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CR.A/874/2009 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 874 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PARMAR
JAGDISHBHAI DHULABHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
JB PARDIWALA for Appellant(s) : 1, MR HIMANSU M
PADHYA for Appellant(s) : 1,
MR LR POOJARI APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 18/08/2010
ORAL
JUDGMENT
The
present appeal is directed against the judgment and order rendered
by the Learned Additional Sessions Judge, Fast Track Court No.2,
Patan in Sessions Case No.35/2008 recording conviction of the
appellant-accused for the offences under Sections 306 and 498(A) of
the Indian Penal Code imposing rigorous imprisonment for five years
and fine of Rs.1,000/-, in default, to undergo simple imprisonment
for three months under Section 306 of the Indian Penal Code and also
imposing rigorous imprisonment for two years and fine of Rs.500/-,
in default, to undergo simple imprisonment for one month under
Section 498(A) of the Indian Penal Code.
The
facts of the case briefly summarized are as follows:
2.1 It
is the case of the prosecution as narrated in the complaint at Exh.95
that on 06.04.2008, the deceased-wife of the accused committed
suicide by pouring kerosene over her body and set herself ablaze on
account of harassment at the hands of the accused. On the basis of
said complaint, FIR being C.R.No.I-21/2008 came to be registered with
Varahi Police Station for the offences under Sections 498(A), 307
and 323 of the Indian Penal Code. Thereafter, the investigation was
carried out.
2.2 After
the investigation was over, chargesheet was filed and the case was
committed to the Court of Sessions. Thereafter, Learned Additional
Judge framed charge against the appellant-accused for the offence
under Sections 498(A) and 302 of the Indian Penal Code vide Exh.9 and
proceeded with the trial.
2.3 In
order to bring home the charges leveled against the accused, the
prosecution has examined witnesses and has also produced several
documentary evidence.
2.4 After
the recording of evidence of prosecution witnesses was over, the
Learned Additional Sessions Judge, Fast Track Court No.2, Patan
recorded further statement of the accused person
under Section 313 of the Criminal Procedure Code.
2.5 After
hearing the learned APP as well as learned advocate for the accused,
the Learned Additional Sessions Judge, Fast Track Court No.2, Patan
acquitted
the appellant-accused under Section 302 of the Indian Penal Code and
convicted him
for the offence under Section 306 and 498(A) of the Indian Penal Code
and sentenced him as stated hereinabove.
It
is this judgment and order, which has been assailed in the present
Appeal on the grounds set out in detail in the memo of the Appeal
inter alia stating that the Learned Judge has failed to appreciate
the material and evidence on record. It is also emphasized that the
Learned Judge has failed to appreciate the charges leveled against
the accused, which cannot be said to have been established.
Therefore, the conviction recorded is erroneous.
Learned
counsel, Mr.Pardiwala for the appellant-accused at the outset
submitted that he would focus his arguments with regard to
conviction for the offence under Section 306 of the Indian Penal
Code and accepting the evidence at its face value for the offence
under Section 498(A) of the Indian Penal Code, the Court may
consider whether the conviction could be sustained or not for the
offence under Section 306 of the Indian Penal Code. Learned counsel,
Mr.Pardiwala referred to the testimony of Anishaben Jagdishbhai,
daughter of the accused as well as victim (P.W.No.5, Exh.35) and
submitted that though she is the eyewitness and has narrated about
the incident, she has been declared hostile. However, he submitted
that her testimony refers to the quarrel and the deceased is said to
have poured kerosene, at that time, the accused tried to snatch away
a match box from the deceased. He further submitted that thereafter
also, he is said to have made efforts to extinguish the fire and
taken her to the hospital. Learned counsel, Mr.Pardiwala submitted
that it would be relevant while considering the conduct of the
accused before and after the incident. He has also referred to the
testimony of P.W.No.6, viz., Gangaben Govindbhai at Exh.38, who is
mother of the deceased and submitted that her evidence would be
hearsay as she is said to have stated that the deceased had stated
her that she was set ablaze by the accused. He also referred to the
testimony of P.W.No.17, Dr.Ramlakhan Nunaman at Exh.58 and submitted
that he had examined the deceased and had recorded the history.
Learned counsel submitted that he has stated in his testimony at
Exh.58 that the deceased was having burn injuries upto 95% of second
and third degree and was also having injuries all over the body as
well as respiratory system. He also referred to the certificates,
Exh.59 & 60. He also referred to the testimony of P.W.No.9 viz.,
Dilipsinh Pruthvisinh at Exh.41, who is also stated to be a witness
and submitted that this witness has stated that when he was in room,
the deceased had quarrel with one Manjuben and tried to submit that
the deceased had a quarrel with Manjuben, who is an aunt and on that
basis, as the accused had not supported, she had a grievances.
Learned
counsel, Mr.Pardiwala again referred to the
testimony of Dr.Paresh Kanaiyalal (P.W.No.15, Exh.51) and submitted
that he is the doctor before whom the deceased was brought initially
at Radhanpur, who recorded history given by the deceased and on that
basis, certificate is given, which is at produced Exh.52 and the
case papers are produced at Exh.53. Learned counsel, Mr.Pardiwala
referred to the cross-examination and submitted that this doctor has
admitted that she was treated as indoor patient as stated in the
case papers at Exh.53. He also referred to the certificate at Exh.52
and submitted that in light of this certificate, subsequent
treatment was given and also progress note with regard to treatment
at Civil Hospital. Learned counsel, Mr.Pardiwala submitted and
emphasized that she was administered medicine including pain killer
and, hence, she might not have been in a fit state of condition to
give dying declaration, which is stated to have been recorded.
Learned counsel, Mr.Pardiwala referring to the testimony of
Dr.Ramlakhan submitted that it refers to the fact that she had been
referred for psychiatric counseling. Learned
counsel, Mr.Pardiwala submitted that she had a
family problem and used to remain upset for last 2-3 months and had
also disturbed sleep. Therefore, learned counsel, Mr.Pardiwala
submitted that while considering the aspect of abetment for suicide
and conviction for the offence under Section 306 of the Indian Penal
Code, this would be very relevant, which the Court below has failed
to appreciate. Again, he referred to the testimony of Dr.Mahamadnaim
Farukhshaikh (P.W.No.11, Exh.82) and submitted that this doctor has
also stated that she was having burn injuries to the extent of 95%
as well as on the respiratory system. He also stated that the
medicines were administered including anti-biotic and pain killers.
He, therefore, submitted that he has also stated in the
cross-examination that it was noted by the psychiatric that she had
thoughts for the suicide as she was mentally disturbed and had also
disturbed sleep. This aspects have not been considered by the Court
below and, therefore, the learned counsel, Mr.Pardiwala submitted
that the provisions of Section 306 of the Indian Penal Code may be
considered, for which, he referred to Section 306 of the Indian
Penal Code and emphasized that the ingredients for the offence
cannot be said to have been established or proved in light of this
evidence on record. Learned counsel, Mr.Pardiwala in support of his
submission referred to and relied upon the judgments reported in
2005 Cr.L.J. Sc 3439 in case of Sushil Kumar Sharma V/s.
Union of India & Ors. and emphasized observation made in
Para No.10 of the said judgment to emphasize that there is basic
difference between two sections i.e. Section 306 and Section 498(A)
of the Indian Penal Code is that of intention. Learned counsel,
Mr.Pardiwala submitted that from the evidence on record, there is no
evidence with regard to mens-rea or the intention of the accused
that he had an intention to set her ablaze or even to abet her for
committing suicide. He emphasized and submitted that though the
charge was framed for the offence under Section 302 of the Indian
Penal Code, same has not been believed or accepted. Learned counsel,
Mr.Pardiwala submitted that while appreciating on this aspect, the
Court below has failed to consider the provisions of Section 306 of
the Indian Penal Code also and has, therefore, recorded the
conviction for the offence under Section 306 of the Indian Penal
Code erroneously. Learned counsel, Mr.Pardiwala also referred to and
relied upon the judgment of this Hon’ble Court reported in 2008(2)
GLH 469 in case of Abhay Harinandan Oza V/s State of Gujarat
again referring to this very aspect of difference between two
Sections i.e. Section 306 and Section 498(A) of the Indian Penal
Code is that of intention. He referred to the observations made in
Para No.8. He also referred to and relied upon the judgment reported
in 2006(1) GLH 718 and submitted that the law has been
discussed in this judgment referring to the judgment of the Apex
Court as to when the Section 306 of the Indian Penal Code could be
attracted, for which, he emphasized the observation made in this
judgment and submitted that for the allegations about the harassment
or cruelty without further corroboration that before the incident,
there was some harassment or torture to the deceased, which had
permitted or instigated or abettor to commit suicide and, hence, the
conviction under Section 306 of the Indian Penal Code could not be
sustained. He also referred to and relied upon the judgment reported
in 2009(4) SCC 52 in case of Kishangiri Mangalgiri Goswami
V/s State of Gujarat to emphasize about the ingredients for the
offence under Section 306 of the Indian Penal Code and when it has
been said to have been abeted. He emphasized referring to the
observation in Para No.7 of the said Judgment that there must be a
proof of direct or indirect proof of incitement of committing
suicide. Learned counsel, Mr.Pardiwala submitted that the fact that
the accused-husband treated the deceased with cruelty by itself
would not be enough. Therefore, learned counsel, Mr.Pardiwala
strenuously submitted that even accepting the evidence of the
prosecution as its, the conviction for the offence under Section
498(A) of the Indian Penal Code may be justified but the impugned
judgment and order recording conviction for the offence under
Section 306 of the Indian Penal Code is erroneous. He also referred
to other judgments reported in 2002(5) SCC 371 in case of
Sanju @ Sanjay Singh Sengar V/s State of M.P. in support of
his submission.
Learned
A.P.P., Mr.Poojari referred to the testimony of the material and
evidence including the testimony of P.W.No.5 viz., Anishaben
Jagdishbhai, Exh.35, the daughter of the deceased as well as accused
and submitted that she is the eyewitness and though she has been
treated as hostile, she has narrated as to what had transpired and
has clearly stated about the quarrel on previous day as well as on
the same day morning when the deceased is said to have stated to the
accused that when other are quarreling with her then why the accused
is not taking her side. Learned A.P.P. has also referred to the
testimony of P.W.No.15, Dr.Paresh Kanaiyalal, Exh.51 and submitted
that he was discharging his duty as Medical Officer with Referal
Hospital, who had recorded the history given by the deceased. He
emphasized that he has stated about the injuries and fact that she
had extensive burn injuries and treatment was given to the deceased.
He has issued certificates at Exh.52 & 53, which suggest about
the burn injuries. He also referred to injury certificate, Exh.60,
which itself records history. He also stated that the history is
given by the deceased that because of the harassment given by the
accused, she has committed suicide and there is a reference for the
dying declaration also. Learned A.P.P. submitted that therefore yadi
was sent for recording the dying declaration which is at Exh.63 and
the endorsement of the Dr.Kinnar Rameshbhai (P.W.No.29, Exh.91) is
also there that the patient is conscious and oriented at present.
Learned A.P.P. also referred to the testimony of P.W.No.17 viz.,
Dr.Ramlakhan Nunaman, Exh.58 (Medical Officer, Civil Hospital,
Ahmedabad), who is also stated to have recorded the history, which
is stated in the injury certificate, Exh.59, which also suggest
about 95% burn injuries to the second and third degree and in that
case papers at Exh.60, she has stated that she had committed suicide
due to harassment by the accused. He referred to the testimony of
P.W.No.17 viz., Dr.Ramlakhan, Exh.58 and submitted that though this
doctor has stated that she had 95% burn injuries, she has stated
that he had sent yadi for recording dying declaration. The
Executive Magistrate, who is examined as P.W.No.18, Exh.62, has
stated that he had received yad with endorsement of the doctor, at
Exh.63 and on that basis, he had recorded the dying declaration,
Exh.64. Learned A.P.P. referred to the testimony of the Executive
Magistrate, P.W.No.18, Exh.62 and submitted that he has corroborated
the prosecution case and has clearly stated that the harassment was
caused to her, as a result of which, she is committing suicide. She
has referred to the earlier incident that she had gone away and,
thereafter, she was at Women Protection Home for some time and after
some time, compromise was arrived at and she returned to stay with
the accused. He submitted that he has also stated that the
endorsement was regarding the condition of the patient, which was
taken on the dying declaration at Exh.64. Learned A.P.P., therefore,
submitted that the dying declaration is recorded by the Executive
Magistrate, who has stated in his testimony about the condition of
the deceased that she was in a fit condition to give statement and
he has also stated that the endorsement of the doctor was also
obtained when the recording of the dying declaration was over, which
is to be found at Exh.64. He referred to Col.No.30 regarding the
incident and emphasized that as she has stated that he has not tried
to rescue her, but in fact he
had run away. Learned A.P.P., therefore, submitted that while
considering the conduct, this aspect is also required to be
considered as his conduct would be relevant immediately before and
after the incident and talk itself suggests that he tried to
extinguish the fire and save her but in fact, he had run away as
stated by the deceased herself in the dying declaration at Exh.64.
He further emphasized that this aspect has been corroborated
by the testimony of other witnesses like P.W.No.12 viz., Bhikhabhai
Manabhai, Exh.47 when this witness has stated that the daughter of
the victim had gone to call him. Similarly, P.W.No.13 viz.,
Manjulaben Virabhai, Exh.49 has also stated that Anisha had gone to
call her stating that the mother has set ablaze. Therefore, learned
A.P.P. submitted that the submission with regard to the conduct of
the accused is required to be considered with regard to the
provisions of Section 8 of the Evidence Act. He, therefore,
submitted that this conduct will have to be considered while
appreciating the entire evidence for the offence under Section 306
of the Indian Penal Code. Again, learned A.P.P. has referred to the
material and evidence and submitted that there is ample evidence in
the form of dying declaration corroborated by the testimony of
Executive Magistrate, P.W.No.18 at Exh.62, which justify the
conviction recorded by the Court below.
Learned
A.P.P. submitted that there is no quarrel that there was constant
harassment, for which, there were some quarrels in past and she had
left the house, thereafter, she stayed at Women Protection Home and
after some compromise, she had returned to stay with the accused.
She has also stated that there is no support from her parental home
as father and brother are in jail. Therefore, learned A.P.P.
submitted that it would indicate about the mental conditions in
which she was suffering from coupled with the fact that she was
ill-treated by the accused. Learned A.P.P., therefore, submitted
that she had a mental stress and on the top of that, harassment was
caused creating such an atmosphere, which led to commit suicide. He,
therefore, submitted that it cannot be said that the impugned
Judgment & Order recording conviction for the offence under
Section 306 of the Indian Penal Code is erroneous. In support of
this submission, he has referred to and relied upon the judgment of
the Hon’ble Apex Court reported in AIR 1989 SC 1061. he
submitted that in that case also, after quarrel, the deceased had
set herself on fire and the Hon’ble Apex Court has considered the
provisions of Section 306 of the Indian Penal Code and observed in
Para No.16 that it would amount to abetment. He has also referred to
and relied upon the judgment of the Hon’ble Apex Court reported in
AIR 1991 SC 1532 in case of The State of Punjab V/s Iqal
Singh & Ors. and submitted that in this case also, the
relations were strained, which led the wife to commit suicide and
again the Apex Court has considering the provisions of Section
498(A) and 306 of the Indian Penal Code has clearly observed that in
such a case the conduct of the person would tantamount to inciting
or provoking or virtually pushing the woman into a desperate act.
He, therefore, submitted that the atmosphere was created, which
ultimately led her to commit suicide and, therefore, ingredients for
the offence under Section 306 of the Indian Penal Code would be
attracted and the impugned Judgment & Order recording convict is
just and proper.
Learned
A.P.P. has also referred to and relied upon the judgment reported in
1997 SC 1830 in case of Balram Prasad Agrawal V/s State of
Bihar & Ors. and referring to the observation made in Para
No.12, he emphasized that treatment meted out to the deceased by the
accused-husband continued, which had forced her to commit suicide
like in the present case.
In
rejoinder, learned counsel, Mr.Pardiwala pointedly referred to the
testimony of P.W.No.22 at Exh.82 to emphasize about the treatment
given to her and to emphasize that she had some psychological
problem. He further submitted that apart from that, she had 95% burn
injuries and as stated by P.W.No.15 in his testimony at Exh.51, the
medicines were given including the anti-biotic and others, as a
result of which, she may not have in a fit state of condition to
give statement. He again emphasized referring to Exh.53, which is a
case papers of the Referal Hospital, Radhanpur, wherein there is a
specific note that the patient is semi-conscious and talks
irrelevant, which is also recorded in the certificate at Exh.52. He,
therefore, submitted that if that was a condition at Radhanpur then
what would have been her conditions at Civil Hospital though the
Executive Magistrate is said to have recorded the dying declaration
after obtaining necessary endorsement. In support of this
submission, he referred to and relied upon the judgmnet of the
Hon’ble Apex Court reported in AIR 1986 SC 250 in case of
State (Delhi Administration) V/s Laxman Kumar & Ors. and
emphasized the observation made in Para No.26 much emphasizing in
similar circumstances about the history sheet and the condition. He
pointedly referred to the observations that the dying declaration
stands on the same footing as other piece of evidence has to be
judged in light of surrounding circumstances and with reference to
the principles governing weighing of evidence. He, therefore,
submitted that the impugned Judgment & Order recording
conviction is erroneous.
Alternatively,
it was submitted that even if the conviction is maintained as it is,
aspect of sentence may be considered as he is having two children,
who are looked after by his brother and, therefore, it may be
considered.
In
view of the rival submissions, it is required to be considered
whether the impugned Judgment & Order recording conviction of
the accused calls for any interference or not and whether the
conviction under Section 306 of the Indian Penal Code could be
sustained or not.
The
submissions, which have been much emphasized by the learned counsel,
Mr.Pardiwala on this aspects are required to be considered in light
of the entire material and evidence. It is well accepted that the
entire evidence has to be weighed
with surrounding circumstances as it has been
emphasized referring to the judgment reported in
AIR 1986 SC
250.
Though the reference has been made to this judgment with much
emphasizing Para No.26 with reference to the appreciation of the
evidence and weighing evidence that the dying declaration is like
any other piece of evidence and has to be judged in light of the
surrounding circumstances with reference to principles governing the
weighing of evidence. It is also required to be noted that much
water has flown thereafter. In a catena of judicial pronouncement,
it has been observed that the conviction could be recorded solely
relying upon the dying declaration if it is found to be reliable and
trustworthy and it does not suffer from any basic infirmity.
Therefore,
first aspect, which is required to be considered is the evidentiary
value of the dying declaration and corroborative aspect. In the
facts and circumstances of the present case, as it is evident from
the testimony of the P.W.No.18, Exh.62 (Executive Magistrate), which
is required to be considered. He has stated that he had received
yadi at Exh.63 with an endorsement of the doctor
and he proceeded towards the hospital for recording the dying
declaration of the victim. He has stated in this testimony that the
deceased had stated about the incident that the accused had a habit
of liquor and used to beat her and driven her out, thereafter, she
was in the Women Protection Home and after some compromise, she was
brought back. This witness has further stated that the deceased had
stated that quarrel used to take place and he has also stated that
the deceased had stated that when she set herself on fire, the
accused ran away and she has specifically stated that she has
harassment in all respect. He has also stated that when the dying
declaration was over, he had obtained endorsement of the dying
declaration as regard the condition of the patient on the dying
declaration at Exh.64. The testimony of doctor, who had made
endorsement, is at Exh.91. He has stated that after the recording of
the dying declaration was over, the Executive Magistrate has asked
him to make endorsement regarding the conditions of the patient and
he had made the endorsement that the patient is conscious and
oriented at present. He has stated that he has made
this endorsement on both at yadi at Exh.63, which was sent to the
Executive Magistrate before recording dying declaration and the
endorsement made on the dying declaration at Exh.64 after it was
recorded by him. He has further clarified in the cross-examination
that the word oriented would mean that the person is able to gather
the time and place. He has also clarified about the guidelines as to
when it could be stated to be conscious and when it could be stated
as conscious and oriented. He has specifically stated that if the
patient is conscious then both are written as per the guidelines.
This testimony would rule out any such doubt or possibility raises
as regard the condition of the deceased and, therefore, the dying
declaration at Exh.64 is fully corroborated by the medical evidence
and has to be accepted. Therefore, the submission made by the
learned counsel, Mr.Pardiwala referring to this aspect about the
condition of the patient and as to whether she could be said to be
fit state of condition cannot be accepted. It is well accepted that
even if a person is having extensive burn injuries to the extent to
90-95%, still he/she could
be conscious and in a condition to make statement.
It
is also required to be appreciated that there cannot be any specific
standard or measurement on this aspect as it will depend upon the
person to person and it depends upon the capacity of the victim to
withstand the pain and the psychology. Therefore, in such a cases,
though the victim-patient could be suffering from pain yet it will
depend upon each case as regard the condition and ability to give
statement. Therefore, the submission referring to the history of the
endorsement recorded in the case papers of the Referal Hospital at
Exh.53 cannot be a ground to brush aside the dying declaration
corroborated by the medical evidence in the form of testimony of
Dr.Kinnar Rameshbhai (P.W.No.29, Exh.91), who had testified about
the conduct.
Another
facet of arguments with regard to the conviction under Section 306
of the Indian Penal Code, whether the evidence would be sufficient
to attract the provisions of Section 306 of the Indian Penal Code is
required to be considered. It is also required to be considered in
light of the evidence
and particularly the dying declaration at Exh.65 when such dying
declaration is accepted whether it would justify the conviction for
the offence under Section 306 of the Indian Penal Code. The
submissions, which have been made by both the sides referring to
Section 306 of the Indian Penal Code and much emphasize given by the
learned counsel, Mr.Pardiwala referring to the judgments reported in
his submission emphasizing that the basic difference between two
sections i.e. Section 306 and Section 498(A) of the Indian Penal
Code is that of intention is required to be considered. There cannot
be any quarrel on this aspect that both the offence under Sections
306 and 498(A) of the Indian Penal Code are two separate and
distinct offence which the statute has provided and, therefore,
naturally it has to be considered depending upon the material and
evidence as to whether the ingredients for both offence can be said
to have been fulfilled or not. Section 306 of the Indian Penal Code
reads as under :-
“306.
Abetment of suicide.- If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.”
Therefore,
what is required to be considered is whether prior to or at the time
of commission of an act, whether any act has been done to facilitate
the commission of offence, which will have to be considered in a
given set of circumstances and the evidence. The abetment actually
depends on the act of instigation or driving the person to commit
some act. Aspect of the intention will have to be inferred from the
relevant facts and evidence and the intention cannot be established
by any direct proof or the evidence as it will have to be judged
from the circumstances and the manner in which the incident has
occurred reflecting about the conduct and the intention. The facts
on record clearly establish about the matrimonial discord and
constant quarrel. It is also brought on record as to harassment
caused to her with accused having the habit of liquor and not
providing sufficiently for the domestic expenses coupled with the
fact that it had taken such a aggravated form that the deceased had
taken shelter in Women Protection Home.
It appears that she had returned after some compromise to stay with
the accused considering the children, if this aspect has been
considered, it would suggest about the constant atmosphere, which
was so hostile and inhuman that which resulted into such torture and
harassment, which became so unbearable that she was left with no
option but to commit suicide. It is also required to be appreciated
that the deceased with two young children would not have thought of
committing suicide and would not have taken such drastic steps to
end life leaving infant at the mercy of the accused especially when
he is habituated to alcohol. If these aspects which have been
brought on record are considered in order to satisfy the Court as
regards the ingredients for the offence under Section 306 of the
Indian Penal Code and abetmenet, first aspect which the Court will
have to be satisfied is that is it not an entire surrounding and
environment so created, which was not only unbearable but was so
pathetic that she could not be in a position as to what could be
done. She had also taken shelter at Women Protection Home as she was
not having sufficient support
from parental house. In these circumstances, the steps of the
deceased committing suicide or having a quarrel cannot be taken as a
routine quarrel in the matrimonial life and has to be viewed in the
background of the entire evidence.
Provisions
of Section 306, which provides for abetement of suicide is required
to be considered and Section 107 of the Indian Penal Code defines
abetement. Section 107 of the Indian Penal Code read as under :-
107.
Abetment of a thing. – A person abets the doing of a thing, who
First.
– Instigate any person to do that thing, or
Secondly.-
Engages with one or more other person or person in any conspiracy for
the doing of that conspiracy, and in order to the doing of that
thing; or
Thirdly.- Intentionally
aids, by any act or illegal omission, the doing of that thing.
Explanation
1. – A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bout to disclose,
voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that ting.
Explanation
2.- Whoever, either prior to or at the time of the commission of an
act, does anything in order to facilitate the commission of that
act, and thereby facilitate the commission thereof, is said to aid
the doing of that act.”
Therefore,
Explanation 2 suggests that whoever either prior to or at the time
of commission of act does anything in order to facilitate the
commission of the act and thereby facilitate the commission thereof
is said to aid the doing of that act. The facts would reveal as can
be seen from the evidence on record that the accused had created
circumstances which had led her to commit suicide further at the
time of incident as it is evident from the testimony of P.W.Nos.12
and 13 that the accused ran way when the deceased set herself on
fire inspite of making any attempt to rescue her. Therefore, it will
have to be considered in context of the provisions of Section 114 of
the Evidence Act. A useful reference can be made to the observation
made in a judgment of the Hon’ble Apex Court reported in 1997
SC 1830
referred to and relied upon by the learned A.P.P. on this very
aspect. The Apex Court while considering the provisions of Section
498(A) of the Indian Penal Code and cruelty has also referred to the
provisions of Section 114 of the Evidence
Act regarding the presumption and has quoted
earlier judgment reported in AIR
1997 SC 1830.
Para No.12 reads as under :
“Leaving aside
the cases of statutory presumption, the onus is upon the
prosecution to prove the different ingredients of the offence and
unless it discharges that onus, the prosecution cannot succeed.
The court may, of course, presume, as mentioned in Section 114 of
the Indian Evidence Act, the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
The illustration mentioned in that section, though taken from
different spheres of human activity, are not exhaustive. They are
based upon human experience and have to be applied in the context
of the facts of each case.
A
useful reference can be made to the observation made by the Hon’ble
Apex Court in a judgment reported in AIR
2008 SC 2108
= 2008 Cr.L.J.
SC 2562
referred to and rely upon by the learned counsel, Mr.Pardiwala. In
this judgment, the Hon’ble Apex Court has considering the provisions
of Section 306 of the Indian Penal Code dealing with the abetment of
suicide, considered the earlier judgment reported in AIR
1994 SC 1418
in case of State of West Bengal V/s Orilal Jaiswal & Anr. had
observed that “victim committing suicide was
hypersensitive to ordinary petulance, discord and differences in
domestic life quite common to the society to which the victim
belonged and such petulance discord and differences
were not expected to induce a similarly circumstanced individual in
a given society to commit suicide”. Again it has been observed
and quoted referring to Section 306 of the Indian Penal Code as
under :-
“Abetment
involves a mental process of instigating a person or intentionally
aiding that person in doing of a thing. In cases of conspiracy also
it would involve that mental process of entering into conspiracy for
the doing of that thing. More active role which can be described as
instigating or aiding the doing of a thing it required before a
person can be said to be abetting the commission of offence under
Section 306 of IPC.”
Therefore,
in order to attract Section 306 of the Indian Penal Code, there has
to be material and evidence, which suggest about the same active
role, which may be said to have aided in commission of act of
suicide. In the facts of the present case, as discussed above, the
constant quarrel creates a situation, which compelled her to
take a shelter with Women Protection Home. Further, some compromise
was arrived at and she had returned to stay with the accused. The
habit of liquor was not sufficiently providing for domestic expenses
and on top of that, regular torture and beating will have to be
considered as a cumulative effect for atmosphere created which has
led her to commit suicide. It is in this circumstances that the
Court has to consider whether the material and evidence on record
suggest that the atmosphere was so hostile and it was such a
miserable that the person left in that situation, which would have
led or compelled to commit suicide to end life. Therefore, the Court
has to closely scrutinize the material and evidence to find out
whether it was a matrimonial discord and this is in domestic life,
which is quite common or the atmosphere was so created that had made
life miserable aiding for the commission of suicide. This would
amount to aiding act of commission of suicide. Thus, some material
and evidence which can be broadly considered as harassment, cruelty,
torture but again it will have to be considered to find out a
cumulative effect
and whether such circumstances created could be said to be a normal
difference and discord of the domestic life or could be considered
as an abetment for aiding the commission of act of suicide will
depend upon the material and evidence in each case, which is
required to be appreciated on a closure scrutiny. Therefore, once
having accepted the dying declaration as reliable and considered
entire evidence, the submission made by the learned counsel,
Mr.Pardiwala that the conviction for the offence under Section 306
of the Indian Penal Code is erroneous as necessary ingredients
cannot be said to have been fulfilled is misconceived and cannot be
accepted.
Another
facet of argument referring to the act prior to and after the
incident as per Section 8 of the Evidence Act is required to be
considered. Though Anisha, P.W.No.5, the daughter of the victim as
well as accused in her testimony may have stated that the accused
had tried to save, the testimony of other witnesses like P.W.Nos.12
and 13 at Exh.47 & 48 respectively suggest that in fact, she had
gone to call them and if this testimony
of the witnesses lend corroborative to what has been stated by the
deceased in her dying declaration at Exh.64 that the accused had run
away, this would reflect mentality of not trying to save immediately
after the incident, but running away so that the act is complete. If
the intention was not there, if there was some quarrel in a heat of
passion and if the deceased had tried to set her ablaze, normal
conduct would be to make her cool down immediately before or
at-least when the incident occurred instead of running away.
Naturally, the human conduct is required that the person in such
situation should be saved or rescued. This reflects about the
conduct and also the intention or mens-rea. Therefore, in light of
the discussion made hereinabove, the submissions made by the learned
counsel, Mr.Pardiwala much emphasizing the basic difference between
two sections and offence cannot be ready accepted. There cannot be
any dispute that two offences are separate and distinct and one
would require mens-rea, which has to be again gathered from the
circumstances and evidence and as discussed above, same is
established from the cumulative effect of the
circumstances and material and evidence on record. Therefore, the
impugned judgment and order recording conviction of the
appellant-accused cannot be said to be erroneous and does not call
for any interference
In
the result, the present appeal stands dismissed. The
impugned judgment and order rendered in Sessions Case No.35/2008 by
the Learned Additional Sessions Judge, Fast Track Court No.2, Patan
recording conviction of the appellant-accused for the offences under
Sections 306 and 498(A) of the Indian Penal Code is hereby
confirmed.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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