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2019 DIGILAW 121 (GUJ)

Kamuben Somabhai v. State of Gujarat

2019-02-12

R.P.DHOLARIA

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JUDGMENT : R.P. Dholaria, J. 1. The present appeal is preferred by the appellants - original accused against the judgment and order dated 7.5.2003 passed by learned Additional Sessions Judge, Court No. 18, Ahmedabad in Sessions Case No. 359 of 1994 whereby the appellants accused have been convicted and sentenced to undergo rigorous imprisonment for three years for the offence under section 498-A of Indian Penal Code and to pay fine of Rs. 2000/- each, in default to undergo six months simple imprisonment. 2. The complaint came to be lodged against the accused persons for the offences under sections 306 and 498-A of Indian Penal Code. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellants - original accused have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr. Viral Vyas, learned advocate for Mr. Ashish Dagli, learned advocate for the appellants - original accused has taken this Court through the entire judgment and record and argued that the parents of the victim had not at all supported the case of the prosecution and even the complainant had disowned his complaint and also went to the extent that the deceased had not at all stated anything involving the present accused with the crime in question. He further pointed out that though there appears four dying declarations on record i.e. one alleged to have been recorded by the police, second came to be recorded by the Executive Magistrate, third appears to have been recorded by the treating Doctor and the fourth oral dying declaration appears to be before her parents. He submitted that learned trial Court has held that as nothing was emerging out regarding any instigation or inducement to the deceased, due to which, she poured kerosene over her person on 4.2.1993 and therefore, the appellants accused came to be acquitted for the offence punishable under section 306 of IPC, while convicted for the offence punishable under section 498-A of IPC holding that there was persistent harassment and abuse to the victim deceased for not properly doing household work, due to which, she has committed suicide. It is, therefore, Mr. Vyas, learned advocate for the appellants accused submitted that even if two dying declarations recorded by the Executive Magistrate or by the treating Doctor may be believed to be true, then also nothing is emerging out so as to constitute the offence punishable under section 498-A of IPC as ingredients of section 498-A of IPC are required to be established and the willful conduct which is of such nature which is likely to drive a woman to commit suicide. In the present case, nothing is emerging out that the accused had done any willful overt act so as to lead the victim to commit suicide or to induce her to commit suicide as such and therefore, learned trial Court has wrongly convicted the appellants accused and hence conviction is required to be set aside, as such. 7. On the other-hand, Ms. Bhatt, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellants - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. 7. On the other-hand, Ms. Bhatt, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellants - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that since four dying declarations are available on record though parents had turned hostile to the case of the prosecution, but almost in all four dying declarations, the same version is emerging out and therefore, though oral dying declaration appears to have been ruled out in view of the depositions of the parents, but placing reliance over two dying declarations recorded by the independent witnesses like police official who was on duty as well as the Executive Magistrate, learned trial Court has rightly convicted the appellants accused. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. 8. This Court has heard Mr. Viral Vyas, learned advocate for the appellants - accused and Ms. Bhatt, learned APP for the State. 9. PW 1 - Mangabhai Arjanbhai has been examined at Exh. 15. The witness is the complainant and father of deceased Narmada who deposed that while he visited his daughter Narmada in LG Hospital, he had not talked with her and she had not stated anything. He further deposed that the deceased was happily residing with her husband and there was no quarrel. The witness has turned hostile to the case of the prosecution and even he disowned his complaint altogether. In the cross examination, the witness has admitted that her daughter Narmada was separately residing with her husband only and not with in-laws. 10. PW 2 - Sakuben Mangabhai has been examined at Exh. 16. The witness is the mother of the victim who deposed that her daughter was residing along with in-laws till the birth of his child and thereafter she was residing separately with her husband. 10. PW 2 - Sakuben Mangabhai has been examined at Exh. 16. The witness is the mother of the victim who deposed that her daughter was residing along with in-laws till the birth of his child and thereafter she was residing separately with her husband. The witness has deposed that her daughter has not complained against the accused and her daughter told her that she got burnt due to accidental injury and even she had not at all supported the case of the prosecution and also became hostile to the factum of oral dying declaration made by deceased Narmada to her. 11. Over and above the aforesaid oral evidence, in the dying declaration before the treating Doctor Mr. K.D. Patel, deceased Narmada stated that on 4.2.1993 at about 2.30 pm due to quarrel with her mother-in-law at her husband's home, she got burnt. In another dying declaration before the Executive Magistrate Mr. Udesinh K. Vaghela - PW 5, deceased Narmada inter alia narrated that on 4.2.1993 her mother-in-law as well as her elder brother-in-law (Jeth) rebuked her for household work and also abused, due to which, she felt bad though she was doing well her household work and poured kerosene over her person and set herself on fire and thereafter shouted for help, due to which, other members of family including her husband rescued her and taken her to the hospital. 12. On overall analysis of the aforesaid evidence on record, it is seen that since two dying declarations alleged to have been made before her parents got ruled out as both of them had not supported the case of the prosecution and they went to the extent that nothing was told by her and even deceased Narmada was residing happily with her husband. Regarding aforesaid two dying declarations before the police official as well as Executive Magistrate, there appears some contradictions before the Doctor where deceased Narmada had not involved elder brother-in-law, but before the Executive Magistrate, deceased Narmada involved both of them. 13. At this stage, it would be fruitful to reproduce section 498-A as under. "498-A. Husband or relative of husband of a woman subjecting her to cruelty,-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. "498-A. Husband or relative of husband of a woman subjecting her to cruelty,-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purpose of this section, "cruelty" means- (a) any willful conduct which is 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) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 14. The evidence on record if it may be believed to be true, then also since allegations are emerging out that the accused rebuked deceased Narmada for not carrying out household work properly, that by itself would not amount to "willful conduct". The said act of the appellants accused is not of such nature which is likely to drive the woman to commit suicide. Ordinarily, in the family, elder members are used to rebuke if the work is not properly done by any junior member of the family. If that would no longer remain the right of the elder member in the family, then there would be no chance of supervision over the work of the junior member of the family. Precisely, on evaluation of the evidence by this Court in its entirety, the factual scenario as emerging out, this Court is of the considered opinion that no case is being constituted so as to punish the present appellants for the offence under section 498-A of IPC. 15. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 7.5.2003 passed by learned Additional Sessions Judge, Court No. 18, Ahmedabad in Sessions Case No. 359 of 1994 is quashed and set aside. The appellants accused be set at liberty if not required in any other case. Bail bond, if any, stands cancelled. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.