Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 840 (GUJ)

Jamilaben v. State of Gujarat

2019-10-03

ABDULLAH GULAMAHMED URAIZEE

body2019
JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellants have assailed the judgment and order on sentence dated 28.11.2000 passed by the learned Joint and District Judge and Second Fast Track Judge, Nadiyad in Sessions Case No. 143 of 2000 where under while acquitting accused Nos. 1 and 4, the appellants were convicted under sections 498A and 306 read with section 114 of IPC. Both the appellants are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/- each. In default, to suffer further simple imprisonment for four months for offence under section 498A of IPC and they are sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 2000/- each. In default, to suffer simple imprisonment for six months for offence under section 306 of IPC. 2. The facts in brief giving rise to the present appeal as could be gathered from the impugned judgment and connected material are that marriage of the deceased Farjana was solemnized with acquitted accused No. 1-Irshadali Gulamnabi Momin two years prior to 30.09.1998. The deceased had come to her parental home after six months of the marriage and had disclosed that appellants were subjecting her to taunts for not bearing child and had also telling her that if she does not bear child they would marry off acquitted accused No. 1 second time. The appellants were also subjecting the deceased to mental and physical cruelty. Deceased returned to her matrimonial home after four months. However, the appellants left her at her parental home after five months when she was ill with an assurance that she would be taken back after she recover but even after two months, nobody came to take her back. Thereafter, deceased was sent to her matrimonial home with PW 9 and 10, and acquitted accused persons were requested not to harass the deceased. At that time also, present appellant told that they do not want to keep the deceased as she was not able to bear child. The appellants and acquitted accused persons were also demanding Rs. 20,000-25,000/-. However, Rs. 5000/- was given so that the deceased was not harassed. On 19.09.1998, the deceased Farajana set herself ablaze by pouring kerosene. She was taken to V.S. Hospital, Ahmedabad where her dying declaration Exh. 22 was recorded. A statement of the deceased on the basis of which FIR was registered. 20,000-25,000/-. However, Rs. 5000/- was given so that the deceased was not harassed. On 19.09.1998, the deceased Farajana set herself ablaze by pouring kerosene. She was taken to V.S. Hospital, Ahmedabad where her dying declaration Exh. 22 was recorded. A statement of the deceased on the basis of which FIR was registered. Deceased Farajana thereafter succumbed to the burn injuries. 3. Accordingly, complaint being C.R. No. I-42/1998 came to be registered with Kheda Town Police Station for the offences punishable under sections 498A, 306, 201, 114 of IPC and under section 3(10) of the Dowry Prohibition Act. 4. On the basis of the complaint, the investigation was carried out. Upon conclusion of investigation, since the investigating officer found a prima facie case against the accused, the charge-sheet was filed against them in the Court of learned Judicial Magistrate, Kheda which came to be registered as Criminal Case No. 666 of 1998. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions which was numbered as Sessions Case No. 143 of 2000. 5. The Sessions Court framed charges against the accused vide Exhibit-7. The same was read over and explained to the accused - appellants, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced various ocular and documentary evidences to prove the guilt of the accused. 6. Upon conclusion of the trial, statement under section 313 of the Code of the accused-appellants came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the accused, convicted the appellant-accused by the impugned judgment and order. 7. I have heard Mr. B.P. Munshi, learned advocate for the appellants Mr. K.L. Pandya, learned APP for the respondent-State. Perused the record of Sessions Case No. 143 of 2000. 8. Mr. Munshi, learned advocate for the appellant vehemently submitted that the deceased did not die immediately after suffering the burn injury. Hence, in his submission, necessary essentials of section 34 of the Evidence Act are not satisfied. It is his further submission that there is no evidence to show that there was instigation by the appellants who were living separate about one and half kilometer away from the house of the deceased soon before the death. Hence, in his submission, necessary essentials of section 34 of the Evidence Act are not satisfied. It is his further submission that there is no evidence to show that there was instigation by the appellants who were living separate about one and half kilometer away from the house of the deceased soon before the death. He would also submit that Exh 22 dying declaration cannot be said to be voluntary as the deceased would not have been in a position to give dying declaration having suffered second and third degree burns. He would also submit that the endorsement of the medical officer as to whether the deceased was conscious or not was also not obtained before recording the dying declaration. Relying upon the decision of the Supreme Court in case of Sanju @ Sanjay Singh Sengar vs. State of MP reported in (2002) 5 SCC 371 that telling the deceased "to go and die" would not constitute abatement of suicide under section 107 of the IPC. He urged that the appellants may be acquitted of the charges levelled against him. 9. Per contra, Mr. Pandya, learned APP has supported the impugned judgment. He submitted that it is crystal clear from the evidence of Nazimabanu Mohammad Rafi-PW-4 as well as Exh-22-dying declaration and Exh-63- statement that the deceased was subjected to continuous and constant harassment by the appellants for not bearing child. He submitted that PW-4 has also stated that there was a demand of Rs. 25,000/- out of which Rs. 5000/- was paid and therefore also, the deceased was subjected to harassment. He therefore, submitted that the impugned judgment does not warrant interference. 10. The record reveals that the prosecution case against the appellant rests on the evidence of PW-1 as well as Exh-22 and Exh-63 statement of the deceased. 11. It needs to be noted at the outset that Anwarhussain Jamilahemad Siddiqui, PW 1 defacto complainant who is the brother of the deceased has not supported the prosecution case. He has stated in very clear words that his sister was not subjected to harassment by the appellant. 12. It emerges from the evidence of PW 4 that Rs. 25,000/- was demanded by acquitted accused No. 1-Irshadali-husband of the deceased as he wanted to start his own garage and that Rs. 5000/- was given so that peace prevails in the house of the deceased. 12. It emerges from the evidence of PW 4 that Rs. 25,000/- was demanded by acquitted accused No. 1-Irshadali-husband of the deceased as he wanted to start his own garage and that Rs. 5000/- was given so that peace prevails in the house of the deceased. However, this witness nowhere states that any demand was made by the present appellants. 13. It is very vividly clear from Exh 22 dying declaration and Exh 63 statement of the deceased as well as evidence of PW 4 that appellants were subjecting the deceased to harassment as she was not able to conceive child despite five years of marriage which prompted the deceased to commit suicide by pouring kerosene on herself. 14. The Supreme Court in case of Sanju @ Sanjay Singh Sengar vs. State of MP (supra) has made the following observations: "11. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. Acquitting the accused this Court said: "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 differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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." Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional... ..." 15. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional... ..." 15. In Exh-22-dying declaration and Exh-63-statement, the deceased has not stated that the appellants working her to bring money from her parental home In both these documents, the deceased has constantly stated that there used to be frequent quarrels between her and appellants owing to her inability to conceive within five years of marriage life. In Exh 22 dying declaration she has stated that at about 3:30 pm appellant No. 1 mother in law of the deceased has told her to die and therefore, out of anger she had poured kerosene on herself and alighted her. As has been held by the Supreme Court in case of Sanju @ Sanjay Singh Sengar vs. State of MP (supra) words spoken at the spur of the moment was a fit of anger or emotion without intending consequences to actually follow cannot be said to be an instigation under section 107 of the IPC to convict an accused for offence under section 306 of IPC. 16. So far as cruelty meted out to the deceased is concerned, Explanation A to section 498A requires any willful conduct decision of such a nature which would lead a woman to commit suicide or to cause grave injury or danger to her life limb or health. In the present case, even if it is assumed that the appellants were subjecting the deceased to taunts for not conceiving, in my view, it would not fall within the definition of the cruelty as contemplated under section 498A of IPC. 17. For the foregoing reasons appeal succeeds and is hereby allowed. The impugned judgment dated 28.11.2003 of the learned Joint District Judge and Second Fast Track Judge, Nadiad passed in Sessions Case No. 143 of 2000 cannot be sustained and the appellants are acquitted of the charges levelled against them. Fine, if paid, be refunded to the appellants. Since the accused persons are on bail their bail bonds stand cancelled and surety, if any stands discharged. R & P to be transmitted to the Trial Court.