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2019 DIGILAW 411 (GUJ)

Narpatsinh Udesinh Parmar v. State of Gujarat

2019-04-12

A.G.URAIZEE

body2019
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant has assailed the judgment and order dated 15.09.2000 passed by the learned Additional Sessions Judge, Court No. 19, Ahmedabad in Sessions Case No. 36 of 1997, whereunder, the appellant who is accused No. 1 convicted for the offence punishable under Sections 498(A) and 306 of Indian Penal Code and Section 4 of the Dowry Prohibition Act while other two accused persons who happened to be the father and mother respectively came to be acquitted. 2. The facts of the prosecution case as could be gathered from the impugned judgment are that the marriage of the deceased-- Gitaben was solemnized with the appellant around 5 years before the incident which happened on 3.07.1996. At the time of marriage, Gold and Silver ornaments, cloths, utensils, furniture etc. was given. The acquitted accused No. 2--Udesinh Vadansinh and accused No. 3--Ugamben Udesinh were the father-in-law and the mother-in-law of deceased--Gitaben. After the marriage, deceased--Gitaben started living with the appellant and acquitted accused No. 2 & 3 (father-in-law & mother-in-law respectively) in joint family at Ahmedabad. 3. The marriage life was smooth for the first year, but thereafter, the appellant started beating and harassing the deceased--Gitaben. The appellant upon instigation of his parents (acquitted accused Nos. 2 & 3) would ask the deceased-Gitaben to bring Rs. 10,000/- from her father otherwise she would not be allowed to stay in the house. The appellant would also tell her that she had brought less dowry. The deceased-Gitaben, ultimately, committed suicide on 03.07.1996 by pouring kerosene on her body and setting herself ablaze. P.W. 2, Kulsinh L. Trivedi-maternal uncle of the deceased-Gitaben lodged a complaint in respect of the incident with the Kangdapith Police Station, Ahmedabad which came to be registered vide C.R. No. 1-203 of 1996 for the offence punishable under Section 306, 498(A) r/w Section 114 of Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. 4. After conclusion of the investigation charge-sheet came to be filed against the appellant and acquitted accused Nos. 2 & 3 in the Court of learned Judicial Magistrate First Class, Ahmedabad. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 36 of 1997. 5. 2 & 3 in the Court of learned Judicial Magistrate First Class, Ahmedabad. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 36 of 1997. 5. The Sessions Court framed charges against the accused-appellant vide Exhibit 2. The same was read over and explained to the accused-appellant, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused. 6. Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the appellant-accused, convicted the appellant-accused of the charges by the impugned judgment and order. 7. I have heard Mr. Chudasama, learned advocate for the appellant and Mr. L.R. Pujari, learned APP for the respondent. I also perused the record of Sessions Case No. 36 of 1997. 8. Mr. Chudasama, learned advocate for the appellant has vehemently submitted that the incident had happened on 04.07.1996 and P.W. 2 lodged the complaint on 06.07.1996 i.e. after 2 days of the incident. He submitted that the prosecution has not explained the delay and on that ground alone the conviction of the appellant is required to be set aside. He further submitted that in support of this contention he placed reliance a decision of Bombay High Court in the case of Khemraj Hiralal Agarwa v. State of Maharashtra, (1995) 3 crime 390 and a decision of Madhya Pradesh High Court in the case of Kamlesh and Others v. State of M.P., 2002 Cri.L.J. 4523. He further submitted that the allegation of harassment and demand of dowry are general in nature. According to his submission, demand of Rs. 10,000/- was made 6 months before the incident and the prosecution has not shown any incident prosecuting the date of the incident, and therefore, the learned trial Judge could not have convicted the appellant. He submitted that there are material contradictions and omissions in the evidence of P.W.2-uncle, P.W.4-father, and P.W.5-grand father of the deceased-Gitaben. He also submitted that the prosecution has not examined neighbors though their statements under Section 161 of the Code were recorded. He submitted that there are material contradictions and omissions in the evidence of P.W.2-uncle, P.W.4-father, and P.W.5-grand father of the deceased-Gitaben. He also submitted that the prosecution has not examined neighbors though their statements under Section 161 of the Code were recorded. He submitted that the prosecution has not adduced any evidence to show that there was a demand of money was continuous and persisted till the unfortunate incident happened. According to his submission, evidence of P.W.2, P.W.4 and P.W.5 does not inspire confidence and it is shaky and in fact the learned trial Judge has found that the evidence of P.W.4-father of the deceased-Gitaben could not believed as he was of unsound mind. He further submitted that the evidence regarding demand of Rs. 10,000/- is her say and the same is not admissible in evidence as has been held by the Supreme Court in the case of Gananath Patnaik v. State of Orissa, 2002 SCC (Cri.) 461. He also submitted that the statement of P.W.5-grand father of the deceased-Gitaben was recorded immediately after registration of Janvajog Entry in which he had exonerated the appellant and the acquitted co-accused persons. Mr. Chudasama, learned advocate for the appellant also relied upon the decision of the Supreme Court in the case of Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433 , and Sohan Raj Sharma v. State of Haryana, 2008 (2) Crimes 175 (SC). He, therefore, submitted that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and hence urged the Court that the appeal may be allowed and the appellant may be acquitted. 9. Per contra, Mr. L.R. Pujari, learned APP has supported the impugned judgment. He vehemently submitted that immediately after the incident, appellant and the co-accused persons tried to mislead the prosecution by stating that the deceased--Geetaben had caught fired while cooking meal. He also submitted that the demand of Rs. 10,000/- which was made 6 months before the incident had continued till the unfortunate incident and P.W.4-father of the deceased-Gitaben in his cross-examination in paragraph No. 5 he had clearly stated that 10 days before the incident he had spoken to father-in-law (original accused No. 2) of the deceased-Gitaben regarding the demand of Rs. 10,000/-. He, therefore, submitted that the demand of Rs. 10,000/- was continuous and there is line linked between the death of deceased-Gitaben and the demand of Rs. 10,000/-. He, therefore, submitted that the demand of Rs. 10,000/- was continuous and there is line linked between the death of deceased-Gitaben and the demand of Rs. 10,000/-. He also submitted that the deceased--Gitaben had committed suicide within 2 years of her marriage, and therefore, the learned trial Judge has rightly raised presumption under Section 113 of the Evidence Act. He further submitted that it has emerged from the evidence of witnesses that ornaments which the deceased-Gitaben had received in dowry, were lying with P.W.4-father of the deceased-Gitaben and the appellant and other acquitted accused persons were ill treating and harassing the deceased-Gitaben for bringing back those ornaments. He further submitted that P.W.5-grand father of the deceased-Gitaben has stated in his evidence that the deceased-Gitaben had come 15 days before the incident to attend the marriage of Naransinh and at that time she has disclosed that the money was demanded. 10. According to his submission, the dowry death nature of evidence to be adduced by the prosecution is of lighter character as such offences are committed in secrecy inside the house. He further submitted that in view of Section 106 of Evidence Act, there is a burden on the inmates of the house to give a cogent explanation as to how the crime was committed and the accused persons cannot be allowed to get away by keeping quite on the specious ground that the prosecution must discharge its burden of proving the case. In support of this submission, he has placed reliance a decision of the Supreme Court in the case of Trinavkh Maroti v. State of Maharashtra, 2006 (16) SCC 681. He submitted that the reasons recorded by the learned trial Judge convicting the appellant are cogent which cannot be said to be perverse or illegal, and therefore, the appeal lacks merit which may be dismissed. 11. It is an undisputed fact that the marriage life of deceased--Gitaben with the appellant was of 2 years, and therefore, when death of a married women happens within 7 years of marriage, presumption under Section 113(a) and Section 113(b) of the Evidence Act is to be raised if the allegation of harassment is there and unnatural death has occurred due to dowry demand. 12. Section 306 of the IPC prescribed the punishment for abatement of suicide, which reads as under:- "306. 12. Section 306 of the IPC prescribed the punishment for abatement of suicide, 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." 13. Since Section 306 of IPC provides for punishment for abatement of suicide. It is apposite to refer Section 107 of IPC which defines abatement. The Section reads as under: "107. Abetment of a thing.-- A person abets the doing of a thing, who- First.--Instigates any person to do that thing; or Secondly -- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or Thirdly.-- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." 14. Thus, the conjoint reading of Sections 306 and 107 of IPC that makes it manifestly clear that there has to be of instigation by a person who induces another person to commit suicide. Moreover, such instigation i.e. abatement should be intentional. To put it in another words, the person instigating the other person had knowledge of consequences of the instigation and such conscious abatement with the knowledge of consequences that the other person would commit suicide. It is such intentional abatement that comes within the sweep of Section 306 of IPC. 15. At this juncture, reference needs to be made to the provisions of Section 498(A) of IPC which provides as under:- '498A. 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 term which may extend to three years and shall also be liable to fine. 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 term which may extend to three years and shall also be liable to fine. Explanation.-- For the purpose of thing 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." 16. Thus, by virtue of provision of Section 498(A), the husband of a woman or the relative of the husband renders themselves punishable if they have subjected women to cruelty. Explanation to Section 498(a)(b) defines cruelty. As per the explanation (a) any willful conduct which is of such a nature that it would drive the women to commit suicide or to cause injury to herself. The grave injury or danger to life limb or health of such women. According to provision (b) any harassment to the women which is made with an intention to coerce her or any other person related to her to meet any unwillful demand for property or valuable security. 17. It is, therefore, very clear that to bring the offence within the purview of Section 498(A) there has to be unwillful conduct of a grave nature which would prompt the women to commit suicide or which would caused grave injury to her body or there is a harassment to the women with an intention to coercion her or any one related to her to meet any unwillful demand i.e. some property, valuable security. 18. In the backdrop of the above legal position, this Court will have to be analyzed the evidence adduced by the prosecution to bring home its case against the appellant. 19. The prosecution case against the appellant rests on the evidence of P.W.2-uncle of the deceased-Gitaben who is also the de facto-complainant, P.W.4-father of the deceased-Gitaben and P.W.5-grand father of the deceased-Gitaben. 20. 19. The prosecution case against the appellant rests on the evidence of P.W.2-uncle of the deceased-Gitaben who is also the de facto-complainant, P.W.4-father of the deceased-Gitaben and P.W.5-grand father of the deceased-Gitaben. 20. In the first instance, let us examine the evidence of these three witnesses to find out whether a case punishable under Section 306 of IPC against the appellant is made out or not? 21. P.W.2 Fulsinh stated about the maternal uncle and de facto-complainant. It emerges from the evidence that the marriage life of the deceased-Gitaben with the appellant was of two years. There was no problem and everything was hunky-dowry in the initial first year, but thereafter, according to these witnesses, the appellant upon instigation of acquitted accused persons who happened to be his father and mother respectively started beating the deceased-Gitaben and asking her to bring money from his father. This witness states that around six months before the incident when he had gone to Ambaji on the day of Poonam and had gone to the house of his brother-in-law. The deceased-Gitaben was present there. Deceased-Gitaben told him that her husband was beating her since last seven months and on the instigation of mother-in-law and father-in-law (acquitted accused No. 3 & 2 respectively) told her that she has brought less dowry and was ask her to bring Rs. 10,000/- from her father. Deceased-Gitaben requested this witness to Rs. 10,000/- as she could not ask her father to give this money because he was not keeping good health. This witness did not give the money to deceased-Gitaben but disclosed this conduct to P.W.5-Amarsinh who is grand father of the deceased-Gitaben. P.W.4 told this witness that he would speak to in-laws and would see to it that the marriage of deceased--Gitaben is not disturbed. 22. P.W.4-Vikramsinh Vaghela, father of the deceased-Gitaben. This witness also states that the marriage life of the deceased-Gitaben with the appellant during the initial first year was good, but thereafter, the deceased-Gitaben was subjected to physical and mental cruelty. He further states that in-laws of the appellant were telling the deceased-Gitaben that she has brought less dowry. Around three months before the incident, father-in-law-Udaisinh (acquitted accused No. 2) of deceased--Gitaben had came to fetch the deceased-Gitaben, she states that during her stay at his place, deceased-Gitaben has disclosed to him that she is being harassed for money and asked for Rs. Around three months before the incident, father-in-law-Udaisinh (acquitted accused No. 2) of deceased--Gitaben had came to fetch the deceased-Gitaben, she states that during her stay at his place, deceased-Gitaben has disclosed to him that she is being harassed for money and asked for Rs. 10,000/- as this witness did not for money, she persuaded her to go to her in-laws. It is thus clear from the evidence of this witness that Rs. 10,000/- was demanded three months before the unfortunate incident. 23. Amarsinh-P.W.5 is grand father of the deceased-Gitaben. He also states in his evidence that the relation was good between the appellant and the deceased-Gitaben on the ground of bringing less dowry and was being asked to bring money otherwise she would be thrown out of the house. According to this witness, this was disclosed to him by the deceased-Gitaben around 8 to 10 months before the incident. He further states that around 15 days before the incident the deceased-Gitaben had come to attend the marriage of Naran when she had disclosed that money is being demanded and if the demand is not made she is being beaten and mentally ill-treated. The reading of the evidence of above three witnesses makes it clear that all the three witnesses are giving different dates about the demand of money made by the appellant upon the instigation of his acquitted parents. P.W.2-uncle and de facto-complainant states that money was demanded six months before the incident whereas according to P.W.4-father, such demand was made around three months before the incident, whereas P.W.5 grand father says that such demand was for the first time disclosed him around 8 to 10 months before the incident. 24. At this juncture, since the unfortunate incident had happened within 7 years of the marriage. The provision of Section 113(a) and Section 113(b) of the Evidence Act become relevant as they provide for presumption. These provisions reads as under:- "113A. 24. At this juncture, since the unfortunate incident had happened within 7 years of the marriage. The provision of Section 113(a) and Section 113(b) of the Evidence Act become relevant as they provide for presumption. These provisions reads 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 had 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.]" 25. For the purpose of offence under Section 306, provision of Section 113(b) of the Evidence Act would be attracted. The perusal of Section 113 of the Evidence Act may reveals that there has to be demand for a dowry soon before the incident. In the case on hand, as we have seen the evidence of three important witnesses, who are giving different version as to when the demand of Rs. 10,000/- was made. Moreover, the prosecution has not produced any evidence to indicate that the demand for Rs. 10,000/- was continuous and the deceased was subjected to incessation incident and intolerable mental and physical torture which had led the deceased-Gitaben to end her life. 10,000/- was made. Moreover, the prosecution has not produced any evidence to indicate that the demand for Rs. 10,000/- was continuous and the deceased was subjected to incessation incident and intolerable mental and physical torture which had led the deceased-Gitaben to end her life. As per the settled proposition of law there has to be a life link between the unwillful demand and the unfortunate incident of suicide by the wife, but, in my view, in this case the link snapped, and therefore, it cannot be said that there was a continuous demand for money and non fulfillment of such demand had resulted in the harassment and cruelty, mental and physical, to the deceased-Gitaben at the hands of the appellant upon the instigation of the acquitted accused persons. The submission of Mr. Pujari, learned APP states that there is no as the demand of Rs. 10,000/- was not made, the same is continue till the unfortunate incident, and therefore, there was life link between the demand and the suicide of the deceased-Gitaben cannot be accepted in absence of any positive tangible evidence. I am, therefore, of the view that the conviction of the appellant for the offence punishable under Section 306 of IPC cannot be sustained. 26. All these bring us to consider the question whether the appellant cannot be said to have committed the offence punishable under Section 498(A) of the IPC and Section 4 of the Dowry Prohibition Act. 27. It is vividly clear from the evidence of P.W.2, P.W.4 and P.W.5 that the marriage life between the deceased--Gitaben and appellant was of two years, during the initial one year there was no problem between them, but, thereafter, it appears from the evidence of these witnesses that the appellant started ill treating and harassing the deceased--Gitaben upon instigation of the acquitted accused Nos. 2 and 3 father and mother respectively for not bringing enough dowry and coercion her to bring Rs. 10,000/- from her father. All these three witnesses are consistent in their deposition that such Rs. 10,000/- was demanded and their consistent version of such demand is not dislodge in their cross-examination. An attempt was made in the cross-examination of these witnesses that the deceased-Gitaben was remaining mentally disturbed on account of some of her ornaments which were given to her at the time of her marriage. 10,000/- was demanded and their consistent version of such demand is not dislodge in their cross-examination. An attempt was made in the cross-examination of these witnesses that the deceased-Gitaben was remaining mentally disturbed on account of some of her ornaments which were given to her at the time of her marriage. Being retained by P.W.4 to give the same in between for the marriage of the younger sister. The appellant could not successfully established his defines. Therefore, it is very clear that after one year of the marriage, the deceased-Gitaben was subjected to harassment for bringing less dowry and to bring Rs. 10,000/- from her father. 28. The learned trial Judge has chosen to acquit the accused Nos. 2 and 3, father-in-law and mother-in-law respectively of the deceased-Gitaben on the ground that except the allegation of instigating the present appellant, the evidence of witness do not reveal that they have played any active role in subjecting the deceased-Gitaben to mental and physical cruelty. I am, therefore, of the view that the conviction of the appellant for the offence punishable under Section 498(A) of the IPC and Section 4 of Dowry Prohibition Act does not warrant interference in this appeal. 29. However, as submitted by Mr. Chudasama, learned advocate for the appellant that after the incident the appellant has remarriage and has a child. He is having responsibility of the family. The incident had happened in the year 1996 i.e. 22 years ago, and therefor, he urges that some leniency may be shown and instead of sending the appellant to jail the sentence may be modified to undergone. 30. Mr. Pujari, learned APP objects to modify the sentence and submits that such course of modifying the sentence would sent wrong signal in the society. 31. Be that as it may, since the incident of around 22 years ago the appellant has settled in his life with family, I am, of the view that the request for modifying the sentence needs to be accepted with condition of enhancing the fine so far some example is set. 32. For the reasons recorded in the judgment, the appeal succeeds in part. 33. So far the conviction for the offence under Section 306 of IPC, the judgment and order passed by the learned Additional Sessions Judge, Court No. 19, Ahmedabad in Sessions Case No. 36 of 1997 dated 15.09.2000, is quashed and set aside. 32. For the reasons recorded in the judgment, the appeal succeeds in part. 33. So far the conviction for the offence under Section 306 of IPC, the judgment and order passed by the learned Additional Sessions Judge, Court No. 19, Ahmedabad in Sessions Case No. 36 of 1997 dated 15.09.2000, is quashed and set aside. For the offences under Section 498(A) of IPC and Section 4 of the Dowry Prohibition Act, the impugned judgment and order while upholding conviction, the sentence is modified to already undergone. The appellant -- accused is not required to undergo further sentence in respect of the offence in question. 34. Fine for the offence punishable under Section 498(A) of IPC and Section 4 of the Dowry Prohibition Act is enhanced to Rs. 2000/- each in place of Rs. 1000/- imposed by the trial Court. 35. Fine paid for the offence under Section 306 of IPC is ordered to be adjusted. The balance amount of fine is ordered to be paid by the appellant within one month from the date of receipt of this order, in the trial Court. 36. The accused is on bail and hence, the bail bonds stand cancelled and surety, if any, stands discharged. 37. Record and Proceedings be remitted to the trial Court forthwith.