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2016 DIGILAW 434 (GUJ)

Prabhaben v. State of Gujarat

2016-02-23

RAJESH H.SHUKLA

body2016
JUDGMENT : RAJESH H. SHUKLA, J. The present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 26/1992 by the Additional Sessions Judge, Rajkot dated 12/13.10.1998 recording conviction of the appellant-original accused No. 1 for the offence under Sections 498(A) and 306 of the Indian Penal Code and sentenced her to undergo two years rigorous imprisonment and fine of Rs. 100/-, in default, to undergo seven days simple imprisonment for the offence under Section 498(A) of the Indian Penal Code and also sentenced her to undergo five years rigorous imprisonment and fine of Rs. 500/-, in default, to undergo fifteen days simple imprisonment for the offence under Section 306 of the Indian Penal Code. 2. The facts of the case briefly summarized are as follows: 2.1 The deceased-daughter of the complainant was married to the son of the appellant-original accused No. 1 and they were residing in a joint family at Navagam. It is the case of the prosecution that she was taunted for the dowry stating that she has not brought anything and also that she has not conceived or delivered a child. Thus the harassment was caused to her, as a result of which, the deceased-daughter of the complainant committed suicide, for which, ultimately the complaint came to be lodged by the complainant-father being C.R No. I-141/1991 before the Rajkot Taluka Police Station. 2.2 After the investigation, the chargesheet came to be filed. However as the offences are triable by the Court of Sessions, it was committed to the Court of Sessions, Rajkot. 2.3 Thereafter, the court below has proceeded with the trial and recorded the further statements of the accused under Section 313 of the Criminal Procedure Code. 2.4 After hearing the learned APP as well as learned Advocate for the defence and on appreciation of the evidence, the Court below recorded conviction of the appellant-accused as stated above. 3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal. 4. Heard learned senior advocate, Shri K.B Anandjiwala for the appellant-accused and learned APP Shri. H.L Jani for the respondent-State. 5. Learned senior counsel, Shri Anandjiwala referred to the testimony of panch witnesses at Exhs.11 and 12. Learned senior counsel, Shri Anandjiwala referred to the testimony of Dr. 4. Heard learned senior advocate, Shri K.B Anandjiwala for the appellant-accused and learned APP Shri. H.L Jani for the respondent-State. 5. Learned senior counsel, Shri Anandjiwala referred to the testimony of panch witnesses at Exhs.11 and 12. Learned senior counsel, Shri Anandjiwala referred to the testimony of Dr. Ajmeri at Exh.14 and submitted that he has not stated about the cause of drowning and has stated that the cause of death is drowning and, therefore, he could not give his opinion as to how the death has caused by drowning. Learned senior counsel, Shri Anandjiwala also referred to the testimony of the complainant-father, PW-5 at Exh.19 and submitted that the allegations are vague and general in nature. Learned senior counsel, Shri Anandjiwala submitted that the span of marriage life was so small and, therefore, she could not deliver a child and it only shows that the allegations are made without any basis. He submitted that there was some issue with regard to making couple separate. He submitted that the real issue was that the deceased did not like to stay in a joint family and in fact, there were some talks also. He submitted that as could be seen from the testimony of complainant himself at Exh.19, entire complaint is false. He also referred to the FIR at Exh.20 Learned senior counsel, Shri Anandjiwala also referred to the testimony of PW-6, Aunt (father's sister) and submitted that it is general and hearsay. Learned senior counsel, Shri Anandjiwala also referred to the testimony of PW-7, mother at Exh.22 and Investigating Officer at Exh.24 6. Learned senior counsel, Shri Anandjiwala submitted that the offence under Section 306 of the Indian Penal Code cannot be said to have been made out. For that purpose, he referred to the discussion and the findings in the judgment in para No. 22. He submitted that in judgment, on one hand, the Court below has made observation regarding the taunt and the harassment and observed that it cannot be said to be any instigation for the suicide committed by the deceased. However, learned senior counsel, Shri. Anandjiwala submitted that inspite of the observation, the conviction is recorded for the offence under Section 306 of the Indian Penal Code. 7. Similarly, learned advocate, Shri Anandjiwala submitted that though the allegations about the harassment and the demand are made, they are general and vague. However, learned senior counsel, Shri. Anandjiwala submitted that inspite of the observation, the conviction is recorded for the offence under Section 306 of the Indian Penal Code. 7. Similarly, learned advocate, Shri Anandjiwala submitted that though the allegations about the harassment and the demand are made, they are general and vague. He submitted that there is no evidence as regard any demand for anything and in fact, as stated above, the deceased did not like to stay in a joint family and wanted to be separated, which was the very basis for some quarrel. He therefore submitted that the impugned judgment and order recorded conviction may be set aside. 8. Learned APP Shri. Jani, however, referred to the testimony of witnesses at length, particularly, PW-5, complainant-father at Exh.19 and complaint at Exh.20 and submitted that the averments with regard to the demand as well as the harassment are fully corroborated by the testimony of Aunt, PW-6 at Exh.21 and testimony of mother of the deceased, PW-7 at Exh.22 Learned APP Shri Jani submitted that these are the social issues which take place in four walls of the matrimonial house and naturally the witnesses would be concerned relatives or family members and, therefore, it cannot be brushed aside as vague and general. Learned APP Shri. Jani submitted that the Legislature has made the provision of Section 498(A) of the Indian Penal Code with the object and curbing the menace of such harassment to a married woman. He further submitted that even if there is some lapse in the reasoning, the Court is required to consider entire material and evidence in the appeal for the purpose of examining afresh and deciding as to whether the conviction could be sustained or not. Learned APP Shri Jani also submitted that during six months of the marriage life, the harassment was caused and the witnesses including the father and aunt have stated that whenever she visited the parental house, she complained about the harassment and it is also coming on record that in order to save her marriage life, they used to console her and would sent her with a hope that things will improve and this itself suggests that all was not well. 9. 9. Learned APP Shri Jani referred to the provision of Section 306 of the Indian Penal Code and also referred to the judgments of the Hon'ble Supreme Court in case of Surinder Singh v. State of Haryana, reported in AIR 2014 SC 817 and also in case of Amrutlal Liladharbhai Kotak v. State of Gujarat, reported in AIR 2015 SC 1355 and submitted that in the facts of the present case also, the charge was for the offence under Section 304B of the Indian Penal Code and, therefore, presumption under Section 113(A) and 113(B) of the Indian Evidence Act may be attracted. He referred to the observations made in a judgment in case of Amrutlal Liladharbhai Kotak(supra), With regard to the applicability of Sections 113A and 113B of the Indian evidence Act, in the case of State of Punjab v. Iqbal Singh, (1991) 3 SCC 1 , this Court observed that the legislative intent is clear to curb the menace of dowry deaths, etc, with a firm hand. It must be remembered that since crimes are generally committed in the privacy of residential homes, it is not easy to gather direct evidence in such cases. That is why the legislature has by introducing Sections 113A and 113B of the Indian Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within a period of seven years.”. 10. Learned APP Shri. Jani submitted that considering background of the facts, the benefit under the Probation of Offenders' Act was not granted even by the Sessions Court and, therefore it may not be justified. He therefore submitted that the present appeal may not be entertained. 11. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 12. As it reveals from the background of the facts and the material and evidence on record, initially the charge was also for the offence under Section 304B of the Indian Penal Code and conviction has been recorded for the offence under Sections 306 and 498(A) of the Indian Penal Code. The moot question therefore is whether there was any harassment and nature of harassment, which could be said to have been driven the deceased to commit suicide. The moot question therefore is whether there was any harassment and nature of harassment, which could be said to have been driven the deceased to commit suicide. The explanation to provision of Section 498(A) of the Indian Penal Code clearly referred to this aspect while defining the cruelty. It has been provided that word “cruelty” has reference to harassment for some valuable which may ultimately lead a married woman to commit suicide. A scanning of the evidence as stated above including the testimony of PW-5, father-complainant at Exh.19, complaint at Exh.20, testimony of Aunt, PW-6 at Exh.21 and testimony of mother, PW-7 at Exh.2 2 are consistent when it is clearly stated that even within short span of marriage life while the deceased visited the parental house, she used to complain about the harassment with regard to specific issue like she has not brought anything which has again reference to some demand or expectation for the dowry. Similarly, she has not conceived or delivered a child. This again has been brought to the notice of the elder in the family when she visited the parental house and as stated by PW-6 in her testimony at Exh.21 that they used to console her and used to send her back to the matrimonial house with the hope that things will improve in the course of time. This attitude is normally in the Indian society where the parents would try to save the marriage with some compromise and making the daughter understand with some hope. Therefore, the submission made by learned advocate, Shri Anandjiwala that the allegations are vague or general in nature, cannot be readily accepted. Further emphasis that the deceased wanted to stay separate and did not like to stay in a joint family referring to the testimony of complainant-father, PW-5 at Exh.19 is also misconceived as it does not suggest that the deceased insisted of staying separately and she had come back to the parental house. It is in this background, it is required to be considered that on one hand, the harassment is caused at the matrimonial home and the married woman like the deceased when complaint and speak at the parental house, effort is made to console her to save the marriage and it is this process or the situation where the deceased might feel that she is left with no option and committed suicide. Therefore, it cannot be said that there is no foundation for the offence under Section 306 of the Indian Penal Code and it would not be attracted. The reliance placed by learned APP Shri Jani on a judgment in case of Amrutlal Liladharbhai Kotak (supra) also requires to be considered with another judgment of the Hon'ble Apex Court in case of Rajinder Singh v. State of Punjab, reported in AIR 2015 SC 1359 , which has referred to the approach and the interpretation of such provision. Reference is made to the Constitution Bench Judgment of the Hon'ble Apex Court in case of M. Narayanan Nambiar v. State of Kerala, reported in AIR 1963 SC 1116 regarding Prevention of Corruption Act. The Constitution Bench Judgment of the Hon'ble Apex Court in case of Balram Kumawat v. Union of India, reported in AIR 2003 SC 2368 has been quoted. “23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject-matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.” 13. Thus once the offence is proved or established on the basis of the material and evidence apart from the presumption under under Section 304B read with Section 113A, it would not justify the interference with the impugned judgment and order recording conviction. Further even presumption under Section 114A of the Evidence Act would be attracted. Therefore in light of the legislative intention and the underlying policy, presumption can be raised in a given circumstances to enable the Court to do justice. In other words, Law provides for the presumption in such offences to make inference on the basis of the material and evidence in order to do the justice. 14. Therefore the submission made by learned advocate, Shri Anandjiwala cannot be accepted both with regard to the instigation for the offence under Section 306 of the Indian Penal Code that there was no instigation or on the aspect of harassment and the demand as required under Section 498(A) of the Indian Penal Code. Therefore the impugned judgment and order recording conviction does not call for interference. 15. Therefore the impugned judgment and order recording conviction does not call for interference. 15. However, alternative submission with regard to the benefit of Probation of Offenders' Act deserves consideration. It is required to be stated that long period has lapsed as the incident is of the year 1991, for which, conviction has been recorded in the year 1998 and the hearing of appeal has taken place in the year 2015. Further prayer was made for grant of probation initially before the Sessions Court also, which came to be rejected for the reasons that she is female as well as aged and the application was made before the Sessions Court for grant of probation vide Exh.34, however, the Sessions Court rejected the same at the relevant time and, therefore, it would be proper for this Court to consider such prayer at this stage. Therefore considering the provisions of the Probation of Offenders' Act, the interest of justice would be served if the benefit of the probation is granted to the appellant while maintaining conviction. Therefore as the provision of Section 4 of the Probation of Offenders' Act, which enable the Court to grant probation if the Court is of the opinion that it is justified. Therefore considering the aforesaid circumstances, this is a fit case to exercise the discretion for grant benefit of probation. 16. In the circumstances, the impugned judgment and order recording conviction is maintained and confirmed. However, the appellant-accused is granted the benefit under the Probation of Offenders Act and is ordered to be released on probation of good conduct, subject to her executing bond of Rs. 10,000/- (Rupees Ten thousand only) for good moral conduct with one Surety of Rs. 10,000/- (Rupees Ten thousand only) or like amount for a period of two years. The order of substantive sentence imposed upon the appellant-accused shall remain suspended during the period of bond and if there is any breach of condition of the bond executed under Section 4 of the Probation of Offenders Act, the trial Court shall have liberty to issue non-bailable warrant against the appellant-accused for serving the sentence imposed upon her. The present appeal therefore stands allowed to the aforesaid extent.