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2016 DIGILAW 1654 (GUJ)

Abedali Jaminali v. State of Gujarat

2016-08-05

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. The present appeal, under Section 374 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'), is directed against the judgment and order dated 11/01/2000, passed by the learned Additional Sessions Judge, Court No. 8, City Sessions Court, Ahmedabad, in Sessions Case No. 52 of 1997, whereby, the appellant herein - original accused came to be convicted for the offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and for the offence punishable under Section 498-A of the IPC, he was sentenced to undergo rigorous imprisonment (RI) for three years and a fine of Rs. 500/- and in default of payment of fine, to undergo, further RI for fifteen days, whereas, for the offence punishable under Section 306 of the IPC, to undergo RI for five years and a fine of Rs. 1,000/- and in default of payment of fine, to undergo, further RI for one month. 2. Facts in nutshell of the prosecution case are that on 01/06/1996, Khurshidbanu, the deceased wife of the appellant herein - original accused namely Abedali Jaminali, gave a complaint to Vatva police, Ahmedabad mainly alleging that her marriage took place with the accused before eight years and she was residing with her husband, three children born out of the said wedlock and the mother-in-law and the brother-in-law. Her husband, the appellant herein - original accused was running a pan galla, which he had given on rent for about last one year to the date of incident. Her mother-in-law was begging and helping in the house. When her marriage took place, the accused was without any work and whenever, he needed money, he used to give physical and mental torture to the deceased, which, she was tolerating for all these years after marriage. On 26/05/1996, the appellant - accused had to go Ajmer for praying for which, he had sold out the wrist watch and after returning home, he told his wife, the deceased, that since he had sold the wrist watch, bring Rs. 900/- from your father as he wanted to purchase the new one. The accused also allegedly threatening her that he would not allow her to go to her parental house and would cutoff the relations with them and by saying so, he used to beat her. 900/- from your father as he wanted to purchase the new one. The accused also allegedly threatening her that he would not allow her to go to her parental house and would cutoff the relations with them and by saying so, he used to beat her. From last three days of the incident in question, the appellant -accused allegedly to have been giving the physical and mental torture to the deceased and telling her to bring Rs. 900/- to purchase the wrist watch. On the day of incident also, in the morning, the appellant - accused allegedly quarreled with her and beaten her on the said count and as the same had become unbearable, the deceased took the extreme step and committed suicide by pouring kerosene and set her ablaze and died in the hospital during treatment. Thus, the appellant - accused committed the offence alleged against him, for which, a complaint came to be lodged for the offences punishable 498-A and 306 of the IPC. For the sake of convenience, the parties herein are referred as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/N. Name of Witness Exh. 1 PW1 Saiyad Hussainmiya Haidrmiya 10 2 PW2 Saiyadkhatun Hussainmiya Bukhari 11 3 PW3 Abzalhussain Hussainmiya Bukhari 12 4 PW4 Jagdish Sunderlal Parmar, Executive Magistrate 23 5 PW5 Nasirhussain Khilafathussain Bukhari 26 6 PW6 Ramkumarsinh Jagatpalsinh Rajput 27 7 PW7 Dr. Kamlesh Prahladbhai 29 8 PW-8 Dr. Pratimaben Bharatkumar Oza 35 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 PW1 Saiyad Hussainmiya Haidrmiya 10 2 PW2 Saiyadkhatun Hussainmiya Bukhari 11 3 PW3 Abzalhussain Hussainmiya Bukhari 12 4 PW4 Jagdish Sunderlal Parmar, Executive Magistrate 23 5 PW5 Nasirhussain Khilafathussain Bukhari 26 6 PW6 Ramkumarsinh Jagatpalsinh Rajput 27 7 PW7 Dr. Kamlesh Prahladbhai 29 8 PW-8 Dr. Pratimaben Bharatkumar Oza 35 DOCUMENTARY EVIDENCE S/N. Document Exh. 1 Complaint 39 2 Report of PSO 13 3 Copy of Vardhi 14 4 Panchnama of place offence 15 5 Panchnama of clothes of the complainant 16 6 Injury Certificate of the complainant 17 7 PM Note 18 8 Office copy of the Despatch Note 19 9 Receipt of FSL 20 10 FSL Report 21 11 FSL Analysis Report 22 12 Yadi to Executive Magistrate by PSI, Vatva Police Station 24 13 Dying Declaration 25 14 Inquest Panchnama 31 2.3 At the end of the trial, after recording the Further Statement of the accused under Section 313 of the Code and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal. 3. Heard Mr. M.M. Tirmizi, the learned advocate for the appellant - original accused and Mr. K.L. Pandya, the learned Additional Public Prosecutor for the respondent - State. 3.1 Mr. Tirmizi, the learned advocate for the appellant - accused submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the present appellant - accused. He took this Court through the oral as well as the entire documentary evidence on record, more particularly, the depositions of PW-1 Saiyad Hussainmiya Haidermiya, the father of the deceased, at exh.10, PW-2 Saiyadkhatun Hussainmiya Bukhari, the sister of the deceased, at exh.11, PW-3 Abzalhussain Hussainmiya Bukhari, the brother of the deceased, at exh.12 and contended that these witnesses, who are the blood relations of the deceased, have not supported the case of the prosecution and they have been declared as hostile. Moreover, from the cross-examination of the said witness by the prosecution, nothing substantial has come out so as to connect the accused with the crime. Moreover, drawing attention of the Court to the deposition of PW-5 Nasirhussain Khilafathussain Bukhari, the panch witness of the Panchnama of place of offence at exh.15, recorded vide exh.26, submitted that, this witness has also not supported the case of the prosecution. The learned advocate for the accused then invited attention of the Court to the deposition of PW-4 Jagdish Sunderlal Parmar, the Executive Magistrate at exh.23 as well as the Dying Declaration of the deceased at exh.25 recorded by him so also the deposition of PW-6 Ramkumarsinh Jagatpalsinh Rajput, the Investigating Officer who had also recorded the complaint given by the deceased immediately after the incident in question, at exh.27, the deposition of two doctors viz. PW-7 Dr. Kamlesh Prahladbhai at exh.29 and PW-8 Dr. Pratimaben Bharatkumar Oza at exh.35 and submitted that, as such, so far as ingredients of offence punishable under Section 498-A of the IPC are concerned, he is not submitting much on the said aspect and considering the fact that maximum punishment prescribed for the said offence is awarded by the trial Court, he requested to reduce the sentence to the period already undergone by the accused i.e. of approximately 13 months. 3.2 So far as offence punishable under Section 306 of the IPC is concerned, the learned advocate for the appellant - accused submitted that the ingredients of the said offence have not, at all, been proved by the prosecution and there is no direct or indirect evidence is forthcoming on record to show that the accused had induced the deceased to take such an extreme step and there appears no incriminating material to show incitement, conspiracy and/or intention/mens rea and thus, the conviction imposed upon the accused for the offence punishable under Section 306 of the IPC is bad in law, more particularly, there is no evidence forthcoming on record. Moreover, when the near relatives of the deceased have not supported the case of the prosecution, the impugned judgment and order may be quashed so far as conviction for the offence punishable under Section 306 of the IPC is concerned. Moreover, when the near relatives of the deceased have not supported the case of the prosecution, the impugned judgment and order may be quashed so far as conviction for the offence punishable under Section 306 of the IPC is concerned. 3.3 In support of his submissions, the learned advocate for the accused has relied upon following decisions: 3.3.1 Gangula Mohan Reddy v. State of Andhra Pradesh, reported in (2010) 1 SCC 750 , more particularly, para 17, which reads as under: "17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this Court is clear 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 committed suicide." 3.3.2 Kishori Lal v. State of M. P., reported in (2007) 10 SCC 797 , more particularly, the Head Note 'B', which reads as under" "B. Penal Code, 1860 - S. 107 and S. 109 - Abetment - Ingredients - Held, the offence of abetment is a separate and distinct offence provided in IPC and a person abets the doing of a thing by instigation conspiracy or intentional aid - Where act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished for the punishment provided for the original offence - "Abetted" means specific offence abetted - Hence, offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence". 3.3.3 Ramesh Kumar v. State of Chhattisgarh, reported in (2001) 9 SCC 618 , more particularly, para 22, which reads as under: "22. Sections 498-A and 306 IPC are independent and constitute different offences. 3.3.3 Ramesh Kumar v. State of Chhattisgarh, reported in (2001) 9 SCC 618 , more particularly, para 22, which reads as under: "22. Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt.P/10 corroborates the inference flowing form the two writings contained in the diary and as stated hereinabove. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt.P/10 corroborates the inference flowing form the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improbablises the theory of his having abetted suicide." 3.4 Making above submissions, he requested to allow the present appeal by reducing the sentence to the period he had already undergone so far as offence punishable under Section 498-A of the IPC is concerned and acquitting the appellant - accused from the charge for the offence punishable under Section 306 of the IPC. 4. On the other hand, Mr. Pandya, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. She took the Court through the relevant oral as well as documentary evidence on record, more particularly, the deposition of PW-4 Jagdish Sunderlal Parmar, the Executive Magistrate, at exh.23 and the deposition of PW-6 Ramkumarsinh Jagatpalsinh Rajput, the Investigating Officer, at exh.27 and submitted that the Dying Declaration of the deceased, recorded by the aforesaid witness and the Yadi sent by the police to him, have been forthcoming on record vide exhs.25 and 24, respectively, and the complaint recorded by the IO is at exh.39, which can also be considered to be the second Dying Declaration. He submitted that both the aforesaid evidence viz. He submitted that both the aforesaid evidence viz. Dying Declaration as well as the complaint, respectively, had been recorded by the Executive Magistrate and the Police official, immediately after the incident in question had taken place, which are corroborative to each other and accordingly, all the ingredients of the offences alleged against the accused, which are required to be proved as per the guideline laid by the Hon'ble Apex Court, are proved, as discussed by the learned trial Judge at length in the impugned judgment and order. Moreover, considering the conduct of the accused, more particularly, the immediate proximity of time and the chronology mentioned in the complaint, exh.39, it can very well be said that the ingredients of offence punishable under Section 306 of the IPC are proved by the prosecution beyond reasonable doubt and the learned trial Judge has rightly held guilty to the accused for the said offence, as detailed in the impugned judgment and order and accordingly, the appeal being sans any merit, deserves to be dismissed. 5. I have considered the above-referred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the impugned judgment and order as well as the decisions relied upon by the learned advocate for the appellant-accused. 5.1 On going through the evidence of PW-1 Saiyad Hussainmiya Haidermiya, exh. 10, PW-2 Saiyadkhatun Hussainmiya Bukhari, exh. 11 and PW-3 Abzalhussain Hussainmiya Bukhari, exh. 12 as well as the evidence of PW-5 Nasirhussain Khilafathussain Bukhari, exh. 26, though it is the fact that near relatives of the deceased as well as the panch witness, have not supported the case of the prosecution, however, at the same time, taking into consideration the Dying Declaration of the deceased at exh. 25, recorded by the Executive Magistrate (PW-4) and the complaint given by her at exh. 39, which both are corroborative to each other, appear to be the trustworthy. A perusal of the Dying Declaration, exh. 25, recorded by the Executive Magistrate (PW-4) and the complaint given by her at exh. 39, which both are corroborative to each other, appear to be the trustworthy. A perusal of the Dying Declaration, exh. 25 reveals that in reply to the query as to reason behind the incident, the deceased has replied that, 'my husband (Abedali) was beating me and used to ask to get the money; not to go anywhere and used to ask to bring money from her mother's house and thereby, was harassing her and since, it became unbearable, she has set her ablaze. Since, marriage, he was harassing her and used to ask to go to her mother's house and fetch the money'. The tenor of the complaint given by the deceased at exh. 39 also substantiates the aforesaid facts demanding money, beating and thereby, subjecting her to cruelty and harassment, which prompted the deceased - complainant, to take such an extreme step. In this regard, it is beneficial to have a glance at Section 306 of the IPC, which reads as under: "306. Abetment of suicide: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 5.2 The interpretation of law should be on broader side and it cannot be narrowed down as per the whims and fancies and accordingly, the case on hand is to be evaluated. The abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature is clear 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. 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. In such a case, the victim is the best person to represent his/her case and if the Court finds his evidence to be worthy enough to believe, it can be the sole basis of conviction, as is held by the Hon'ble Apex Court in catena of decisions. In the case on hand, the deceased is the best person. It comes out from her versions in the Dying Declaration, exh. 25 and the complainant at exh. 39 that only and only due to harassment and cruelty being performed by the appellant - accused, she had taken such a step, as detailed herein above. Thus, instigation and abetment is proved against the present appellant - accused beyond any doubt and accordingly, in the opinion of the Court the prosecution has proved its case successfully against the appellant - accused for the offences for which, he was charged, convicted and sentenced. 5.3 Besides, the conduct of the accused also cannot be lost sight of for the reason that after the marriage he was without any work and idle as the pan galla, which he was running, had been given on rent for Rs. 100/- per month by him and he was survived on the earnings of the deceased, who, besides, them, was maintaining their three children also. The mother of the accused was survived by begging. Moreover, the fact of he having gone to Ajmer on 26/05/1996 for worship by selling out his wrist watch and on returning on 29/05/1996, asking the deceased to bring Rs. 900/- as he wanted to have new one and for that, he was giving physical and mental torture to her even on 01/06/1996 and also beating her, speaks a volume against the accused. 900/- as he wanted to have new one and for that, he was giving physical and mental torture to her even on 01/06/1996 and also beating her, speaks a volume against the accused. 5.4 In view of the aforesaid facts and circumstances of the case and the evidence on record, more particularly, the Dying Declaration and the complaint, given by the deceased herself with conscious mind which can be considered as her Dying Declaration, I am of the opinion that the learned trial Judge has committed no error, which requires interference at the hands of this Court, more particularly, when for the findings and conclusion of conviction and sentence, plausible reasons have been given. Moreover, the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned advocate for the appellant-accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order. Moreover, there cannot be any dispute as to the ratio laid down in the decisions relied upon by the learned advocate for the accused, referred to above, which this Court has gone through minutely, however, in the considered opinion of this Court, the same would be of no help to the appellant-accused being not applicable in the facts and circumstances of the case on hand. 6. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly, and the impugned judgment and order dated 11/01/2000, passed by the learned Additional Sessions Judge, Court No. 8, City Sessions Court, Ahmedabad, in Sessions Case No. 52 of 1997, is hereby confirmed. The appellant-accused is reported to be on bail. His bail bond shall stand cancelled and he is directed to surrender to custody within a period of 12 weeks from today, failing which, the concerned investigating agency shall take appropriate steps in accordance with law. Registry to return the R&P to the trial Court forthwith.