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2020 DIGILAW 173 (GUJ)

Pankaj Ambalal Parmar v. State of Gujarat

2020-01-28

V.P.PATEL

body2020
JUDGMENT : 1. The appellant-accused has filed Criminal Appeal No. 896 of 2003 under Section 374 of the Code of Criminal Procedure (hereinafter referred as “the Code”) and State Government has filed Criminal Appeal No. 1031 of 2003 under Section 377 of the Code. Both the Criminal Appeals are arising out of the order and judgment dated 27.06.2003 passed by the Learned Additional Sessions Judge, Court No. 18, Ahmedabad, in Sessions Case No. 159 of 2002 (hereinafter referred as learned Trial Court). The learned Trial Court has convicted and sentenced passed against the appellant-accused as under: Sr. No. Offence Sentence Fine Sentence in default 1 306 of the IPC 02 Years SI Rs.1500/- I/D 3 months SI 2 509 of the IPC 02 Months SI - - Both the sentences shall run concurrently. 2. Heard learned advocate Mr. IG Mansuri, learned advocate for Mr. B.P. Gupta, learned advocate for the appellant-accused and Ms. Jirga Jhaveri, learned APP, for the Respondent-State. Facts of the case: 3. Mr. Dinesh Naginbhai Chauhan who is the brother of the deceased Naynaben has filed a complaint at Kagdapith Police Station, Ahmedabad city on 23.03.2001 at 18:15 hours. The said complaint was registered as Crime No. I-94 of 2001. 4. As per the complaint, the case of the prosecution is that the complainant is residing with his mother, sister and two brothers and his father was expired before 15 years. The accused Mr. Pankaj Ambalal Parmar was residing in Jethalal chawl nearby the residence of deceased. It is stated that the accused had been constantly threatening to deceased to marry with him since last 4 – 5 years. That he used to come to near the house of the deceased and harass the deceased by making vulgar gestures. And he was writing love letters to Naynaben. And because of this mental harassment and love letters, Nayanaben had filed a complaint before the Kagdapith Police Station. She had also filed an application against the appellant -accused. The Police has filed charge sheet for that purpose. The accused Pankaj Ambalal Parmar has made compromised and agreed that he will not harass the sister of the complainant. Inspite of this, the appellant-accused continued to harass the deceased Nayanaben. That his sister Nayanaben has told to all the family members that she is tired by harassment of Pankaj. The Police has filed charge sheet for that purpose. The accused Pankaj Ambalal Parmar has made compromised and agreed that he will not harass the sister of the complainant. Inspite of this, the appellant-accused continued to harass the deceased Nayanaben. That his sister Nayanaben has told to all the family members that she is tired by harassment of Pankaj. It is further stated that when the complainant had gone outside and his sisters Naynaben and Dakshaben were present at home, at that time at about 12.00 O’clock his sister Naynaben has consumed acid in the toilet because of constant harassment of Pankaj Ambalal Parmar. That Dakshaben has shouted and some people from nearby gathered. He also came there and shifted the Nayanben in rickshaw to the Vadilal Sarabhai Hospital for treatment. It is further stated that during the way to the hospital Naynaben has told him that Pankaj is harassing her and because of his harassment she could not live peacefully, therefore, she has taken this step of suicide. It is also stated that at that time, sister and neighbours were also present. Naynaben was admitted in emergency ward for treatment, at about 4:05 PM she was died, thereafter the complaint was filed. 5. After completing the investigation, the Investigating Officer has filed chargesheet before the Court of Metropolitan Magistrate which was registered as Criminal Case No. 1357 of 2001. The learned Chief Metropolitan Magistrate on 06.07.2002 committed the case under Section 209 of the Code as the offence is triable by the Sessions Court. The case was committed to City Civil and Sessions Court and the said case was registered as Sessions Case No. 159 of 2002. The learned Trial Court has framed charge for the offence punishable under Sections 306 and 509 of the IPC at Exh. No. 1 on 31.12.2002. The appellant accused has not pleaded guilty but claimed for trial. The prosecution has examined 09 witnesses and produced 11 documentary evidence before the learned Trial Court. Thereafter further statement of accused under Section 313 of the Code was recorded. After hearing the defence advocate and the APP learned Trial Court has passed the impugned order and judgment. Arguments of the advocate for the appellant-accused: 6. Learned advocate for the appellant submitted that the appellant-accused and the deceased were in love with each other and the appellant-accused wanted to marry with the deceased. After hearing the defence advocate and the APP learned Trial Court has passed the impugned order and judgment. Arguments of the advocate for the appellant-accused: 6. Learned advocate for the appellant submitted that the appellant-accused and the deceased were in love with each other and the appellant-accused wanted to marry with the deceased. However, this relation is not liked by the family members of the deceased due to difference of caste. That the learned Trial Court has wrongly appreciated dying declaration at Exh. No. 17, which was not believable. This dying declaration recorded by the police in emergency ward at hospital with no endorsement of the Doctor, who treated the deceased. That it is the case of the prosecution that the deceased has consumed acid because of which tongue and vocal part of the deceased was so damaged that she is unable to speak. That the Executive Magistrate is not called for recording the dying declaration. That the dying declaration is not in question and answer form and it is not natural. That the family members of the deceased were interested in convicting the appellant. That no independent witness is examined though such witnesses are available. That there is no proof of incidence of previous date as regards to the molestation. That the prosecution has not proved the ingredients of the Sections 306 and 509 of the IPC. That the prosecution has failed to establish the case against the appellant. The learned advocate for the appellant requested to allow his appeal and dismiss the appeal filed by the State Government and acquit the appellant. Argument of the APP for the State: 7. Learned APP has argued that dying declaration is taken by the Police Officer, it is reliable and trustworthy. That the mother, sister and brother of the deceased have supported the case of the prosecution. That the incident as regards to harassment by the accused to the deceased i.e. Nayanaben took place before one year for which the complaint was filed before the Kagdapith Police Station. In that complaint compromised was taken place and accused was agreed not to harass the deceased. It is further argued that the deceased has spoken as regards to the consumption of acid due to harassment of the accused. In that complaint compromised was taken place and accused was agreed not to harass the deceased. It is further argued that the deceased has spoken as regards to the consumption of acid due to harassment of the accused. The said fact was told to the Dakshaben Naginbhai Chauhan i.e. sister of the deceased and Gomtiben Naginbhai Chauhan i.e. her mother and Atulbhai Naginbhai Chauhan her brother. As per the deposition of the Police Officer who has recorded the statement in form of dying declaration has specifically stated that deceased was conscious and completely in a fit state of mind. Learned APP requested to allow the appeal filed by the State Government and to dismiss the appeal filed by the appellant-accused and enhance the sentence. Unnatural Death: 8.1 It is the case of the prosecution that the deceased Naynaben is expired by unnatural death. She has consumed acid due to harassment of the appellant accused and she committed suicide. 8.2 The prosecution has examined PW No. 1 Doctor Rohitbhai Chimanlal Jariwala at Exh. No. 5. It is stated that the Doctor Jalpaben Patel was serving in the V.S. Hospital as junior lecturer. At present she is in America. She has conducted the post mortem of the deceased Naynaben on 23.03.2001. The Post Mortem was started at 6:20 pm which was concluded at 7:20 pm. That she has prepared post mortem report. That the post mortem report was produced before the learned Trial Court. The witness Doctor Rohitbhai has identified the signature of the Doctor Jalpaben and the post-mortem report exhibited at Exh. 06. It is also stated that the deceased has died before six hours from the beginning of the post mortem. 8.3 On perusing the post mortem report, wherein it is stated that Brain – Congested and oedematous, both lungs – congested and oedematous, peritoneal cavity contains about 50-60 cc of brownish black colour sour smelling fluid. Lips shows collosion. Mucosa membrae of mouth and tongue show blackish connosion with carring present in mucosa membrae of oesophagus. Perforation seen on lower part of posterior surface of stomach size 20 m x 20 m Mucosa connoded, blackish discoloration with exterior connosion of nearing tissues and organs. Liver (with weight) and gall blader, Pancreas and Suprarenals, Spleen with weight, Kidneys with weight are congested oedamatous. Perforation seen on lower part of posterior surface of stomach size 20 m x 20 m Mucosa connoded, blackish discoloration with exterior connosion of nearing tissues and organs. Liver (with weight) and gall blader, Pancreas and Suprarenals, Spleen with weight, Kidneys with weight are congested oedamatous. Opinion as to the cause or probable cause of death is cardio respirators failure due to connosive acid poisoning however viscera preserved for C/A. 8.4 It is further deposed that the tongue was burnt by the acid, the viscera was sent to the FSL by the Doctor Jalpaben. She has identified the signature on the letter addressed to the FSL, Exh. No. 7. As per the report, Naynaben died due to Cardio respiratory failure by hydrochloric acid poisoning. 8.5 The prosecution has produced list of documentary evidence Exh. No. 4 wherein at serial No. 3, inquest panchanama has been shown. Learned advocate for the defence admitted the inquest panchnama. Thereafter, it was exhibited as Exh. No. 11. On perusing the said panchnama it is stated that at about 16:20 O’ clock, the Police Officer at Kagdapith Police Station has received a vardhi wherein it is stated that one girl namely Naynaben daughter of Naginbhai Chauhan has consumed acid due to harassment of Pankaj Ambalal Parmar on 23.03.2001 at about 12:00 O’ clock. She was admitted in emergency ward of V.S. Hospital, where she was expired at 4:20 pm. He reached to the post mortem room of the V.S. Hospital and conducted inquest panchnama. It is further stated in the panchanma that Mr. Dinesh Naginbhai was present there and he has stated that the dead body is of his sister Naynaben. She was died due to consumption of acid. 8.6 The prosecution has produced the FSL report at Exh. Nos. 23 -24 wherein it is stated that presence of hydrochloric acid is detected about 15.31% in the sample No. 1. The presence of hydrochloric acid is seen from the viscera of sample No. 2 which was taken from stomach and small intestine of deceased. The presence of hydrochloric acid is seen from the sample taken from viscera and liver and kidney. 9. Considering the medical evidence as above, it appears that the prosecution has established that the death of the deceased Naynaben was unnatural and she has committed suicide by consuming acid (poison). The presence of hydrochloric acid is seen from the sample taken from viscera and liver and kidney. 9. Considering the medical evidence as above, it appears that the prosecution has established that the death of the deceased Naynaben was unnatural and she has committed suicide by consuming acid (poison). Now this Court has to see that what is the role of the accused and what is the liability of the accused towards death of Naynaben. Evidence of Dying Declaration: 10. Learned APP has cited the judgment reported in AIR 2019 Supreme Court 4321, delivered in case of Jagbir Singh vs. State (N.C.T. of Delhi). The ratio laid down in the judgment is helpful in considering the multiple Dying Declaration, the Hon’ble Apex Court has held as under: “Para 19. But when a declaration is made, either oral or in writing, by a person whose death is imminent, the principle attributed to Mathew Arnold that truth sits upon the lips of a dying man and no man will go to meet his maker with falsehood in his mouth will come into play. The principles relating to dying declaration are no longer res integra and it would be apposite that we refer to the decision of this Court in Paniben (Smt) v. State of Gujarat wherein the concepts are summed up as follows: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [ (1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764 ] ) 2 (1992) 2 SCC 474 : ( AIR 1976 SC 2199 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [ (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 ] ; Ramawati Devi v. State of Bihar [ (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 ] ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [ (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 ] ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [ (1974) 4 SCC 264 : 1974 SCC (Cri) 426] )( AIR 1974 SC 332 ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021 ] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [ (1981) 2 SCC 654 : 1981 SCC (Cri) 581]) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ]) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ] ) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 ]) (X) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [ (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ]) Also, in paragraph 19, it was held as follows: “19. (State of U.P. v. Madan Mohan [ (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ]) Also, in paragraph 19, it was held as follows: “19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohanlal Gangaram Gehani v. State of Maharashtra [ (1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839 ] held: “where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.” “Of course, if the plurality of dying declarations could be held to be trust worthy and reliable, they have to be accepted.” The problem of multiple dying declarations has engaged the attention of this Court. Para 20. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, (1993) 2 SCC 684 this Court held as follows: “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same (Emphasis supplied) Para 23. In Amol Singh v. State of M.P., (2008) 5 SCC 468 the High Court rejected the plea on the basis that there being more than one dying declaration and on the basis that the extent of difference between the two declarations was insignificant: “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684 : 1993 SCC (Cri) 655] ) However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. (See Kundula Bala Subrahmanyam v. State of A.P. [ (1993) 2 SCC 684 : 1993 SCC (Cri) 655] ) However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.” Para 30. A survey of the decisions would show that the principles can be culled out as follows: (a). Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court; (b). If there is nothing suspicious about the declaration, no corroboration may be necessary; (c. No doubt, the court must be satisfied that there is no tutoring or prompting; (d). The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; (e). Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established; (f). However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable. (g). In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable; (h). The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two. (i). In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? Our Conclusion on multiple Dying Declaration Para 31. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relived of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” 11. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered.” 11. In criminal jurisprudence the prosecution has to prove its case by leading legal, relevant, cogent and reliable evidence. At the time of recording evidence, it may be depicted as oral evidence (Direct and indirect), documentary evidence (primary and secondary), real evidence (muddamal /thing). At the time of appreciation of evidence, the evidence on record may be depicted as substantive evidence, circumstantial evidence, corroborative evidence etc. Now what is substantive evidence? The evidence by which main fact is issued is decided, it can be named as substantive piece of evidence. Whether the particular evidence is substantive evidence or not that is required to be decided, considering the nature, effect and impact of evidence on the case on hand. The example of the substantive evidence are the dying declaration, evidence of injured witness, evidence of eye witness and evidence of prosecutrix etc. 12. In this case the substantive piece of evidence in form of dying declaration is produced by the prosecution. There are multiple dying declarations are produced in this case. In catena of the judgments, the Apex Court has held that the dying declarations is a substantive piece of evidence. There is no corroboration required if dying declaration is reliable and trustworthy, conviction can be held on sole dying declaration. In this case following dying declarations were recorded. 13. The prosecution has examined PW. No. 6, Dinesh Naginbhai Chauhan at Exh. 14 he is the complainant and brother of the deceased. He has stated in his deposition that the accused Pankaj Ambalal Parmar was constantly asking for marriage to his sister Naynaben. That the appellant-accused was behaving vulgarly and giving vulgar gestures to his sister Naynaben. That when he was went to office, at that time his sister was alone at home when her returned to home at evening her sister told him that accused Pankaj used to come near to his house. Her sister has filed a complaint at the Kagdapith Police Station as regards to the harassment of the accused. Thereafter, accused has agreed that he will not harass in future. Therefore, the appellant has stated before the community persons that he will not do this type of behaviour in future. Her sister has filed a complaint at the Kagdapith Police Station as regards to the harassment of the accused. Thereafter, accused has agreed that he will not harass in future. Therefore, the appellant has stated before the community persons that he will not do this type of behaviour in future. It is further stated that in Para-2, that inspite of this compromise, accused has continued to harass to his sister and therefore his sister committed suicide by consuming acid. 13.1 It is further stated that at the time of taking his sister Naynaben to the V.S. Hospital he had asked to her what has happened? She replied that Pankaj Ambalal Parmar is harassing daily and it is not tolerable by her therefore, she consumed acid. It is also stated by her that when you went to office and in absence of you he came to house and harassed her. Thereafter his sister was expired at About 4:00 O’clock in the V.S. Hospital. He has filed complaint in the Kagdapith Police Station. He has identified his signature on the complaint. He also identified the accused before the learned Trial Court. This witness has been cross examined by the defence advocate. He has denied the suggestions made by the learned advocate for the accused. He has denied that there was a love affair between the appellant and deceased. He has denied that there was no harassment on the part of the accused. 14. The prosecution has examined PW. No. 3 Gomtiben at Exh. No. 10, she is the mother of the deceased. She has deposed that on 23.03.2001, she was out of the station, thereafter, she went to her place of service. She was informed about the incident on telephone. So, she came at the house by rickshaw. She came to know that her daughter has consumed acid and she was taken to V.S. Hospital. 14.1 Therefore, she went to the V.S. Hospital where, she has seen that the treatment of her daughter was going on. She asked to Naynaben as to why she has taken this step? So, she came at the house by rickshaw. She came to know that her daughter has consumed acid and she was taken to V.S. Hospital. 14.1 Therefore, she went to the V.S. Hospital where, she has seen that the treatment of her daughter was going on. She asked to Naynaben as to why she has taken this step? At that time Naynaben replied that that when you went to service at that time, accused Pankaj chased her and threatened that “he will not allow her to marry with any other person.” It is further stated that “when she was standing in front of the house, then Pankaj came there and he continue to harass. That this behaviour is not tolerable by her therefore, she consumed acid.” It is further deposed by this witness that after that 3-4 hours of treatment the Naynaben was died, she has identified the accuse before the Court. 14.2 The defence has cross examined this witness, she had denied suggestion made by the defence advocate. It is admitted in her cross examination that she and the accused are belonging to different community. It is admitted there was no possibility of marriage between the her daughter and the accused. That her daughter’s engagement was not made before her death. She has admitted that the love affairs between the deceased and the accused. That the police complaint was filed by the deceased before two years from the incident and the compromise was made in that complaint. This witness has remained stick to the facts of the chief examination, nothing is revealed, which can damaged the prosecution case. 15. The Prosecution has examined PW No. 4 Dakshaben Nagingbhai Chauhan at Exh. No. 12. She is younger sister of the deceased Naynaben. She has stated in deposition that on 23.03.2001 the deceased Naynaben has consumed acid. When Naynaben came out from the toilet there was a acid bottle in her hand. Naynaben was fell down. Thereafter, she has told to Naynaben why she has done so? At that time Naynaben replied that appellant accused came in front of her house and harassed repeatedly by giving vulgar gestures. Therefore, she is tired and mentally upset. It is further stated by the Naynaben to her that though there is no relation with the appellant, however he was defaming her, therefore, she has taken this step. At that time Naynaben replied that appellant accused came in front of her house and harassed repeatedly by giving vulgar gestures. Therefore, she is tired and mentally upset. It is further stated by the Naynaben to her that though there is no relation with the appellant, however he was defaming her, therefore, she has taken this step. It is also stated that thereafter, she has shouted, therefore, neighbours were gathered. Her brother also came there. Thereafter, Naynaben was removed to the V.S. Hospital. She has called to her mother and told that Nayanben has consumed acid. She has identified the accused before the learned Trial Court. This witness is also cross examined by the defence. The suggestion was made by the learned advocate for the accused are denied. She has not admitted the love affairs between the accused and the deceased Naynaben. Nothing is revealed to damage the case of the prosecution. 16. The prosecution has examined PW No. 8 Rangusinh Roopsinh Zala at Exh. No. 16. He is the head constable and was assigned duty at the Kagdapith Police Station. He stated that at about 1:35 pm, he has received one vardhi from the V.S. Hospital, that one Naynaben had consumed acid and she has been admitted in emergency ward. That due to harassment of the Pankaj Ambalal parmar she has consumed acid. He reached to the emergency ward of the V.S. Hospital, where Naynaben was admitted. It is also stated that at that time Naynaben was conscious completely. He asked to Nayanaben and recorded the statement of the Naynaben. It is further stated that Naynaben has told that appellant who was residing in Jethalal Chawl constantly harassing her. That earlier complaint was filed in which compromise took place. It is also stated that on 22.03.2001 at about 8:00 O’ clock, the accused Pankaj was standing in front of her house at that time, he was sent by persuading by her brother. It is also stated that the signature of the Naynaben was taken after recording her statement. That he has tried for recording of dying declaration through Executive Magistrate. It is also stated that Naynaben died at about 4:05 p.m. The statement was recorded before him and the same is recorded as stated by the Naynaben. He has identified the signature of the Naynaben made by her on the statement, which is exhibited at Exh. No. 17. That he has tried for recording of dying declaration through Executive Magistrate. It is also stated that Naynaben died at about 4:05 p.m. The statement was recorded before him and the same is recorded as stated by the Naynaben. He has identified the signature of the Naynaben made by her on the statement, which is exhibited at Exh. No. 17. On perusing the Exh. 17 the facts and the contents of the document at Exh. No. 17 are proved. 16.1 On perusing the Exh. No. 17 the statement recorded by the Police Head Constable, now it is in the form of dying declaration, wherein it is stated that since she was young and studying, Mr. Pankaj Parmar, the appellant residing in the Jetha Pitambar’s chawl was used to come in front of her house. Therefore, she felt that outsider may thing that this boy has illicit relations with her. In this way he was harassing to her. For that purpose she has filed Police complaint for harassment about one year ago. Thereafter he had given undertaking that he will not harass therefore compromise was made. Inspite of that he has continued to harass her. It is stated that on 22.03.2001 at about 8:00 O’clock, the appellant was standing in front of deceased Naynaben’s home and keeping watch of her, at that time her brother driven up the appellant by scolding. It is also stated in the statement that today this boy Pankaj (Appellant) was harassing her and he was standing in front of her house therefore, she felt that she will be defamed and he will defame her. And It was taken to heart by her. She has consumed acid which is kept for toilet cleaning, at about 11:30 am. At that time, her sister came and shouted. Thereafter, other persons were also gathered including Manguben, her brother Dineshbhai, etc and she was removed to V.S. Hospital in rickshaw and admitted in emergency ward came there. 16.2 This witness is also cross examined by the defence. He has admitted that he has not done any attempt to get recording of the dying declaration by Executive Magistrate. It is also admitted that before recording the statement of Naynaben he has not taken endorsement of doctor as regards to the mental and physical fitness of the Naynaben. It is denied that he has not recorded the statement. He has admitted that he has not done any attempt to get recording of the dying declaration by Executive Magistrate. It is also admitted that before recording the statement of Naynaben he has not taken endorsement of doctor as regards to the mental and physical fitness of the Naynaben. It is denied that he has not recorded the statement. It is also denied that Naynaben had not stated by her mouth but the statement was recorded at the instance of the relative of the deceased. 16.3 The learned advocate for the appellant submitted that no endorsement as regards to fit state of mind of the deceased Naynaben was taken by the Police Head Constable while recording the statement. Therefore, it cannot be considered as reliable and trustworthy. Learned APP relied upon the judgment of five Judges Bench reported in AIR 2002 SC 2973 delivered in case of Laxman Vs. State of Maharashtra, wherein Hon’ble Supreme Court has held as under: “3. Since the accused has no power of cross examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise”. 16.4 On perusing the Exh. No. 17 statement recorded by the Head Constable now it is in the form of dying declaration, the head constable has recorded some basic family history wherein the deceased Naynaben has stated about her name, age, address, occupation, etc. thereafter, she has stated that she with her mother, brother and sister living at the above address. She is doing household work. Her father had expired 15 years ago. They are three sisters and two brothers among them she is number two. She was not married. This fact shows that the head constable had inquired about her family background etc. The reply given by the deceased Naynaben shows that she is mentally fit to give reply. It appears that upon these questions head constable has satisfied that she is able to answer the questions asked to her and she is in fit state of mind. This fact shows that the head constable had inquired about her family background etc. The reply given by the deceased Naynaben shows that she is mentally fit to give reply. It appears that upon these questions head constable has satisfied that she is able to answer the questions asked to her and she is in fit state of mind. As per the judgment of Hon’ble Supreme Court as above, there is no requirement of law that the dying declaration must be necessarily be made to a magistrate and further person who records the dying declaration must be satisfied that the deceased was in a fit state of mind. 16.5 In view of the above and considering the contents of the statement at Exh. 17, it appears that the head constable satisfied that the deceased is in a fit state of mind and able to answer if the question put to her. Therefore, the argument as regards to no endorsement on the dying declaration is not tenable in eye of law. Other Evidence: 17. The prosecution has examined PW. No. 5 Atul Naginbhai Chauhan, at Exh. No. 13, who is the brother of the deceased Naynaben. He was stated that accused was harassing her sister. He chased her sister so many times. Therefore, he has scolded the accused. Inspite of that he has continued to harassing deceased. It is stated that due to harassment of the accused his sister has consumed acid. He has identified the accused. 18. The prosecution has examined PW. No. 2 Nathabhai Vashrambhai at Exh. No. 8. He is panch witness of panchnama of the scene of offence. He has narrated the facts as regards to the scene of offence of Panchanama. He has also stated that the Police has collected the yellowish liquid in the bottle and he made signature on panchnama. He has supported the case of the prosecution. 19. The prosecution has examined PW. No. 09 Mr. Gunvant Harkhabhai at Exh. No. 18. He is a Investigating Officer. He has deposed about whatever done by him in the investigation. He is formal witness. He has denied in para 5 of the cross examination that the deceased and accused were in relationship. 20. 19. The prosecution has examined PW. No. 09 Mr. Gunvant Harkhabhai at Exh. No. 18. He is a Investigating Officer. He has deposed about whatever done by him in the investigation. He is formal witness. He has denied in para 5 of the cross examination that the deceased and accused were in relationship. 20. Learned advocate for the appellant argued that the appellant- accused and deceased were in love-affair but the parents are not permitting them to do so, due to caste difference of accused and the deceased. This argument cannot be accepted as there is evidence that the deceased had filed a police complaint of harassment before one year of the incident. This shows that the deceased was not in love affair with the appellant-accused. Even if, one sided love does not permit to harass other party. 21. Learned advocate for the appellant also argued that Executive Magistrate has not recorded the dying declaration and it is not in question-answer form. In view of the judgment in Laxman Vs. State of Maharashtra (Supra), Hon’ble Supreme Court has held that there is no statutory provisions that the dying declaration must be necessarily be made to the Magistrate. Therefore, the argument of the learned advocate for the appellant that not recorded the dying declaration by the Magistrate is not accepted. If such statement is recorded by the Magistrate there is no statutory form for such recording of dying declaration. 22. Learned advocate for the appellant has argued that no independent witness is examined. In this case, the neighbour is examined at PW No. 7 at Exh. No. 15. He is the neighbour of the deceased and complainant. He has stated in his deposition that that he came to know about the acid consumed by the deceased. The said fact is told by the Dakshaben. He has stated that he has no conversation with the Naynaben. This argument is not tenable in eye of law. No. 15. He is the neighbour of the deceased and complainant. He has stated in his deposition that that he came to know about the acid consumed by the deceased. The said fact is told by the Dakshaben. He has stated that he has no conversation with the Naynaben. This argument is not tenable in eye of law. This Court has come across the judgment reported in 2000(2) SCC 646 , the judgment delivered in Ambika Prasad vs. State (Delhi Administration), the Hon’ble Supreme Court held as under: “Para 12: It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of P.W. 5 and P.W. 7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. First, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to co-operate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with similar contention in State of U.P. v. Anil Singh, ( AIR 1988 SC 1998 : 1989 Cri LJ 88) (supra) this Court observed (para 13):- “.... In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It, is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.” 23. It, is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.” 23. Learned advocate for the appellant cited the following judgments: (A) M. Mohan Vs. State represented by Dy. SP reported in 2011(3) SCC 626 , wherein the Hon’ble Supreme Court has held in Para 44 & 45 as under: “44 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. 45. The intention of the legislature and the ratio of the cases decided by this Court are 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.” (B) Gangula Mohan Reddy Vs. State of Andhra Pradesh (Supra) reported in 2010(1) SCC 750 . This judgment is referred and considered in the above judgment in case of M. Mohan (Supra) in Para 17, therefore, no further discussion is necessary. (C) Mahendra Singh and Another Gayatribai Vs. State of M.P. reported in 1995 Supp (3) SCC 731. This judgment is also referred in above judgment in case of M. Mohan (Supra) in Para 32, therefore, no further discussion is required. (D) Ramilaben Hasmukhbhai Khristi and Anr. Vs. State of Gujarat reported in 2002(3) GLH 129 , wherein, the Hon’ble Supreme Court discussed about the multiple Dying Declaration. This judgment is not helpful to the present case because in the cited judgment, the dying declarations were not in consistent to each other. This Court has discussed the judgment of the Hon’ble Supreme Court Jagbirsing (Supra) and AIR 2019 SC 4321 and Laxman Vs. State of Maharashtra (Supra) hereinabove. This Court has taken into consideration the ratio laid down in the above judgment, therefore no further discussion is required for the cited judgment. This Court has discussed the judgment of the Hon’ble Supreme Court Jagbirsing (Supra) and AIR 2019 SC 4321 and Laxman Vs. State of Maharashtra (Supra) hereinabove. This Court has taken into consideration the ratio laid down in the above judgment, therefore no further discussion is required for the cited judgment. The learned advocate has cited judgment of M. Mohan Vs State (Supra) also not helpful to the present case because the appellant accused has intentionally adding the deceased by repeated harassment. The positive action on the part of the accused to instigate or aid in committing the suicide is proved by the prosecution. (E) M. Arjunan Vs. State represented by its Inspector of Police reported in 2019(3) SCC 315 , the Hon’ble Supreme Court held in Paras 7 and 8 as under: “7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC. 8. In our considered view, in the case at hand, Mo 1 letter and the oral evidence of PW 1 to PW 5, would not be sufficient to establish that the suicide by the deceased was directly linked to the instigation or abetment by the appellant-deceased. Having advanced the money to the deceased, the appellant-accused might have uttered some abusive words; but that by itself is not sufficient to constitute the offence under Section 306 IPC. From the evidence brought on record and in the facts and circumstances of the case, in or view the ingredients of Section 306 IPC are not established and the conviction of the appellant-accused under Section 306 IPC cannot be sustained.” This judgment is not helpful to the present case because the essential ingredients as regards to the offence under Section 306 of IPC i.e. abetment and intention of accused to aid or instigate or abet the deceased to commit suicide is proved by the prosecution beyond reasonable doubt. 24. 24. In view of the evidence discussed hereinabove following facts emerged: (A) There are three oral dying declarations, which are before the relatives of the deceased i.e. mother, brother and sister. (B) One written dying declaration in form of police statement recorded by the head constable. (C) All dying declarations are not in conflicting with each other but they are in consonance with each other. (D) The fact as regards to the previous incident is supporting to the contents of all the dying declarations i.e. “harassment of the accused to the deceased” is established by prosecution. (E) That the dying declaration is not result of tutoring, prompting or imagination. The dying declarations are supported by the forensic evidence i.e. FSL Report. (F) The dying declarations are supported by the medical evidence. Considering the contents of the dying declarations, this Court found that the dying declarations are reliable and trustworthy. Sentence and enhancement appeal: 25. The State has filed the Criminal Appeal No. 1031 of 2003 for enhancement of sentence. This Court has considered reasons stated by the learned Trial Court for two years imprisonment and fine. The Trial Court has considered the appellant was 22 years of age and is only son of his parents, re-formative theory and other circumstances. This Court has found that the reasons are adequate, legal, true and correct in eye of law. Therefore, there is no need to interfere in the sentence awarded by the learned Trial Court, therefore, the appeal filed by the State Government is required to be dismissed. 26. Considering ratio laid down by Hon’ble Supreme Court in above referred cases, the reasons mentioned in the memo of appeal, the arguments advanced by the learned APP and the learned advocate for the Appellant-accused, oral as well as documentary evidence as discussed above, and looking to the facts and circumstances of the case, I am of the view that the prosecution has proved that the deceased Naynaben has committed suicide and appellant accused has abetted the commission of suicide by instigating or intentionally aids by harassing the deceased. It is also proved appellant accused has intending to insult the modesty of deceased Nayanaben by uttering words, making gesture. It is also proved appellant accused has intending to insult the modesty of deceased Nayanaben by uttering words, making gesture. I found that the learned Trial Court has come to a right conclusion and convicted the appellant therefore, the appeal filed by the appellant as well as appeal filed by the State requires to be dismissed. Hence, following order is passed: FINAL ORDER (A) The present conviction appeal being Criminal Appeal No. 896 of 2003 filed by the appellant-accused and the enhancement Appeal being Criminal Appeal No. 1031 of 2003 filed by the State fail and are hereby dismissed. (B) The judgment and order dated 27/06/2003 passed by the learned Additional Sessions Judge, Court No. 18, Ahmedabad in Sessions Case No. 159 of 2002 convicting the appellant-accused under Section 235(2) of the Code for the offence under Section 306 of the IPC and imposing sentence of 2 (Two) years Simple Imprisonment and fine of Rs.1500/- (Rupees One Thousand Five Hundred Only), in default, to undergo further 3 (Three) months of Simple Imprisonment and 2 (Two) months Simple Imprisonment for the offence under Section 509 of the IPC is hereby confirmed. (C) The bail bond of the appellant-accused stands cancelled and the appellant-accused be taken into custody to undergo the remaining sentence. (D) The appellant-accused is entitled to set off for the period of detention already undergone during the investigation and trial. (E) The appellant-accused shall surrender within six weeks from today, failing which, the Trial Court shall issue non-bailable warrant to proceed for execution of sentence in accordance with law. (F) The Registry is directed to send copy of this judgment to the concerned Court for certification under Section 388 of the Code. (G) Record and proceedings be sent back to the Court concerned forthwith.”