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2023 DIGILAW 390 (GUJ)

STATE OF GUJARAT v. DIPAKJI SOMAJI THAKOR

2023-03-01

A.Y.KOGJE

body2023
JUDGMENT : A.Y. KOGJE, J. 1. Present Appeal is preferred under Section 378(1)(3) of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 11-05-2010 passed by the Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 79 of 2008. By the aforesaid judgment and order, the respondents have been acquitted for the offences under Section 498(A), 306 and 114 of the Indian Penal Code. 2. F.I.R. was registered being C.R. No. I-110 of 2007 registered with Vejalpur Police Station, Ahmedabad on the basis of allegations by the complainant-father of the deceased-victim alleging that the victim namely Gazal was married to one Dineshbhai Thakor on 19-05-2006 and had started residing in joint family of the husband, who are respondents-accused herein. It is alleged therein that while the deceased was residing with family of the respondents-accused, mental and physical harassment was meted out by the relatives of her husband. As a result of which, husband and wife had started residing separately. Still, there was continuous harassment, as a result of which suicide was committed by the deceased-victim; Gazal by jumping into the river. 3. The Sessions Court upon conclusion of the trial has recorded the acquittal giving benefit of doubt to the respondents-accused. 4. Learned Additional Public Prosecutor has submitted that an error is committed in recording acquittal despite sufficient evidence on record to establish the requirement of Section 498 of the Indian Penal Code, which has lead the victim to commit the suicide. It is submitted that 10 witnesses were examined on behalf of the prosecution and 11 documents were produced and exhibited. It is submitted that all the prosecution witnesses namely PW-1 to PW-5 were independent witnesses, who had deposed towards the conduct of the respondents-accused, which amounted to harassment to the deceased-victim and therefore, an error is committed in discarding the evidence of such independent witnesses, who were witnesses to the circumstance drawing the victim to commit suicide. 5. Learned Additional Public Prosecutor has submitted that there was sufficient medical evidence to establish the fact of suicidal death beyond reasonable doubt and that itself is important circumstance, which can be basis for appreciating the evidence of the independent witnesses in the correct perspective. 6. 5. Learned Additional Public Prosecutor has submitted that there was sufficient medical evidence to establish the fact of suicidal death beyond reasonable doubt and that itself is important circumstance, which can be basis for appreciating the evidence of the independent witnesses in the correct perspective. 6. Learned Additional Public Prosecutor has finally submitted that the Sessions Court has thoroughly disregarded the provisions of the Indian Evidence Act considering the matrimonial period and application of Section 113 of the Indian Evidence Act, as the marriage period was less than 7 years. 7. Learned Additional Public Prosecutor has submitted that entire case of the prosecution was genuine, as it is evident that during the entire course of prosecution, husband of deceased-victim is not made as an accused and therefore, implication is only of those relatives, who have actually played role in meting out physical and mental torture. 8. Learned Advocate for the respondents is absent. 9. Having considered the submissions made and having perused the documents on record, it appears that incident arose of suicide committed by the victim namely Gazal, who jumped into the river and died. For that reason, accidental death was registered on 08-03-2007. Ultimately, F.I.R. came to be registered on 13-03-2007 against the respondents-accused. The respondent-accused No. 1 being brother-in-law, respondent-accused No. 2 being wife of the respondent-accused No. 1 and respondent-accused No. 3 being mother-in-law of the deceased. 10. Vide Exh-13, charge was framed for offence under Section 498(A) read with Section 114 of the Indian Penal Code and Section 306 read with Section 114 of the Indian Penal Code. Charge framed was to the extent that after marriage of the deceased-victim; Gazal, respondents-accused used to harass the victim on small issues and were taunting her and were meted out physical and mental harassment attracting Section 498(A) of the Indian Penal Code. Charge was also framed that on account of the mental and physical harassment, the deceased-Gazal and her husband had started residing separately prior to one and half month of the date of incident and on 07-03-2007, accused persons had come to Vejalpur and fought with her, which lead to deceased-victim to commit suicide in the early hours of 08-03-2007 by jumping from Ellisbridge into Sabarmati River. 11. 11. The factum of suicidal death was established by examining Medical Officer PW-6 at Exh-19, through whom, Exh-20 Postmortem Note was placed on record, which has given conclusive opinion that the cause of death is asphyxia as a result of drowning. 12. Once the issue regarding suicidal death is established, the Court will have to examine role of each of the respondent, as to whether such an Act attributed to the respondents-accused would attract the provision of Section 498(A) or 306 of the Indian Penal Code. For the purpose of attracting Section 498(A) of the Indian Penal Code, requirement is of subjecting woman to ‘cruelty’ at the hands of relatives of husband. It would be upon the prosecution to establish ‘cruelty’ beyond reasonable doubt, as provided for in explanation under Section 498(A) of the Indian Penal Code. 13. The explanation clearly provides the Act of ‘cruelty’ to be any willful conduct, which is of such a nature as is likely to drive the woman to commit suicide of the harassment has to be of such a nature with specific object of coercing woman or any person relating to her to meet any unlawful demand. Every Act of harassment need not fall within the definition of ‘cruelty’ as provided for in the explanation to Section 498(A) and it would be duty of the prosecution to establish that ‘cruelty’ or harassment was unabated, incessant, persistent and of such a grave nature that it would be unbearable for a woman to such extent that it may drive such woman to commit suicide. 14. The Court has taken into consideration the evidence of Prosecution Witness No. 4-father, who is also complainant, who has in his deposition stated that on account of differences between the respondents-accused and his daughter, his daughter and her husband had started residing separately at a different place. However, there is no reference to any act of the respondents-accused, which would attract ingredients of ‘cruelty’ as provided for in the explanation. 15. Moreover, in the cross examination of this witness, it is coming out on record that prior to the marriage, the deceased victim-Gazal appears to have eloped with one Sunilbhai Rajubhai Chavda in connection of which wife of the present witness (mother of the deceased) had filed complaint with Madhupura Police Station on 19-10-2005. He has also deposed that his daughter-deceased victim’s nature was short tampered and aggressive. 16. He has also deposed that his daughter-deceased victim’s nature was short tampered and aggressive. 16. The Court has perused the evidence of PW-5 at Exh-18 mother of the deceased victim. In her deposition, she has also referred to that the respondents-accused were harassing her daughter, because of which her daughter and her husband had started residing separately. In the entire deposition, there is no specific Act attributed to the respondents-accused to attract Section 498(A) of the Indian Penal Code. This witness also has deposed regarding filing of the complaint regarding elopement of deceased victim with one Sunilbhai Rajubhai Chavda at Madhupura Police Station and that has answered that within her community, this fact was known and therefore, she was tensed as to how and with whom, her deceased daughter (since deceased) would marry. 17. Perusal of the evidence of other witnesses in this regard also, does not make out a case of such an act being attributed to the respondents-accused, which would constitute ‘cruelty’ to attract Section 498(A) of the Indian Penal Code. 18. Undoubtedly, marriage period is of 10 months and therefore, provision of Section 113-A of the Indian Evidence Act would apply. However, stage of application of Section 113-A of the Indian Evidence Act would arise only when there is initial evidence of any act on the part of the accused, which would fall in the definition of cruelty. Even for the purpose of attracting Section 113-A of the Indian Evidence Act, one of the circumstance, which has to be considered by the Court is whether alleged act was of such cruel nature as was likely to drive the woman to commit suicide. 19. As discussed above, none of the witnesses except for stating that there used to quarrels has attributed any specific Act, which can be amount to ‘cruelty’. This aspect will have to be considered on an admitted position, which has emerged on record from the evidence of the aforesaid two witnesses that husband and wife had started residing separately from the respondents-accused almost for a period of one month prior to the date of incident. 20. The Court finds that though in the charge, it is narrated that on 07-03-2007 at 23.30 hours, accused persons had gone to Vejalpur, where the deceased and her husband were residing and had quarreled. 20. The Court finds that though in the charge, it is narrated that on 07-03-2007 at 23.30 hours, accused persons had gone to Vejalpur, where the deceased and her husband were residing and had quarreled. However, perusal of evidence of the witness including the complainant has not deposed anything with regard to the incident on 07-03-2007 at 11.30 pm. Though in the F.I.R. the complainant has indicated that he received phone call from his son-in-law-Dineshbhai Thakor (husband of the deceased) from Vejalpur and at that time, he could hear on phone about reprimand being given to the deceased-Gazal by the respondents-accused. This version has not found place in the deposition of the witness nor has the prosecution examined the husband of the deceased-Dineshbhai Thakor as a witness. 21. In view of the aforesaid, also the prosecution appears to have failed to establish any proximate reasons or the incident, which amounts to harassment to the deceased to drive her to commit suicide. 22. The Court finds it useful to refer to the decision of Apex court in case of Gurjit Singh vs. State of Punjab, AIR 2020 SC 1785 , where while considering the case, which also attracted the provisions of Section 306, 498(A), 304(B) of the Indian Penal Code and also attracting the provision of Section 113-A of the Indian Evidence Act, has held that even when the provision of Section 498(A) of the Indian Penal Code were successfully established, still it is the duty of the prosecution to prove ‘cruelty’ to such an extent and of such a nature, which leaves no choice for the deceased, but to commit suicide. In absence of prosecution to do so beyond reasonable doubt, charge of Section 306 of the Indian Penal Code cannot be held to be proved. While dealing with Section 306 of the Indian Penal Code by employing Section 113-A of the Indian Evidence Act, the Apex Court has held in Para-24 to 27, as under: “24. It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide. 25. In Mangat Ram vs. State of Haryana, this Court observed thus: “28. The prosecution has to establish beyond reasonable doubt that the accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide. 25. In Mangat Ram vs. State of Haryana, this Court observed thus: “28. We have already indicated that the trial court has found that no offence under Section 304B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below......Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.” 26. After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj AIR 2004 SC 2790 , observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case. 27. It could thus be seen, that the view taken by the three Judge Bench of this Court in the case of Ramesh Kumar AIR 2001 SC 3837 , that when a case does not fall under clause secondly or thirdly, it has to be decided with reference to the first clause, i.e., whether the accused has abetted the commission of suicide by intentionally instigating her to do so; has been consistently followed. As such, we are of the view that merely because an accused is found guilty of an offence punishable under Section 498-A of the IPC and the death has occurred within a period of seven years of the marriage, the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113-A of the Evidence Act. Unless the prosecution establishes that some act or illegal omission by the accused has driven the deceased to commit the suicide, the conviction under Section 306 would not be tenable.” 23. The Court has perused the judgment and order of the Sessions Court and has found that the Sessions Court has referred to the evidence in extenso and has given cogent reasons in recording acquittal. 24. This Court while accepting the reasoning given by the Sessions Court and so also the separate reasoning given herein above, the Court is not inclined to interfere with the acquittal recorded. 25. In view of the above, no case is made out for interference. Hence, the Appeal is hereby dismissed.