Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 999 (GUJ)

State of Gujarat v. Mansukhbhai Jivanlal Bhatt

2015-10-07

RAJESH H.SHUKLA

body2015
JUDGMENT : 1. The present Appeal is directed against the judgment and order rendered in Sessions Case No. 129 of 1997 by the learned Additional Sessions Judge, Junagadh dated 26.8.2002 recording acquittal of the Respondent-Accused persons for the offence under Sections 498A, 306 read with Section 114 of the Indian Penal Code. The facts of the case briefly summarized are as follows. 2. It is the case of the prosecution that the deceased, daughter of the complainant was married to Respondent No.2-husband before two years of the incident and was residing at Veraval as they were both serving there in a school. There was some harassment over a domestic work and during the weekends when they visit the matrimonial house at Junagadh, where the father-in-law and sister-in-law were residing, the harassment was caused to her. Therefore on 12.4.1997 when they visited the matrimonial house at Junagadh, the Respondents - Accused persons are stated to have abused stating that why she has come. Thereafter the husband had also joined in the harassment, which led her to commit suicide and therefore she poured kerosene and set her ablaze. She was taken to the Civil Hospital at Junagadh and on the basis of the complaint, the FIR being II-CR No. 3038/1997 was registered with Junagadh Taluka Police Station for the alleged offence under Sections 498A and 114 IPC and thereafter on the basis of the report, the offence under Section 306 IPC was added. 3. After the investigation was over, the charge sheet was filed, and as the offence under Section 306 IPC is triable by the court of Sessions, the case was committed to the court of Sessions. Thereafter the learned Additional Sessions Judge framed the charges for the offence as stated above and proceeded with the trial. 4. In order to bring home the charges levelled against the Respondents - Accused persons, the prosecution has examined the witnesses including the complainant victim, father and brother and also produced the documentary evidence which shall be referred to in the judgment herein after. 5. After the recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded the further statement of the accused persons under Section 313 CrPC. 6. After hearing the learned APP as well as learned Advocate for the defence, the learned Additional Sessions Judge, recorded the acquittal of the Respondents - Accused persons. 7. 5. After the recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded the further statement of the accused persons under Section 313 CrPC. 6. After hearing the learned APP as well as learned Advocate for the defence, the learned Additional Sessions Judge, recorded the acquittal of the Respondents - Accused persons. 7. It is this judgment and order which has been assailed in the present Appeal on the grounds stated in the memo of appeal inter alia that learned Sessions Judge has committed an error in appreciating the evidence particularly the dying declaration (hereinafter referred to as "the DD") at Exh. 21. It is contended that the medical evidence and the DD have not been properly appreciated. It is contended that the DD could be the sole basis for conviction which has not been appreciated. 8. Learned APP Shri H.L. Jani referred to the papers including the testimony of the Doctor - PW-1 at Exh.14 and submitted referring to the PM report at Exh.18 that the deceased died due to extensive burn injuries. Learned APP Shri H.L. Jani referred to the DD and also referred to the testimony of the Executive Magistrate PW-2 at Exh.19 and emphasized that he has recorded the DD and has clearly stated that the deceased victim was conscious for which he had obtained endorsement of the Doctor. He pointedly referred to the testimony of the Executive Magistrate PW-2 at Exh.19 and submitted that as stated by him she had narrated about the incident and has clearly stated about the harassment caused to her which is also to be found in her DD at Exh.21. Learned APP Shri Jani referred to the DD at Exh.21 and submitted that as stated in the DD the conduct of the Respondents - Accused persons is required to be considered that they closed the door and thereafter the neighbours had taken her out and thereafter as stated in the complaint at Exh.37, the husband and the father-in-law - Respondent Nos. A-2 and A-1 had come and thereafter she was taken to the hospital. Learned APP Shri Jani therefore submitted and emphasized about the conduct of the Respondents - Accused persons. He also pointedly referred to the DD at Exh.21 and submitted that she has clearly stated about the harassment and the suicide committed by her as a result thereof. A-2 and A-1 had come and thereafter she was taken to the hospital. Learned APP Shri Jani therefore submitted and emphasized about the conduct of the Respondents - Accused persons. He also pointedly referred to the DD at Exh.21 and submitted that she has clearly stated about the harassment and the suicide committed by her as a result thereof. Learned APP Shri H.L.Jani referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2008 SC 316 in case of Dashrath alias Champa & Ors. v. State of Madhya Pradesh and submitted that as observed in this judgment though the DD is an exceptions to general rule against hearsay, it has been accepted in evidence and the principle behind the same is indicated in legal maxim "nemo moriturus proesumitur mentiri a man will not meet his maker with a lie in his mouth". He therefore submitted that as observed in this judgment if the DD is voluntary and trustworthy, the conviction can be based solely on such DD. In support of this submission he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2013 SC 542 in case of Prabin Ali and Anr. v. State of Assam and again emphasized the observations made in this judgment regarding admissibility and reliance on the DD for the purpose of conviction. Learned APP Shri Jani submitted that consistently the Hon'ble Apex Court has made the observations that if the deceased was in a fit state of mind and if it is recorded voluntarily, then it could be relied upon for the purpose of conviction. He submitted that the court below has failed to appreciate this aspect in not properly appreciating the DD at Exh.21 and thereby has committed an error. He also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2014) 2 SCC 776 in case of Anjanappa v. State of Karnataka on the same issue. He therefore submitted that though normally the court may not disturb the findings of acquittal considering the scope of Section 378 Cr.PC but the court may also scrutinize the evidence. He therefore submitted that though normally the court may not disturb the findings of acquittal considering the scope of Section 378 Cr.PC but the court may also scrutinize the evidence. He emphasized that there are no fetters on the powers of the appellate court and on proper appreciation of evidence and while weighing the evidence, if there is an error in appreciating the evidence or the approach is improper, the court may disturb the findings of acquittal, and therefore, the present appeal may be allowed. 9. Learned Advocate Shri Vaibhav Vyas for the Respondents - Accused persons also referred to the testimony of witnesses and submitted that the father - PW-3 who has been examined at Exh. 22 has not supported the prosecution case with regard to any harassment. Similarly, the brother - PW-4 who is examined at Exh.23 has also not supported the prosecution case with regard to any harassment. Learned Advocate Shri Vyas submitted that though it is a case of suicide, it is not established by any cogent evidence that there was any ill-treatment or harassment as required under Section 498A. He therefore submitted that the fact that the deceased has committed suicide would not be sufficient to record the conviction without sufficient material and evidence regarding the harassment. He also referred to the DD at Exh.21 and submitted that the DD has some basic infirmities with regard to the thumb impression as well as endorsement of the Doctor which has been admitted in the cross-examination by PW-1 Doctor at Exh.14. Similarly he referred to the testimony of PW-2 at Exh.19 and submitted that he has not made a note that as there were extensive burn injuries on both hands, her left thumb impression is taken. It is admitted that he has not taken any such endorsement of the Doctor. Similarly, there is no endorsement with regard to the fit condition of the victim which has been admitted. He therefore submitted that the conviction cannot be recorded based on such a DD and therefore the court below has looked for corroboration and on appreciation of material and evidence has recorded the acquittal which cannot be disturbed. In support of this submission he has referred and relied upon the judgment of this court reported in (2014) 2 GLR 1235 in case of State of Gujarat v. Chamar Rameshbhai Maganbhai & Anr. In support of this submission he has referred and relied upon the judgment of this court reported in (2014) 2 GLR 1235 in case of State of Gujarat v. Chamar Rameshbhai Maganbhai & Anr. and submitted that as observed in this judgment, as there is no nexus between the suicide and the harassment and merely because the suicide is committed, automatically the charges are not proved. He also referred to and relied upon the judgment of this court reported in 2006 (1) GLR 514 in case of State of Gujarat v. Bharatbhai Balubhai Lad & Ors. and emphasized the observations made in paragraph 18 referring to the earlier judgment of the Hon'ble Apex Court reproted in (2001) 9 SCC 618 in case of Sanju @ Sanjay Singh Sengar v. State of M.P. He has emphasized: "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.” He further emphasized the observations made in paragraph 18 : "18. Supreme Court in case of Rameshkumar (Supra) has also explained the principle of Section 113-A of the Evidence Act in paras 12 and 13 of the judgment. Supreme Court has observed as under :- para 12 : To attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The existence and availability of the above said 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.' para 13 : The expression – 'The other circumstances of the case' used in Section 113A suggest 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. In spite of a presumption having been raised, the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The present case is not one which may fall under clauses, secondly and thirdly of Section 107 of Indian Penal Code.” 10. Learned Advocate Shri Vaibhav Vyas has also referred to and relied upon the judgment of this Court reported in 2014 (3) GLR 2283 in case of State of Gujarat v. Mansukhlal Gordhandas Vajani & Ors. He therefore submitted that from the material and evidence on record as it cannot be said that the charges for any harassment or ill-treatment as required under Section 498A has been established or the ingredients for the offence under Section 306 IPC for abetment for suicide are fulfilled, the judgment recording acquittal is just and proper. 11. Learned Advocate Shri Vyas further submitted that normally the appellate court would not disturb the findings in view of the scope of Section 378 Cr.PC in acquittal appeals. In support of this he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 4 SCC 415 in case of Chandrappa and others v. State of Karnataka. 12. In view of this rival submissions, it is required to be considered whether the present appeal deserves consideration. 13. From the background of the facts as well as appreciation of evidence, the emphasis is made by learned APP Shri H.L. Jani on the DD at Exh.21 and the complaint at Exh.37. There is no doubt that the complaint and the DD are consistent which have been referring to the harassment. 13. From the background of the facts as well as appreciation of evidence, the emphasis is made by learned APP Shri H.L. Jani on the DD at Exh.21 and the complaint at Exh.37. There is no doubt that the complaint and the DD are consistent which have been referring to the harassment. However, at the same time few aspects require a closer scrutiny which have been referred to in the impugned judgment and order. It is not in dispute that the deceased was staying separately with her husband at Veraval whereas her matrimonial house was at Junagadh where the father- in-law and sister-in-law were staying separately. Though they used to go regularly in the weekends, there was no scope of the consistent harassment particularly when they were staying separately coupled with the fact that the deceased victim was serving as a teacher in a school. Therefore, assuming about some matrimonial discord over the domestic work which could be said to be of trivial nature, there would be sufficient time to balance herself when she would return back to Veraval for attending her job for the remaining five days. It is in this background, the provisions of Section 306 IPC and the ingredients are required to be considered. It is well settled that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2011 SC 1238 in case of M. Mohan v. State Represented by the Deputy Superintendent of Police. The Hon'ble Apex Court in this judgment referred to the earlier judgment and has made the observations referring to the word 'suicide'. 14. If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word ‘suicide’ has not been defined. The word ‘suicide’ would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, “A finding of suicide must be on evidence of intention. The word ‘suicide’ has not been defined. The word ‘suicide’ would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, “A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word ‘suicide’ provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient.” [emphasis supplied] Therefore, while considering this aspect, the provisions of Section 306 read with Section 107 regarding the abetment and the suicide has to be considered. In other words, there has to be necessary evidence by which it could be said that the respondent accused had instigated the deceased in such a manner or by creating the circumstances, which has led the deceased to commit suicide. 15. The Hon'ble Court in a judgment reported in (2010) 1 SCC 750 , Gangula Mohan Reddy v. State of Andhra Pradesh has observed: “The word ‘suicide’ in itself is nowhere defined in Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means ‘self’ and ‘cide’ means ‘killing’, thus implying an act of self killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.” The provision of abetment is defined in Section 107 of the Indian Penal Code. The ingredients are required to be established. The Hon’ble Apex Court in this judgment has observed that “This Court in Chitresh Kumar Chopra V. State (Govt. of NCT of Delhi) had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words ‘instigation’ and ‘goading’. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the other. Each person has his own idea of selfesteem and self respect. Therefore, it is impossible to lay down nay straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.” The same view has also been considered by the Hon'ble Apex Court in a judgment reported in (2009) 1 SCC 618 in case of Ramesh Kumar v. State of Chhattisgarh. Therefore, it is impossible to lay down nay straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.” The same view has also been considered by the Hon'ble Apex Court in a judgment reported in (2009) 1 SCC 618 in case of Ramesh Kumar v. State of Chhattisgarh. 16. The another facet of the argument with regard to the offence under Section 498A is required to be considered. The provisions of Section 498A referring to the aspect of cruelty is required to be considered with the explanation. The explanation to Section 498A referred to the aspect of cruelty which in turn suggest the harassment or the conduct which may drive a woman to commit suicide for the reasons. In other words the harassment or the conduct must be of such a nature it could be termed as cruelty as provided in this Section. Again, the provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide and therefore Section 113A was also made. However, before the presumption may be raised, the foundation, therefore, must exist. A bare reading of Sec. 113A shows that to attract applicability of Sec. 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subject her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution that the presumption is not mandatory and "may presume" has been implied. Further, the existence and availability of the circumstances may not be like a formula but it may be drawn if the court shall have regard to 'all the other circumstances of the case' may draw such presumption. It is in this background though much emphasis has been given to the DD at Exh.21, the court is required to scrutinize the other evidence looking for corroboration. It is in this background though much emphasis has been given to the DD at Exh.21, the court is required to scrutinize the other evidence looking for corroboration. As discussed herein above, there is no such evidence with regard to the harassment which could be termed as cruelty as provided in Section 498A Cr.PC which would be necessary for conviction in the establishment of the offence under Section 498A. As discussed above, the deceased victim and her husband were residing separately at Veraval coupled with the fact that the harassment as referred to are over the domestic work and there is no whisper about any demand for dowry etc. Therefore, assuming the matrimonial discord by the in-laws, the fact remains that she was residing separately with A-2 and there is no cogent evidence with regard to any harassment which could be termed as cruelty. For the purpose of appreciating the offence under Section 498A the DD at Exh.21 require a closer scrutiny. 17. As submitted by learned Advocate Shri Vaibhav Vyas the DD may be the basis for conviction but in a given case it may require corroboration in the facts of the case. As stated above, the DD has some infirmities with regard to the thumb impression of the deceased as well as the fact that the Doctor has not made an endorsement that the victim was in a fit state of condition to give such a statement and therefore it would not be proper for recording conviction on the basis of such DD without any further corroboration. 18. Much emphasis given by learned APP Shri Jani that DD at Exh.21 cannot be accepted that the court below is misdirected. Therefore unless the foundation with regard to the harassment and the cruelty is laid, the presumption could not be made. Further, as the ingredients for the offence under Section 306 with regard to any direct or proximate cause or the causal connection between the incident of harassment and the suicide are not established, the impugned judgment and order recording the acquittal cannot be said to be erroneous. Therefore, having regard to the aforesaid discussion and the matrimonial quarrel over the domestic work and the dominance by the in-laws even if it is assumed, would not support the prosecution case that it was of such a nature which could led her to commit suicide. Therefore, having regard to the aforesaid discussion and the matrimonial quarrel over the domestic work and the dominance by the in-laws even if it is assumed, would not support the prosecution case that it was of such a nature which could led her to commit suicide. As discussed above, the suicide or tendency to commit suicide depends on various factors, including the sensitivity or the tolerance and it may differ from person to person. Again the aspect of matrimonial discord leave a different perception in a given circumstances and therefore the findings recorded by the court below cannot be said to be erroneous much less perverse which would call for any interference. There has to be a nexus between the conduct or the harassment which ultimately led a woman to take extreme steps of suicide. In other words there has to be causal connection between the instigation and the resultant effect of such instigation or abetment culminating into suicide. As there is no such evidence, the findings of acquittal recorded cannot be said to be erroneous much less perverse which would call for any interference. 19. The Hon'ble Apex Court has laid down the broad guidelines with regard to scope of Section 378 of Cr.PC in acquittal appeals. It is also well accepted that there are no fetters on the power of the court particularly when it justifies in the interest of justice to scrutinize the evidence. However, while scrutinizing and appreciating the evidence the appellate court is also obliged to bear in mind the broad guidelines with regard to approach laid down by the Hon'ble Apex Court in a judgment reported in (2007) 4 SCC 415 in case of Chandrappa & Ors. v. State of Karnataka. It has also been reiterated in a subsequent judgment of the Hon'ble Apex Court reported in AIR 2013 SC 321 in case of Mookkiah & Anr. v. State Rep. by the Inspector of Police, Tamil Nadu observing that if the view taken by the court below on appreciation of material and evidence is a plausible view, the order of acquittal may not be disturbed merely because the other view is possible. v. State Rep. by the Inspector of Police, Tamil Nadu observing that if the view taken by the court below on appreciation of material and evidence is a plausible view, the order of acquittal may not be disturbed merely because the other view is possible. Further, the observations have been made by the Hon'ble Apex Court in a judgment reported in AIR 2008 SC 2573 in case of Syed Peda Aowalia v. Public Prosecutor, High Court of A.P., Hyderabad expressing the word of caution that it is only when the Court below has totally misdirected or where there are compelling reasons, the acquittal order may call for interference. Thus, it is only when the court below has totally misdirected or where there are compelling reasons, the findings recorded by the Court below may be disturbed. It is well accepted that if the view taken by the Court below is a plausible view the same may not be disturbed. It is in these circumstances and for the reasons recorded herein above, the present Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Appeal dismissed.