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2009 DIGILAW 677 (GUJ)

Jadavji Deshi v. State of Gujarat

2009-10-21

D.H.WAGHELA, SHARAD D.DAVE

body2009
JUDGMENT D.H.WAGHELA, J. (1) TheSE appeals are preferred by the original accused persons who are convicted for offences punishable under Sections 304-B, 306 and 498-A read with Section 114 of Indian Penal Code, as well as by the State, from the judgment and order dated 15.9.1992 of learned Additional Sessions Judge, Jamnagar in Sessions Case No. 66 of 1988. (2) ON 1.1.1988, deceased Bhavnaben was brought to the hospital with severe burn injuries and her complaint was recorded as FIR at 7.00 a.m., which was treated to be her first dying declaration (Exh.41). It was stated by her that she was married since two years and having a daughter aged five months; that at around 5.30 p.m., on the previous day her mother-in-law, father-in-law, husband and younger brothers of her husband had taunted her for her parents having not given her anything. As such taunts were given off and on and as she could not suffer them any more, she had burnt herself at 3.00 hours in the early morning by pouring kerosene over her body. As her husband was awakened, he and her mother-in-law and father-in-law had doused the fire by covering her with blankets and as she was having severe burn injuries, they had taken her to Irwin hospital by car for treatment. She further stated that she was perfectly conscious at that time and that she had burnt herself upon being tired of life due to harassment. 2.1 Thereafter, another dying declaration was recorded by the Executive Magistrate (Exh.20) at 9.30 a.m., after certification by the Medical Officer that the victim was conscious and in a position to reply, wherein it was stated by her that she had tried to die by pouring kerosene at her home; that the reason was that she was unhappy and that it was done in the morning. Thereafter, according to the deposition of her mother (Exh.21), she was asked by her the reason for taking such step and she had replied that her mother-in- law, father-in-law, husband and two younger brothers of the husband were harassing her on account of dowry. She had also told that there had been a quarrel on the previous evening and all those persons had harassed her on account of dowry. She had also told that there had been a quarrel on the previous evening and all those persons had harassed her on account of dowry. The mother also deposed that, according to the deceased, she was harassed and taunted by all the accused persons as she was not given any dowry. She admitted that the deceased had visited her parental home on several occasions and had written 10 to 15 letters but none else was informed about the deceased being unhappy on account of dowry; even as she was telling her that she was unhappy as aforesaid. She admitted that she did not have the list of things which were given to the deceased at the time of her marriage but all such things were returned. Similar statements are made by the father and uncle of the deceased in their respective depositions. 2.2 The third dying declaration (Exh.57) in the form of further statement was recorded by the police at around 7.00 p.m. on the same day. It was stated therein that mention of elder brother of the husband in earlier statement of the deceased was incorrect as her husband had no elder brother. Reiterating the allegation of harassment by the accused persons, it was added that she had replied to her mother-in-law by saying that her parents had given to her as much as they could manage and pursuant to such reply, her husband had scolded her in the night by asking why she had replied to his mother in such a way. The prosecution case was built up on the basis of the aforesaid evidence to prove that the deceased had committed suicide on account of cruelty and demand of dowry. It was argued by learned counsel Mr. Buch, appearing for the accused, that there were glaring discrepancies in the oral and written statements treated as dying declarations and it was not a fit case in which presumption under Section 113-A or 113-B could be drawn. He submitted that there was complete lack of evidence as regards any demand by any of the accused persons and the dying declarations as regards the cause for committing suicide were not reliable insofar as they were proved to be half truths and embellishments over the earlier statements. It was further submitted that the evidence of any harassment or cruelty of the victim was as vague as it could be. It was further submitted that the evidence of any harassment or cruelty of the victim was as vague as it could be. As against that learned APP submitted that the trial Court was justified in concluding that all the dying declarations contained a consistent story of harassment of the victim driving her to commit suicide. He further submitted that the facts of the case have to be appreciated in the setting of matrimonial home of the victim where detailed and independent evidence of cruelty committed off and on could not be available. Therefore, the legislature has made the necessary provision for presumptions so as to dispense with clear and cogent evidence of cruelty or demand of dowry. (3) Before re-appreciating the evidentiary value of the statements stated to be dying declarations, it may be pertinent to notice the other relevant evidence on record. The prosecution had examined as P.W.8 Chhaganbhai Thobanbhai (Exh.25) who had first visited the victim at her home immediately after she had burnt herself. According to his deposition, the deceased had told him in reply to his question as to why she had burns, that she had done it just like that; that she had no grudge but she did not want to live and wanted to die. She had also revealed to him that before burning herself, she had consumed poison and as it did not work and as her anger had not cooled, she had set herself ablaze. That witness was having good relations with both the families and happened to be paternal uncle of the deceased. As his version was not consistent with the dying declarations implicating the accused persons, he was declared to be hostile and permitted to be cross-examined by the prosecution. However, the veracity of his version was partly borne out by deposition of the doctor and Assistant Professor at Irwin hospital (Exh.12) and FSL report at Exh. 15 insofar as the deceased was found to have consumed poison before setting herself ablaze. Remarkably, none of the dying declarations mentioned the fact that the deceased had consumed poison. Secondly, in the depositions of the doctors treating the deceased before her death (Exh.51 and Exh.61), it is stated that the victim was treated with a medicine which would have sedative and pain killing effect. Remarkably, none of the dying declarations mentioned the fact that the deceased had consumed poison. Secondly, in the depositions of the doctors treating the deceased before her death (Exh.51 and Exh.61), it is stated that the victim was treated with a medicine which would have sedative and pain killing effect. Particularly, at 3.00 hours in the afternoon, she was administered injection of 'Fortven' and that in such cases of severe burn injuries, the windpipe and brain gets progressively congested resulting into abnormal mental condition in the later stage of suffering. It was admitted that normally the pain killers were administered only after the police inquiries are carried out. Thus, the oral statements stated to have been made after 3.00 p.m. on 1.1.1988 by the deceased and treated as dying declarations may not be fully relied upon as clinching evidence implicating all the accused persons. There were minor discrepancies in the statements of other prosecution witnesses. Besides those pieces of evidence, the admitted lack of evidence about any specific demand of any amount or item as also complete absence of any evidence regarding any particular previous incident of harassment or demand required the Court to carefully consider all such facts and circumstances before adopting the presumptions provided under the Evidence Act. (4) Adverting to the relevant statutory provisions, it may be noticed that cruelty as defined in Section 498-A of Indian Penal Code means any willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by them to meet such demand. The provisions of Section 304-B of Indian Penal Code require cruelty or harassment by the husband or his relative in connection with any demand for dowry soon before the unnatural death within seven years of the marriage. Section 306 of IPC requires the presence of essential ingredients of abetment which in turn requires proof of instigation, engagement into any conspiracy or intentional aid, for attempt to commit suicide, which is otherwise and independently also an offence. Section 306 of IPC requires the presence of essential ingredients of abetment which in turn requires proof of instigation, engagement into any conspiracy or intentional aid, for attempt to commit suicide, which is otherwise and independently also an offence. In the aid of proof of these offences, the presumptions are provided in the provisions of Sections 113-A and 113-B as also Section 114 of the Indian Evidence Act which read as under: 113A. Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation: For the purposes of this section cruelty shall have the same meaning as in section 498A of the Indian Penal Code. 113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation: For the purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code. 114. Court may presume existence of certain facts- The Court may presume 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. 114. Court may presume existence of certain facts- The Court may presume 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. Examining the relevant evidence as aforesaid, for the purpose of application of above statutory provisions, it was seen that the dying declarations of the deceased were not statements of the whole truth and the version of all the five accused persons meeting or sitting together to cause harassment by taunting the deceased in relation to dowry after two years of marriage required some corroboration which was absent in evidence. Moreover, the first statement recorded by the police in the form of FIR implicating all the accused persons by name and relationship stood contradicted by the second dying declaration (Exh.20) recorded as dying declaration proper in presence of the Executive Magistrate who is not alleged to have an axe to grind. The subsequent recording of further statement by the police Exh.57 was clearly calculated to remove any doubts about the identity of the accused persons; and the level of suffering and effect of the medicine on the deceased cast a shadow of doubt on reliability of that statement. Taking into account the deposition of paternal uncle of the deceased (Exh.25), it cannot be said that all the dying declarations were, consistent and proved beyond reasonable doubt involvement of all the accused persons in driving her to commit suicide. Adoption of the presumption under Section 113A of the Evidence Act require consideration of all the other relevant circumstances which include absence of any cogent or specific evidence as regards how. when and in what manner the deceased was subjected to cruelty. Similarly, the mandatory presumption under Section 113B requires as a condition precedent, demand for dowry of which reliable and specific evidence was not brought on record. The allegation of taunting off and on, on account of not bringing anything from the parental home may or may not be by way of vague demand for dowry. The evidence on record in that regard is insufficient and inconclusive. The allegation of taunting off and on, on account of not bringing anything from the parental home may or may not be by way of vague demand for dowry. The evidence on record in that regard is insufficient and inconclusive. However, it does appear from the record and the common refrain of all the dying declarations that the deceased did not have a happy married life and, in her perception, even the husband did not stand by her. It may be in response to such situation that the deceased would have naturally or in a fit of rage determined to end her life, disregarding the pain her action would ensue and the deprivation her young daughter would suffer. (5) EVEN as the trial Court has, in the impugned judgment, drawn all the inferences against the accused persons on the basis of its own subjective perception of social mores and realities, the other social realities were also required to be borne in mind. The common recognized tendency is to implicate all the family members in the case of cruelty to married women and dowry deaths when not only the parents-in-law of the woman concerned are implicated but younger or elder brothers of the husband, either living apart or as young as aged 19 years, as in the present case, are implicated and exposed to trial, conviction and punishment. In such circumstances, the Court has to be more circumspect, lest one injustice results into another injustice for an innocent person in the prime of his youth and at the threshold of his career. It has also to be borne in mind that an attempt to commit suicide is by itself an offence and need not always be glorified as a sacrifice on the altar of marital discord or taken as a necessary result of harassment or cruelty. It is true that in the contemporary Indian culture, marital relationship is often exploited for material gain but at the same time at least the literate and knowledgeable new generation is aware of the recourse and remedies available to them, besides moral, material or legal support of the parents which is normally extended to the women even after marriage. It is true that in the contemporary Indian culture, marital relationship is often exploited for material gain but at the same time at least the literate and knowledgeable new generation is aware of the recourse and remedies available to them, besides moral, material or legal support of the parents which is normally extended to the women even after marriage. In such circumstances, the extreme step of extinguishing one's own life has to be objectively examined in light of the surrounding facts and circumstances, before jumping to any conclusion about guilt of all the members of husband's family. Unfortunately, in most of the cases all the relevant facts and version of the accused persons do not come on record, even through the statements recorded under Section 313 of Criminal Procedure Code. Therefore, it is all the more important for the Court to strictly adhere to the basic rule for conviction, i.e. all the ingredients of an offence must be proved beyond reasonable doubt before conviction could be recorded in respect of any of the accused persons. (6) The above view of the facts and relevant legal provisions find support in the judgment of the Supreme Court in Hans Raj v. State of Haryana (2004)12 SCC 257 : (2004 Cri LJ 1759) wherein the Apex Court observed ; 12..........Section 107 IPC lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing........ 13. Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the, court is not bound to presume that the suicide had been abetted by her husband. Even if these facts are established the, court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word cruelty in Section 498-A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh (2001)9 SCC 618 : (2001 Cri LJ 4724) wherein this Court observed..... 12.......Before the presumption may be raised, the foundation thereof must exist...... Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not. like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - 'the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one.......... It is further observed by the Apex Court in State of W.B. v. Orilal Jaiswal (1994)1 SCC 73 : (1994 Cri LJ 2104) that 15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. Last but not the least, the presumption is not an irrebuttable one.......... It is further observed by the Apex Court in State of W.B. v. Orilal Jaiswal (1994)1 SCC 73 : (1994 Cri LJ 2104) that 15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record........ (7) In Vikas and others v. State of Maharashtra (2008)2 SCC 516 : (2008 AIR SCW 915), the Apex Court reaffirmed the principles formulated in Khushal Rao v. State of Bombay ( AIR 1958 SC 22 ): (1958 Cri LJ 106) holding that where a dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing. It was further observed that a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the court. It was further observed that a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the court. (8) Having regard to the facts and the evidence as aforesaid, it is imperative to hold that the totality of the evidence on record did not conclusively establish, beyond reasonable doubt, that the victim was subjected to such cruelty as would immediately instigate or inspire her to commit suicide and the harassment related to dowry was not proved to be calculated to coerce her or her relatives to meet any unlawful demand or on account of their failure related to meet any such demand. In fact, it was conceded that there was no clear and cogent evidence about any demand and it had remained an unsubstantiated allegation of the deceased that she was taunted off and on by all the accused persons. There is no evidence about the nature, manner or wording of the taunts and the time or occasion except the statement in the dying declaration that at 5 p.m., on the previous evening, all the accused persons had taunted her about not bringing anything from her parents house. It may be recalled that there was complete lack of evidence about any particular demand having been articulated at any point of time by anyone during the two years of married life of the deceased. Therefore, the evidence of taunting may be sufficient to prove the offence of cruelty but it was not sufficient to hold each or any particular accused person guilty of the offence of dowry death. The expression soon before her death in Section 304-B of IPC is not defined but it normally implies that the interval should not be much between the alleged cruelty or harassment and the death in question. As held by the Supreme Court in Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828 : (2003 Cri LJ 4321), if alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. As held by the Supreme Court in Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828 : (2003 Cri LJ 4321), if alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. In the facts and for the reasons discussed hereinabove, the appeal of the accused persons is partly allowed and the conviction and sentences for the offences under Sections 304-B and 306 of Indian Penal Code are set aside while the conviction for the offence punishable under Section 498-A of IPC is upheld and confirmed. It was stated at the bar that the father-in-law of the deceased i.e. appellant No. 1 has already passed away and the other appellants have already undergone imprisonment for more than ten months. The sentence for the surviving appellants is reduced from one year to the period of imprisonment already undergone. The appeal of the State for enhancement of punishment is dismissed. Order accordingly.