Urdu which he could understand as Urdu and Hindi languages are almost
    similar and in Hyderabad, Urdu and Hindi languages are spoken in the same
    way, there being no much difference. PW-I I, Dr. Vidya Sagar, corroborated
    the statement of PW-I ,to the effect that the deceased was in a fit mental
    condition to make statement and that he was present when the statement was E
    recorded by the Magistrate. The High Court also did not agree with the
    reasoning of the trial court that the comment or taunting for not preparing
    good food was not a serious thing so as to say that the appellants treated the
    deceased with cruelty which made her to commit suicide. The High Court
    observed that based on evidence that continuous taunting and teasing led the


-   deceased to such a situation where she had been disgusted and went to the F
    extent of pouring kerosene on herself and burning. The High Court observed
    that continuous mental cruelty practised on the deceased was a grave and
    serious provocation for an ordinary Indian women to do what the deceased
    had done in burning herself.

          Whether one spouse has been guilty of cruelty to the other is essentially G
    a question of fact. The impact of complaints, accusations or taunts on a
    person amounting to cruelty depends on various factors like the sensitivity of
    the individual victim concerned, the social background, the environment,
    education etc. Further, mental cruelty varies from person to person depending
    on the intensity of sensitivity and .the degree of courage or endurance to H
    .412           ''
                             SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.
                   I

A withstand such mental cruelty. In other words, each case has to be decided
    on its ow.n facts to decide whether the mental cruelty was established or not.
    The High Court in the present case, having regard to the facts found and
    circumstances stated, rightly concluded that the continuous taunting or teasing
    the dccea~ed by the appellants on one ground or the other amounted to
B   mental cru~lty drawing her to end her life. As found by the learned Sessions
    Judge, out /.
                   of 11 months of married life, the deceased was forced to live in
    her parents,.., house and could live with her husband for a period of two months
    in different spells. The High Court also took note of the fact that the appellants
    did not try to save the deceased although they were present when bum injuries
    were caused
              i .
                     to her.
c       We are not impressed by the submissions made by the learned counsel
  for the appellants that the High Court committed an error in reversing the
  order of acquittal made by the trial court merely because the High Court
  could take a different view and that the reasons given by the Sessions Court
  for recording acquittal of the appellants were proper. On the other hand, the
D learned ?c>Unsel for the State made submissions supporting the impugned
  judgment and order.

          Having regard to the evidence brought on record and looking to the
    reasons recorded by the High Court as indicated in the foregoing paragraphs,
    we are of the view that the trial court committed manifest error in disbelieving
E   the dying declaration (Exbt P/2) and the evidence of PWs 3 to 7. We have
    no hesitation in holding that the view taken by the trial court in acquitting the
    appellanis was not a reasonable and justifiable view which could have been
    taken looking to the evidence keeping in view the well-settled principles. The
    High Coiirt, in our opinion, was right and justified in reversing the order of
p   acquittal and convicting and sentencing the appellants for the offences under
    Section 306 and 498-A IPC. We find no good reason to interfere with the
    same. However, we think it just and appropriate to modify the sentence of
    imprisonment for the period already undergone and order accordingly having
    regard to the fact that both the appellants were in imprisonment for about two 1
    months; the incident took place on 9.3.1988; the appellant No. 2 is the mother
G   of the appellant No. 1 and she is aged 60 years; both the appellants are on
    bail and it may not be appropriate to send them to jail again. The appeal
    stands disposed of in the above terms. The bail bonds stand cancelled.
              '1


     S.K.S.                                                     Appeal disposed of.