{"id":245253,"date":"2010-12-13T00:00:00","date_gmt":"2010-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/parmar-vs-unknown-on-13-december-2010"},"modified":"2017-01-26T18:34:06","modified_gmt":"2017-01-26T13:04:06","slug":"parmar-vs-unknown-on-13-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/parmar-vs-unknown-on-13-december-2010","title":{"rendered":"Parmar vs Unknown on 13 December, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Parmar vs Unknown on 13 December, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/874\/2009\t 29\/ 29\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 874 of 2009\n \n\n \nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\t\t:\tSd\/-\n \n=======================================================\n\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\n=======================================================\n\n\n \n\nPARMAR\nJAGDISHBHAI DHULABHAI - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=======================================================\nAppearance : \nMR\nJB PARDIWALA for Appellant(s) : 1,                 MR HIMANSU M\nPADHYA for Appellant(s) : 1, \nMR LR POOJARI APP for Opponent(s) :\n1, \n======================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 18\/08\/2010\n \n\nORAL\nJUDGMENT<\/pre>\n
The
\n\tpresent appeal is directed against the judgment and order rendered
\n\tby the Learned Additional Sessions Judge, Fast Track Court No.2,
\n\tPatan in Sessions Case No.35\/2008 recording conviction of the
\n\tappellant-accused for the offences under Sections 306 and 498(A) of
\n\tthe Indian Penal Code imposing rigorous imprisonment for five years
\n\tand fine of Rs.1,000\/-, in default, to undergo simple imprisonment
\n\tfor three months under Section 306 of the Indian Penal Code and also
\n\timposing rigorous imprisonment for two years and fine of Rs.500\/-,
\n\tin default, to undergo simple imprisonment for one month under
\n\tSection 498(A) of the Indian Penal Code.\n<\/p>\n
The
\n\tfacts of the case briefly summarized are as follows:\n<\/p>\n
2.1\tIt
\nis the case of the prosecution as narrated in the complaint at Exh.95
\nthat on 06.04.2008, the deceased-wife of the accused committed
\nsuicide by pouring kerosene over her body and set herself ablaze on
\naccount of harassment at the hands of the accused. On the basis of
\nsaid complaint, FIR being C.R.No.I-21\/2008 came to be registered with
\nVarahi Police Station for the offences under Sections  498(A), 307
\nand 323 of the Indian Penal Code. Thereafter, the investigation was
\ncarried out.\n<\/p>\n
2.2\tAfter
\nthe investigation was over, chargesheet was filed and the case was
\ncommitted to the Court of Sessions. Thereafter, Learned Additional
\nJudge framed charge against the appellant-accused for the offence
\nunder Sections 498(A) and 302 of the Indian Penal Code vide Exh.9 and
\nproceeded with the trial.\n<\/p>\n
2.3\tIn
\norder to bring home the charges leveled against the accused, the
\nprosecution has examined witnesses and has also produced several
\ndocumentary evidence.\n<\/p>\n
2.4\tAfter
\nthe recording of evidence of prosecution witnesses was over, the
\nLearned Additional Sessions Judge, Fast Track Court No.2, Patan
\nrecorded further statement of the accused person
\nunder Section 313 of the Criminal Procedure Code.\n<\/p>\n
2.5\tAfter
\nhearing the learned APP as well as learned advocate for the accused,
\nthe Learned Additional Sessions Judge, Fast Track Court No.2, Patan
\nacquitted
\nthe appellant-accused under Section 302 of the Indian Penal Code and
\nconvicted him
\nfor the offence under Section 306 and 498(A) of the Indian Penal Code
\nand sentenced him as stated hereinabove.\n<\/p>\n
It
\n\tis this judgment and order, which has been assailed in the present
\n\tAppeal on the grounds set out in detail in the memo of the Appeal
\n\tinter alia stating that the Learned Judge has failed to appreciate
\n\tthe material and evidence on record. It is also emphasized that the
\n\tLearned Judge has failed to appreciate the charges leveled against
\n\tthe accused, which cannot be said to have been established.
\n\tTherefore, the conviction recorded is erroneous.\n<\/p>\n
Learned
\n\tcounsel, Mr.Pardiwala for the appellant-accused at the outset
\n\tsubmitted that he would focus his arguments with regard to
\n\tconviction for the offence under Section 306 of the Indian Penal
\n\tCode and accepting the evidence at its face value for the offence
\n\tunder Section 498(A) of the Indian Penal Code, the Court may
\n\tconsider whether the conviction could be sustained or not for the
\n\toffence under Section 306 of the Indian Penal Code. Learned counsel,
\n\tMr.Pardiwala referred to the testimony of Anishaben Jagdishbhai,
\n\tdaughter of the accused as well as victim (P.W.No.5, Exh.35) and
\n\tsubmitted that though she is the eyewitness and has narrated about
\n\tthe incident, she has been declared hostile. However, he submitted
\n\tthat her testimony refers to the quarrel and the deceased is said to
\n\thave poured kerosene, at that time, the accused tried to snatch away
\n\ta match box from the deceased. He further submitted that thereafter
\n\talso, he is said to have made efforts to extinguish the fire and
\n\ttaken her to the hospital. Learned counsel, Mr.Pardiwala submitted
\n\tthat it would be relevant while considering the conduct of the
\n\taccused before and after the incident. He has also referred to the
\n\ttestimony of P.W.No.6, viz., Gangaben Govindbhai at Exh.38, who is
\n\tmother of the deceased and submitted that her evidence would be
\n\thearsay as she is said to have stated that the deceased had stated
\n\ther that she was set ablaze by the accused. He also referred to the
\n\ttestimony of P.W.No.17, Dr.Ramlakhan Nunaman at Exh.58 and submitted
\n\tthat he had examined the deceased and had recorded the history.
\n\tLearned counsel submitted that he has stated in his testimony at
\n\tExh.58 that the deceased was having burn injuries upto 95% of second
\n\tand third degree and was also having injuries all over the body as
\n\twell as respiratory system. He also referred to the certificates,
\n\tExh.59 & 60. He also referred to the testimony of P.W.No.9 viz.,
\n\tDilipsinh Pruthvisinh at Exh.41, who is also stated to be a witness
\n\tand submitted that this witness has stated that when he was in room,
\n\tthe deceased had quarrel with one Manjuben and tried to submit that
\n\tthe deceased had a quarrel with Manjuben, who is an aunt and on that
\n\tbasis, as the accused had not supported, she had a grievances.
\n\tLearned
\n\tcounsel, Mr.Pardiwala again referred to the
\n\ttestimony of Dr.Paresh Kanaiyalal (P.W.No.15, Exh.51) and submitted
\n\tthat he is the doctor before whom the deceased was brought initially
\n\tat Radhanpur, who recorded history given by the deceased and on that
\n\tbasis, certificate is given, which is at produced Exh.52 and the
\n\tcase papers are produced at Exh.53. Learned counsel, Mr.Pardiwala
\n\treferred to the cross-examination and submitted that this doctor has
\n\tadmitted that she was treated as indoor patient as stated in the
\n\tcase papers at Exh.53. He also referred to the certificate at Exh.52
\n\tand submitted that in light of this certificate, subsequent
\n\ttreatment was given and also progress note with regard to treatment
\n\tat Civil Hospital. Learned counsel, Mr.Pardiwala submitted and
\n\temphasized that she was administered medicine including pain killer
\n\tand, hence, she might not have been in a fit state of condition to
\n\tgive dying declaration, which is stated to have been recorded.
\n\tLearned counsel, Mr.Pardiwala referring to the testimony of
\n\tDr.Ramlakhan submitted that it refers to the fact that she had been
\n\treferred for psychiatric counseling. Learned
\n\tcounsel, Mr.Pardiwala submitted that she had a
\n\tfamily problem and used to remain upset for last 2-3 months and had
\n\talso disturbed sleep. Therefore, learned counsel, Mr.Pardiwala
\n\tsubmitted that while considering the aspect of abetment for suicide
\n\tand conviction for the offence under Section 306 of the Indian Penal
\n\tCode, this would be very relevant, which the Court below has failed
\n\tto appreciate. Again, he referred to the testimony of Dr.Mahamadnaim
\n\tFarukhshaikh (P.W.No.11, Exh.82) and submitted that this doctor has
\n\talso stated that she was having burn injuries to the extent of 95%
\n\tas well as on the respiratory system. He also stated that the
\n\tmedicines were administered including anti-biotic and pain killers.
\n\tHe, therefore, submitted that he has also stated in the
\n\tcross-examination that it was noted by the psychiatric that she had
\n\tthoughts for the suicide as she was mentally disturbed and had also
\n\tdisturbed sleep. This aspects have not been considered by the Court
\n\tbelow and, therefore, the learned counsel, Mr.Pardiwala submitted
\n\tthat the provisions of Section 306 of the Indian Penal Code may be
\n\tconsidered, for which, he referred to Section 306 of the Indian
\n\tPenal Code and emphasized that the ingredients for the offence
\n\tcannot be said to have been established or proved in light of this
\n\tevidence on record. Learned counsel, Mr.Pardiwala in support of his
\n\tsubmission referred to and relied upon the judgments reported in
\n\t2005 Cr.L.J. Sc 3439 in case of Sushil Kumar Sharma V\/s.
\n\tUnion of India & Ors. and emphasized observation made in
\n\tPara No.10 of the said judgment to emphasize that there is basic
\n\tdifference between two sections i.e. Section 306 and Section 498(A)
\n\tof the Indian Penal Code is that of intention. Learned counsel,
\n\tMr.Pardiwala submitted that from the evidence on record, there is no
\n\tevidence with regard to mens-rea or the intention of the accused
\n\tthat he had an intention to set her ablaze or even to abet her for
\n\tcommitting suicide. He emphasized and submitted that though the
\n\tcharge was framed for the offence under Section 302 of the Indian
\n\tPenal Code, same has not been believed or accepted. Learned counsel,
\n\tMr.Pardiwala submitted that while appreciating on this aspect, the
\n\tCourt below has failed to consider the provisions of Section 306 of
\n\tthe Indian Penal Code also and has, therefore, recorded the
\n\tconviction for the offence under Section 306 of the Indian Penal
\n\tCode erroneously. Learned counsel, Mr.Pardiwala also referred to and
\n\trelied upon the judgment of this Hon’ble Court reported in 2008(2)
\n\tGLH 469 in case of Abhay Harinandan Oza V\/s State of Gujarat
\n\tagain referring to this very aspect of difference between two
\n\tSections i.e. Section 306 and Section 498(A) of the Indian Penal
\n\tCode is that of intention. He referred to the observations made in
\n\tPara No.8. He also referred to and relied upon the judgment reported
\n\tin 2006(1) GLH 718 and submitted that the law has been
\n\tdiscussed in this judgment referring to the judgment of the Apex
\n\tCourt as to when the Section 306 of the Indian Penal Code could be
\n\tattracted, for which, he emphasized the observation made in this
\n\tjudgment and submitted that for the allegations about the harassment
\n\tor cruelty without further corroboration that before the incident,
\n\tthere was some harassment or torture to the deceased, which had
\n\tpermitted or instigated or abettor to commit suicide and, hence, the
\n\tconviction under Section 306 of the Indian Penal Code could not be
\n\tsustained. He also referred to and relied upon the judgment reported
\n\tin 2009(4) SCC 52 in case of Kishangiri Mangalgiri Goswami
\n\tV\/s State of Gujarat to emphasize about the ingredients for the
\n\toffence under Section 306 of the Indian Penal Code and when it has
\n\tbeen said to have been abeted. He emphasized referring to the
\n\tobservation in Para No.7 of the said Judgment that there must be a
\n\tproof of direct or indirect proof of incitement of committing
\n\tsuicide. Learned counsel, Mr.Pardiwala submitted that the fact that
\n\tthe accused-husband treated the deceased with cruelty by itself
\n\twould not be enough. Therefore, learned counsel, Mr.Pardiwala
\n\tstrenuously submitted that even accepting the evidence of the
\n\tprosecution as its, the conviction for the offence under Section
\n\t498(A) of the Indian Penal Code may be justified but the impugned
\n\tjudgment and order recording conviction for the offence under
\n\tSection 306 of the Indian Penal Code is erroneous. He also referred
\n\tto other judgments reported in 2002(5) SCC 371 in case of
\n\tSanju @ Sanjay Singh Sengar V\/s State of M.P. in support of
\n\this submission.\n<\/p>\n
Learned
\n\tA.P.P., Mr.Poojari referred to the testimony of the material and
\n\tevidence including the testimony of P.W.No.5 viz., Anishaben
\n\tJagdishbhai, Exh.35, the daughter of the deceased as well as accused
\n\tand submitted that she is the eyewitness and though she has been
\n\ttreated as hostile, she has narrated as to what had transpired and
\n\thas clearly stated about the quarrel on previous day as well as on
\n\tthe same day morning when the deceased is said to have stated to the
\n\taccused that when other are quarreling with her then why the accused
\n\tis not taking her side. Learned A.P.P. has also referred to the
\n\ttestimony of P.W.No.15, Dr.Paresh Kanaiyalal, Exh.51 and submitted
\n\tthat he was discharging his duty as Medical Officer with Referal
\n\tHospital, who had recorded the history given by the deceased. He
\n\temphasized that he has stated about the injuries and fact that she
\n\thad extensive burn injuries and treatment was given to the deceased.
\n\tHe has issued certificates at Exh.52 & 53, which suggest about
\n\tthe burn injuries. He also referred to injury certificate, Exh.60,
\n\twhich itself records history. He also stated that the history is
\n\tgiven by the deceased that because of the harassment given by the
\n\taccused, she has committed suicide and there is a reference for the
\n\tdying declaration also. Learned A.P.P. submitted that therefore yadi
\n\twas sent for recording the dying declaration which is at Exh.63 and
\n\tthe endorsement of the Dr.Kinnar Rameshbhai (P.W.No.29, Exh.91) is
\n\talso there that the patient is conscious and oriented at present.
\n\tLearned A.P.P. also referred to the testimony of P.W.No.17 viz.,
\n\tDr.Ramlakhan Nunaman, Exh.58 (Medical Officer, Civil Hospital,
\n\tAhmedabad), who is also stated to have recorded the history, which
\n\tis stated in the injury certificate, Exh.59, which also suggest
\n\tabout 95% burn injuries to the second and third degree and in that
\n\tcase papers at Exh.60, she has stated that she had committed suicide
\n\tdue to harassment by the accused. He referred to the testimony of
\n\tP.W.No.17 viz., Dr.Ramlakhan, Exh.58 and submitted that though this
\n\tdoctor has stated that she had 95% burn injuries, she has stated
\n\tthat he had sent yadi  for recording dying declaration. The
\n\tExecutive Magistrate, who is examined as P.W.No.18, Exh.62, has
\n\tstated that he had received yad with endorsement of the doctor, at
\n\tExh.63 and on that basis, he had recorded the dying declaration,
\n\tExh.64. Learned A.P.P. referred to the testimony of the Executive
\n\tMagistrate, P.W.No.18, Exh.62 and submitted that he has corroborated
\n\tthe prosecution case and has clearly stated that the harassment was
\n\tcaused to her, as a result of which, she is committing suicide. She
\n\thas referred to the earlier incident that she had gone away and,
\n\tthereafter, she was at Women Protection Home for some time and after
\n\tsome time, compromise was arrived at and she returned to stay with
\n\tthe accused. He submitted that he has also stated that the
\n\tendorsement was regarding the condition of the patient, which was
\n\ttaken on the dying declaration at Exh.64. Learned A.P.P., therefore,
\n\tsubmitted that the dying declaration is recorded by the Executive
\n\tMagistrate, who has stated in his testimony about the condition of
\n\tthe deceased that she was in a fit condition to give statement and
\n\the has also stated that the endorsement of the doctor was also
\n\tobtained when the recording of the dying declaration was over, which
\n\tis to be found at Exh.64. He referred to Col.No.30 regarding the
\n\tincident and emphasized that as she has stated that he has not tried
\n\tto rescue her, but in fact he
\n\thad run away. Learned A.P.P., therefore, submitted that while
\n\tconsidering the conduct, this aspect is also required to be
\n\tconsidered as his conduct would be relevant immediately before and
\n\tafter the incident and talk itself suggests that he tried to
\n\textinguish the fire and save her but in fact, he had run away as
\n\tstated by the deceased herself in the dying declaration at Exh.64.
\n\tHe further emphasized that this aspect has been corroborated
\n\tby the testimony of other witnesses like P.W.No.12 viz., Bhikhabhai
\n\tManabhai, Exh.47 when this witness has stated that the daughter of
\n\tthe victim had gone to call him. Similarly, P.W.No.13 viz.,
\n\tManjulaben Virabhai, Exh.49 has also stated that Anisha had gone to
\n\tcall her stating that the mother has set ablaze. Therefore, learned
\n\tA.P.P. submitted that the submission with regard to the conduct of
\n\tthe accused is required to be considered with regard to the
\n\tprovisions of Section 8 of the Evidence Act. He, therefore,
\n\tsubmitted that this conduct will have to be considered while
\n\tappreciating the entire evidence for the offence under Section 306
\n\tof the Indian Penal Code. Again, learned A.P.P. has referred to the
\n\tmaterial and evidence and submitted that there is ample evidence in
\n\tthe form of dying declaration corroborated by the testimony of
\n\tExecutive Magistrate, P.W.No.18 at Exh.62, which justify the
\n\tconviction recorded by the Court below.\n<\/p>\n
Learned
\n\tA.P.P. submitted that there is no quarrel that there was constant
\n\tharassment, for which, there were some quarrels in past and she had
\n\tleft the house, thereafter, she stayed at Women Protection Home and
\n\tafter some compromise, she had returned to stay with the accused.
\n\tShe has also stated that there is no support from her parental home
\n\tas father and brother are in jail. Therefore, learned A.P.P.
\n\tsubmitted that it would indicate about the mental conditions in
\n\twhich she was suffering from coupled with the fact that she was
\n\till-treated by the accused. Learned A.P.P., therefore, submitted
\n\tthat she had a mental stress and on the top of that, harassment was
\n\tcaused creating such an atmosphere, which led to commit suicide. He,
\n\ttherefore, submitted that it cannot be said that the impugned
\n\tJudgment & Order recording conviction for the offence under
\n\tSection 306 of the Indian Penal Code is erroneous. In support of
\n\tthis submission, he has referred to and relied upon the judgment of
\n\tthe Hon’ble Apex Court reported in AIR 1989 SC 1061. he
\n\tsubmitted that in that case also, after quarrel, the deceased had
\n\tset herself on fire and the Hon’ble Apex Court has considered the
\n\tprovisions of Section 306 of the Indian Penal Code and observed in
\n\tPara No.16 that it would amount to abetment. He has also referred to
\n\tand relied upon the judgment of the Hon’ble Apex Court reported in
\n\tAIR 1991 SC 1532 in case of The State of Punjab V\/s Iqal
\n\tSingh & Ors. and submitted that in this case also, the
\n\trelations were strained, which led the wife to commit suicide and
\n\tagain the Apex Court has considering the provisions of Section
\n\t498(A) and 306 of the Indian Penal Code has clearly observed that in
\n\tsuch a case the conduct of the person would tantamount to inciting
\n\tor provoking or virtually  pushing the woman into a desperate act.
\n\tHe, therefore, submitted that the atmosphere was created, which
\n\tultimately led her to commit suicide and, therefore, ingredients for
\n\tthe offence under Section 306 of the Indian Penal Code would be
\n\tattracted and the impugned Judgment & Order recording convict is
\n\tjust and proper.\n<\/p>\n
Learned
\n\tA.P.P. has also referred to and relied upon the judgment reported in
\n\t1997 SC 1830 in case of Balram Prasad Agrawal V\/s State of
\n\tBihar & Ors. and referring to the observation made in Para
\n\tNo.12, he emphasized that treatment meted out to the deceased by the
\n\taccused-husband continued, which had forced her to commit suicide
\n\tlike in the present case.\n<\/p>\n
In
\n\trejoinder, learned counsel, Mr.Pardiwala pointedly referred to the
\n\ttestimony of P.W.No.22 at Exh.82 to emphasize about the treatment
\n\tgiven to her and to emphasize that she had some psychological
\n\tproblem. He further submitted that apart from that, she had 95% burn
\n\tinjuries and as stated by P.W.No.15 in his testimony at Exh.51, the
\n\tmedicines were given including the anti-biotic and others, as a
\n\tresult of which, she may not have in a fit state of condition to
\n\tgive statement. He again emphasized referring to Exh.53, which is a
\n\tcase papers of the Referal Hospital, Radhanpur, wherein there is a
\n\tspecific note that the patient is semi-conscious and talks
\n\tirrelevant, which is also recorded in the certificate at Exh.52. He,
\n\ttherefore, submitted that if that was a condition at Radhanpur then
\n\twhat would have been her conditions at Civil Hospital though the
\n\tExecutive Magistrate is said to have recorded the dying declaration
\n\tafter obtaining necessary endorsement. In support of this
\n\tsubmission, he referred to and relied upon the judgmnet of the
\n\tHon’ble Apex Court reported in AIR 1986 SC 250 in case of
\n\tState (Delhi Administration) V\/s Laxman Kumar & Ors. and
\n\temphasized the observation made in Para No.26 much emphasizing in
\n\tsimilar circumstances about the history sheet and the condition. He
\n\tpointedly referred to the observations that the dying declaration
\n\tstands on the same footing as other piece of evidence has to be
\n\tjudged in light of surrounding circumstances and with reference to
\n\tthe principles governing weighing of evidence. He, therefore,
\n\tsubmitted that the impugned Judgment & Order recording
\n\tconviction is erroneous.\n<\/p>\n
Alternatively,
\n\tit was submitted that even if the conviction is maintained as it is,
\n\taspect of sentence may be considered as he is having two children,
\n\twho are looked after by his brother and, therefore, it may be
\n\tconsidered.\n<\/p>\n
In
\n\tview of the rival submissions, it is required to be considered
\n\twhether the impugned Judgment & Order recording conviction of
\n\tthe accused calls for any interference or not and whether the
\n\tconviction under Section 306 of the Indian Penal Code could be
\n\tsustained or not.\n<\/p>\n
The
\n\tsubmissions, which have been much emphasized by the learned counsel,
\n\tMr.Pardiwala on this aspects are required to be considered in light
\n\tof the entire material and evidence. It is well accepted that the
\n\tentire evidence has to be weighed
\n\twith surrounding circumstances as it has been
\n\temphasized referring to the judgment reported in
\n\tAIR 1986 SC\n<\/p>\n
\t250.
\n\tThough the reference has been made to this judgment with much
\n\temphasizing Para No.26 with reference to the appreciation of the
\n\tevidence and weighing evidence that the dying declaration is like
\n\tany other piece of evidence and has to be judged in light of the
\n\tsurrounding circumstances with reference to principles governing the
\n\tweighing of evidence. It is also required to be noted that much
\n\twater has flown thereafter. In a catena of judicial pronouncement,
\n\tit has been observed that the conviction could be recorded solely
\n\trelying upon the dying declaration if it is found to be reliable and
\n\ttrustworthy and it does not suffer from any basic infirmity.\n<\/p>\n
Therefore,
\n\tfirst aspect, which is required to be considered is the evidentiary
\n\tvalue of the dying declaration and corroborative aspect. In the
\n\tfacts and circumstances of the present case, as it is evident from
\n\tthe testimony of the P.W.No.18, Exh.62 (Executive Magistrate), which
\n\tis required to be considered. He has stated that he had received
\n\tyadi at Exh.63 with an endorsement of the doctor
\n\tand he proceeded towards the hospital for recording the dying
\n\tdeclaration of the victim. He has stated in this testimony that the
\n\tdeceased had stated about the incident that the accused had a habit
\n\tof liquor and used to beat her and driven her out, thereafter, she
\n\twas in the Women Protection Home and after some compromise, she was
\n\tbrought back. This witness has further stated that the deceased had
\n\tstated that quarrel used to take place and he has also stated that
\n\tthe deceased had stated that when she set herself on fire, the
\n\taccused ran away and she has specifically stated that she has
\n\tharassment in all respect. He has also stated that when the dying
\n\tdeclaration was over, he had obtained endorsement of the dying
\n\tdeclaration as regard the condition of the patient on the dying
\n\tdeclaration at Exh.64. The testimony of doctor, who had made
\n\tendorsement, is at Exh.91. He has stated that after the recording of
\n\tthe dying declaration was over, the Executive Magistrate has asked
\n\thim to make endorsement regarding the conditions of the patient and
\n\the had made the endorsement that the patient is conscious and
\n\toriented at present. He has stated that he has made
\n\tthis endorsement on both at yadi at Exh.63, which was sent to the
\n\tExecutive Magistrate before recording dying declaration and the
\n\tendorsement made on the dying declaration at Exh.64 after it was
\n\trecorded by him. He has further clarified in the cross-examination
\n\tthat the word oriented would mean that the person is able to gather
\n\tthe time and place. He has also clarified about the guidelines as to
\n\twhen it could be stated to be conscious and when it could be stated
\n\tas conscious and oriented. He has specifically stated that if the
\n\tpatient is conscious then both are written as per the guidelines.
\n\tThis testimony would rule out any such doubt or possibility raises
\n\tas regard the condition of the deceased and, therefore, the dying
\n\tdeclaration at Exh.64 is fully corroborated by the medical evidence
\n\tand has to be accepted. Therefore, the submission made by the
\n\tlearned counsel, Mr.Pardiwala referring to this aspect about the
\n\tcondition of the patient and as to whether she could be said to be
\n\tfit state of condition cannot be accepted. It is well accepted that
\n\teven if a person is having extensive burn injuries to the extent to
\n\t90-95%, still he\/she could
\n\tbe conscious and in a condition to make statement.\n<\/p>\n
\tIt
\n\tis also required to be appreciated that there cannot be any specific
\n\tstandard or measurement on this aspect as it will depend upon the
\n\tperson to person and it depends  upon the capacity of the victim to
\n\twithstand the pain and the psychology. Therefore, in such a cases,
\n\tthough the victim-patient could be suffering from pain yet it will
\n\tdepend upon each case as regard the condition and ability to give
\n\tstatement. Therefore, the submission referring to the history of the
\n\tendorsement recorded in the case papers of the Referal Hospital at
\n\tExh.53 cannot be a ground to brush aside the dying declaration
\n\tcorroborated by the medical evidence in the form of testimony of
\n\tDr.Kinnar Rameshbhai (P.W.No.29, Exh.91), who had testified about
\n\tthe conduct.\n<\/p>\n
Another
\n\tfacet of arguments with regard to the conviction under Section 306
\n\tof the Indian Penal Code, whether the evidence would be sufficient
\n\tto attract the provisions of Section 306 of the Indian Penal Code is
\n\trequired to be considered. It is also required to be considered in
\n\tlight of the evidence
\n\tand particularly the dying declaration at Exh.65 when such dying
\n\tdeclaration is accepted whether it would justify the conviction for
\n\tthe offence under Section 306 of the Indian Penal Code. The
\n\tsubmissions, which have been made by both the sides referring to
\n\tSection 306 of the Indian Penal Code and much emphasize given by the
\n\tlearned counsel, Mr.Pardiwala referring to the judgments reported in
\n\this submission emphasizing that the basic difference between two
\n\tsections i.e. Section 306 and Section 498(A) of the Indian Penal
\n\tCode is that of intention is required to be considered. There cannot
\n\tbe any quarrel on this aspect that both the offence under Sections
\n\t306 and 498(A) of the Indian Penal Code are two separate and
\n\tdistinct offence which the statute has provided and, therefore,
\n\tnaturally it has to be considered depending upon the material and
\n\tevidence as to whether the ingredients for both offence can be said
\n\tto have been fulfilled or not. Section 306 of the Indian Penal Code
\n\treads as under :-\n<\/p>\n
\t“306.\n<\/p>\n
\tAbetment of suicide.- If any person commits suicide, whoever
\n\tabets the commission of such suicide, shall be punished with
\n\timprisonment of either description for a term which may extend to
\n\tten years, and shall also be liable to fine.”\n<\/p>\n
Therefore,
\n\twhat is required to be considered is whether prior to or at the time
\n\tof commission of an act, whether any act has been done to facilitate
\n\tthe commission of offence, which will have to be considered in a
\n\tgiven set of circumstances and the evidence. The abetment actually
\n\tdepends on the act of instigation or driving the person to commit
\n\tsome act. Aspect of the intention will have to be inferred from the
\n\trelevant facts and evidence and the intention cannot be established
\n\tby any direct proof or the evidence as it will have to be judged
\n\tfrom the circumstances and the manner in which the incident has
\n\toccurred reflecting about the conduct and the intention. The facts
\n\ton record clearly establish about the matrimonial discord and
\n\tconstant quarrel. It is also brought on record as to harassment
\n\tcaused to her with accused having the habit of liquor and not
\n\tproviding sufficiently for the domestic expenses coupled with the
\n\tfact that it had taken such a aggravated form that the deceased had
\n\ttaken shelter in Women Protection Home.\n<\/p>\n
\tIt appears that she had returned after some compromise to stay with
\n\tthe accused considering the children, if this aspect has been
\n\tconsidered, it would suggest about the constant atmosphere, which
\n\twas so hostile and inhuman that which resulted into such torture and
\n\tharassment, which became so unbearable that she was left with no
\n\toption but to commit suicide. It is also required to be appreciated
\n\tthat the deceased with two young children would not have thought of
\n\tcommitting suicide and would not have taken such drastic steps to
\n\tend life leaving infant at the mercy of the accused especially when
\n\the is habituated to alcohol. If these aspects which have been
\n\tbrought on record are considered in order to satisfy the Court as
\n\tregards the ingredients for the offence under Section 306 of the
\n\tIndian Penal Code and abetmenet, first aspect which the Court will
\n\thave to be satisfied is that is it not an entire surrounding and
\n\tenvironment so created, which was not only unbearable but was so
\n\tpathetic that she could not be in a position as to what could be
\n\tdone. She had also taken shelter at Women Protection Home as she was
\n\tnot having sufficient support
\n\tfrom parental house. In these circumstances, the steps of the
\n\tdeceased committing suicide or having a quarrel cannot be taken as a
\n\troutine quarrel in the matrimonial life and has to be viewed in the
\n\tbackground of the entire evidence.\n<\/p>\n
\tProvisions
\n\tof Section 306, which provides for abetement of suicide is required
\n\tto be considered and Section 107 of the Indian Penal Code defines
\n\tabetement. Section 107 of the Indian Penal Code read as under :-\n<\/p>\n
\t107.
\n\tAbetment of a thing. – A person abets the doing of a thing, who<\/p>\n
First.\n<\/p>\n
–\tInstigate any person to do that thing, or<\/p>\n
Secondly.-\n<\/p>\n
Engages with one or more other person or person in any conspiracy for
\nthe doing of that conspiracy, and in order to the doing of that
\nthing; or<\/p>\n
Thirdly.-\tIntentionally
\naids, by any act or illegal omission, the doing of that thing.\n<\/p>\n
\tExplanation\n<\/p>\n
\t1. – A person who, by wilful misrepresentation, or by wilful
\n\tconcealment of a material fact which he is bout to disclose,
\n\tvoluntarily causes or procures, or attempts to cause or procure, a
\n\tthing to be done, is  said to instigate the doing of that ting.\n<\/p>\n
\tExplanation\n<\/p>\n
\t2.- Whoever, either prior to or at the time of the commission of an
\n\tact, does anything in order to facilitate the commission of that
\n\tact, and thereby facilitate the commission thereof, is said to aid
\n\tthe doing of that act.”\n<\/p>\n
Therefore,
\n\tExplanation 2 suggests that whoever either prior to or at the time
\n\tof commission of act does anything in order to facilitate the
\n\tcommission of the act and thereby facilitate the commission thereof
\n\tis said to aid the doing of that act. The facts would reveal as can
\n\tbe seen from the evidence on record that the accused had created
\n\tcircumstances which had led her to commit suicide further at the
\n\ttime of incident as it is evident from the testimony of P.W.Nos.12
\n\tand 13 that the accused ran way when the deceased set herself on
\n\tfire inspite of making any attempt to rescue her. Therefore, it will
\n\thave to be considered in context of the provisions of Section 114 of
\n\tthe Evidence Act. A useful reference can be made to the observation
\n\tmade in a judgment of the Hon’ble Apex Court reported in 1997
\n\tSC 1830
\n\treferred to and relied upon by the learned A.P.P. on this very
\n\taspect. The Apex Court while considering the provisions of Section
\n\t498(A) of the Indian Penal Code and cruelty has also referred to the
\n\tprovisions of Section 114 of the Evidence
\n\tAct regarding the presumption and has quoted
\n\tearlier judgment reported in AIR
\n\t1997 SC 1830.\n<\/p>\n
\tPara No.12 reads as under :\n<\/p>\n
\t“Leaving\taside
\n\tthe cases of statutory presumption, the onus is upon the
\n\tprosecution to prove the different ingredients\tof the offence and
\n\tunless  it discharges that onus, the prosecution  cannot succeed.
\n\tThe court may, of course, presume, as  mentioned  in\t Section 114 of
\n\tthe Indian Evidence Act, the existence of any fact which  it thinks
\n\tlikely  to have happened, regard being  had\tto the  common course
\n\tof\t natural events,  human conduct and  public  and private
\n\tbusiness, in  their relation to the facts of  the particular case.
\n\tThe illustration mentioned in that section, though taken from
\n\tdifferent\tspheres of human activity, are not exhaustive. They are
\n\tbased upon human experience and have to be applied  in the context
\n\tof the facts  of each case.\n<\/p>\n
A
\n\tuseful reference can be made to the observation made by the Hon’ble
\n\tApex Court in a judgment reported in AIR
\n\t2008 SC 2108
\n\t= 2008 Cr.L.J.\n<\/p>\n
\tSC 2562
\n\treferred to and rely upon by the learned counsel, Mr.Pardiwala. In
\n\tthis judgment, the Hon’ble Apex Court has considering the provisions
\n\tof Section 306 of the Indian Penal Code dealing with the abetment of
\n\tsuicide, considered the earlier judgment reported in AIR
\n\t1994 SC 1418
\n\tin case of State of West Bengal V\/s Orilal Jaiswal & Anr. had
\n\tobserved that “victim committing suicide was
\n\thypersensitive to ordinary petulance, discord and differences in
\n\tdomestic life quite common to the society to which the victim
\n\tbelonged and such petulance discord and differences
\n\twere not expected to induce a similarly circumstanced individual in
\n\ta given society to commit suicide”. Again it has been observed
\n\tand quoted referring to Section 306 of the Indian Penal Code as
\n\tunder :-\n<\/p>\n
\t“Abetment
\n\tinvolves a mental process of instigating a person or intentionally
\n\taiding that person in doing of a thing. In cases of conspiracy also
\n\tit would involve that mental process of entering into conspiracy for
\n\tthe doing of that thing. More active role which can be described as
\n\tinstigating or aiding the doing of a thing it required before a
\n\tperson can be said to be abetting the commission of offence under
\n\tSection 306 of IPC.”\n<\/p>\n
Therefore,
\n\tin order to attract Section 306 of the Indian Penal Code, there has
\n\tto be material and evidence, which suggest about the same active
\n\trole, which may be said to have aided in commission of act of
\n\tsuicide. In the facts of the present case, as discussed above, the
\n\tconstant quarrel creates a situation, which compelled her to
\n\ttake a shelter with Women Protection Home. Further, some compromise
\n\twas arrived at and she had returned to stay with the accused. The
\n\thabit of liquor was not sufficiently providing for domestic expenses
\n\tand on top of that, regular torture and beating will have to be
\n\tconsidered as a cumulative effect for atmosphere created which has
\n\tled her to commit suicide. It is in this circumstances that the
\n\tCourt has to consider whether the material and evidence on record
\n\tsuggest that the atmosphere was so hostile and it was such a
\n\tmiserable that the person left in that situation, which would have
\n\tled or compelled to commit suicide to end life. Therefore, the Court
\n\thas to closely scrutinize the material and evidence to find out
\n\twhether it was a matrimonial discord and this is in domestic life,
\n\twhich is quite common or the atmosphere was so created that had made
\n\tlife miserable aiding for the commission of suicide. This would
\n\tamount to aiding act of commission of suicide. Thus, some material
\n\tand evidence which can be broadly considered as harassment, cruelty,
\n\ttorture but again it will have to be considered to find out a
\n\tcumulative effect
\n\tand whether such circumstances created could be said to be a normal
\n\tdifference and discord of the domestic life or could be considered
\n\tas an abetment for aiding the commission of act of suicide will
\n\tdepend upon the material and evidence in each case, which is
\n\trequired to be appreciated on a closure scrutiny. Therefore, once
\n\thaving accepted the dying declaration as reliable and considered
\n\tentire evidence, the submission made by the learned counsel,
\n\tMr.Pardiwala that the conviction for the offence under Section 306
\n\tof the Indian Penal Code is erroneous as necessary ingredients
\n\tcannot be said to have been fulfilled is misconceived and cannot be
\n\taccepted.\n<\/p>\n
Another
\n\tfacet of argument referring to the act prior to and after the
\n\tincident as per Section 8 of the Evidence Act is required to be
\n\tconsidered. Though Anisha, P.W.No.5, the daughter of the victim as
\n\twell as accused in her testimony may have stated that the accused
\n\thad tried to save, the testimony of other witnesses like P.W.Nos.12
\n\tand 13 at Exh.47 & 48 respectively suggest that in fact, she had
\n\tgone to call them and if this testimony
\n\tof the witnesses lend corroborative to what has been stated by the
\n\tdeceased in her dying declaration at Exh.64 that the accused had run
\n\taway, this would reflect mentality of not trying to save immediately
\n\tafter the incident, but running away so that the act is complete. If
\n\tthe intention was not there, if there was some quarrel in a heat of
\n\tpassion and if the deceased had tried to set her ablaze, normal
\n\tconduct would be to make her cool down immediately before or
\n\tat-least when the incident occurred instead of running away.
\n\tNaturally, the human conduct is required that the person in such
\n\tsituation should be saved or rescued. This reflects about the
\n\tconduct and also the intention or mens-rea. Therefore, in light of
\n\tthe discussion made hereinabove, the submissions made by the learned
\n\tcounsel, Mr.Pardiwala much emphasizing the basic difference between
\n\ttwo sections and offence cannot be ready accepted. There cannot be
\n\tany dispute that two offences are separate and distinct and one
\n\twould require mens-rea, which has to be again gathered from the
\n\tcircumstances and evidence and as discussed above, same is
\n\testablished from the cumulative effect of the
\n\tcircumstances and material and evidence on record. Therefore, the
\n\timpugned judgment and order recording conviction of the
\n\tappellant-accused cannot be said to be erroneous and does not call
\n\tfor any interference<\/p>\n
In
\n\tthe result, the present appeal stands dismissed. The
\n\timpugned judgment and order rendered in Sessions Case No.35\/2008 by
\n\tthe Learned Additional Sessions Judge, Fast Track Court No.2, Patan
\n\trecording conviction of the appellant-accused for the offences under
\n\tSections 306 and 498(A) of the Indian Penal Code is  hereby
\n\tconfirmed.\n<\/p>\n
\t\t\t\t\t\t\tSd\/-\n<\/p>\n
(RAJESH
\nH.SHUKLA, J.)<\/p>\n
\/patil<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Parmar vs Unknown on 13 December, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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\/- ======================================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-245253","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nParmar vs Unknown on 13 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/parmar-vs-unknown-on-13-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Parmar vs Unknown on 13 December, 2010 - 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