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2024 DIGILAW 682 (GUJ)

Jani Jainendrakumar Dilipbhai v. State Of Gujarat

2024-04-01

M.K.THAKKER

body2024
JUDGMENT : 1. Present appeal is preferred under section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Cr.P.C.’), challenging the judgment and order of conviction passed by Learned Additional Sessions Court, Mehsana in sessions case No.132 of 2009 dated 09-05- 2011, whereby appellant-accused was convicted for the offence punishable under section 498 A of the Indian Penal Code (hereinafter referred to as the ‘IPC’) and was ordered to undergo the sentence of rigorous imprisonment of 03 years alongwith fine of Rs.5,000/- and in default further period of simple imprisonment of 01 month was ordered. 2. The appellant was further convicted for the offence punishable under section 306 of the Indian Penal Code and was ordered to undergo sentence of rigorous imprisonment of 05 years alongwith fine of Rs.10,000/- and in default further period of 03 months of simple imprisonment was ordered. Learned Trial Court has ordered all the sentence to run concurrently. 3. It is the case of the prosecution that an FIR came to be filed before Mehsana Taluka Police Station against 04 accused wherein the present appellant was named as accused No.1-husband, accused No.2-father-in-law, accused No.3-brother-in-law and accused No. 4–mother-in-law for the offences punishable under sections 498A, 306 and 114 of the IPC bearing First CR. No. 163 of 2009. 4. It is the case of the complainant who is the father of the deceased namely Mrs.Binalben whose marriage was solemnized in the year 1995 with accused No. 1, that she was harassed and tortured physically as well as mentally by all the accused on the ground of dowry. It is further alleged in the FIR that accused No.1 had demanded Rs.3,00,000/- from the complainant and on non-fulfilling the demand, the deceased was sent to her paternal house after being beaten. Due to the harassment, the deceased lost her mental ability and at the house of the parents around 20:30 p.m. on 09-08-2009 she consumed an overdose of the medicine which was prescribed for depression and committed suicide. 5. On setting Criminal law in motion and after investigation was concluded, the charge-sheet came to be filed against all the accused for the offences punishable under sections 498A, 306 and 114 of the IPC and section 3 and section 4 of the Dowry Prohibition Act. 5. On setting Criminal law in motion and after investigation was concluded, the charge-sheet came to be filed against all the accused for the offences punishable under sections 498A, 306 and 114 of the IPC and section 3 and section 4 of the Dowry Prohibition Act. As the case is tried by the Learned Sessions Court, therefore same was committed to the Learned Sessions Court under section 209 of the Cr.P.C. On being verified with regard to receiving charge-sheet papers, charges came to be framed below Ex. 3 against all the accused and their plea came to be recorded below Exh.4 to 6. The accused pleaded not guilty and claimed to be tried. To bring the guilt, the prosecution had examined 10 witnesses and produced 27 documentary evidences, details of the same is mentioned herein below:- ORAL EVIDENCE Sr. No. Details of Oral Evidences Exh. 1 Statement of Dr. Prakash Pravinbhai Patwa 11 2 Statement of complainant Mr.Arvindkumar Chandulal Jani 17 3 Statement of witness Mr.Apurva Arvindkumar Jani 21 4 Statement of witness Mr.Nigamkumar Rajendrabhai Thakkar 22 5 Statement of Panch Mr.Mehulbhai Pravinchandra Shah 23 6 Statement of witness Mrs.Ramilaben Pravinbhai Shah 28 7 Statement of P.S.O.Mr.Khumansinh Chamansinh Parmar 29 8 Statement of A.S.I. Mr.Sendhabhai Shankarbhai Makwana 32 9 Statement of Po.S.I. Mr.Dilipkumar Madhavrao Raleganvkar 37 10 Statement of Mr.Ranjitsinh Nathubha Chauhan 42 DOCUMENTARY EVIDENCE Sr. No. Details of Documentary Evidences Exh. No. Details of Documentary Evidences Exh. 1 Reminder by P.S.I to Medical Officer 12 2 Postmortem Report 13 3 Cause of Death Certificate 14 4 Reminder by Medical Officer to P.O. Mehsana, Taluka Police Station 15 5 Copy of Prescription given by Dr.R.B.Agrawal 18 6 Panchnama of Muddamal Recovery 24 7 Slip signed by the complainant during the recovery of the goods in question 25 8 Panchnama of the crime scene 26 9 Inquest Panchanama 27 10 Copy of Station Diary 30 11 Deputy Order 31 12 Application made by the plaintiff to DSP Shri Mehsana 33 13 Order passed by the DSP to P.O. Mehsana 34 14 Application made by the plaintiff to PO Mehsana 35 15 Reminder sent by ASI to Police In-charge Mehsana regarding the application filed by the complainant 36 16 List written by the Police Incharge for investigation 38 17 Plaintiff’s complaint 39 18 Postmortem report on sending the corpse to the Civil Surgen 40 19 Application written by the Police Officer to the Medical Officer for the cause of death 41 20 Despatch note regarding Muddamal sent to FSL 43 21 Histopathology Report 44 22 Receipt of the Muddamal sent to FSL in a sealed pack 45 23 Forwarding letter of the FSL 46 24 FSL Report 47 25 Letter written by P.S.I Ta. Police Station to Ex. Magistrate for the Inquest Panchanama of the corpse. 48 26 Letter written by P.S.O. to P.S.I Mehsanan Taluka Police Station 49 27 Closing pursis of the complainant 50 6. On filing the closing pursis, further statement under section 313 of the Cr.P.C. came to be recorded wherein all incriminating material was put before the accused persons, accused pleaded false implications and stated that deceased was suffering from mental and heart ailments and she has undergone the treatment before various doctors and she died because of the same. In order to prove the defense, the accused had examined Dr.Radheshyam below Ex.54 and thereafter filed the closing pursis below Ex.56. 7. After considering the evidence placed and the arguments advanced by the Learned Advocate for the respective parties, learned Trial Court came to the conclusion that accused No.1 is guilty for the offence punishable under sections 498A and 306 of the IPC and therefore he was convicted and ordered to undergo the sentence as stated above, which is impugned before this Court. 8. 8. Heard Learned Advocate Mr.Chirag Patel for the appellant and Learned APP Ms.Monali Bhatt for the state. 8.1. Learned Advocate Mr.Chirag Patel submits that Learned Trial Court has committed an error in not considering the evidence of Dr.Radheshyam Bansilal Agarwal, who was examined by the defence in a true and correct perspective, as from the evidence of the said witness, it comes on record that deceased was suffering from phobic depression and in the said depression, the deceased would have negative thoughts, would not have any interest in the social and other work, that the deceased was treated by the Doctor on 10-06-2009 and for 10 to 20 days medicines were prescribed. However, as she did not take the medicines regularly, therefore there was no improvement in her condition. When she was examined again after 3 months, the other medicine namely Etilaam, Lapron and Theodep was prescribed. From the evidence of this Doctor, it further came on record that if the patient took 06 tablets of lapron, at a time as well as 6 tablets of theodep at a time, then no death could be caused due to overdose. However if overdose of lethal medicine was taken, then there would be a chance of death due to poison. The prescription which was given is produced below Ex.80, through the evidence of this Doctor. Learned Advocate Mr.Patel submits that, though the chances of death due to overdose as stated by this witness is very less, learned Trial Court committed an error in believing the case of prosecution that due to overdose of this medicine, the deceased died. 8.2. Learned Advocate Mr.Patel further submits that, from the evidence below Ex.47 i.e. the report of the FSL dated 15-09-2009, it comes on record that there was no poisonous substance found from the body of the deceased. Learned Advocate Mr.Patel further draws the attention of the cause of death stated in the postmortem report below Ex.19 wherein final conclusion given is “cardio respiratory failure due to pulmonary edema, circumstantial evidence has to be considered.” 8.3. Learned Advocate Mr.Patel submits that there was no any mark of injury found during the postmortem report, however, Learned Trial Court has convicted the appellant for the offence punishable under sections 498 A and 306 of the IPC. 8.4. Learned Advocate Mr.Patel submits that there was no any mark of injury found during the postmortem report, however, Learned Trial Court has convicted the appellant for the offence punishable under sections 498 A and 306 of the IPC. 8.4. Learned Advocate Mr.Patel further relies on the evidence below Exh.50 i.e. report of Dr.Prakash Patwa and Exh.44 i.e. report of B.J.Medical wherein it comes on record that no chemical poison is found because of the consumption of 4 depron and 6 theodep tablets however, the same was not considered by the learned Trial Court and convicted the appellant for the charges leveled against him. 8.5. Learned Advocate Mr.Patel submits that, so far as the harassment and cruelty defined under section 498A of the Cr.P.C. are concerned, learned Trial Court has relied on the evidence of the complainant, who was examined below Exh.33 who has deposed in his evidence that because of the demand of dowry of Rs.3,00,000/- by the appellant before 15 days, the deceased was dropped at the house of her parents and in the presence of the brother of the deceased she was beaten by the husband, it was believed by the learned Trial Court without corroborating with the further evidence of the other independent witness, namely, neighbor who also was present at the house of the parents. 8.6. Learned Advocate Mr.Patel further submits that, complainant, in his deposition stated that, earlier the application was given to the DSP which was produced below Ex.33 and thereafter said application was disposed of through the report submitted by the ASI below Ex.36, wherein, it is mentioned that amicable settlement has arrived between the parties and therefore complainant did not ask for further proceedings, without considering the same the learned Trial Court has convicted the respondent-accused. Learned Advocate Mr.Patel submits that though Learned Trial Court has acquitted the present appellant for the offence of Dowry Prohibition Act, however, for the same evidence conviction was ordered for the offence punishable under section 498 A of the IPC. 8.7. Learned Advocate Mr.Patel submits that, marriage span of the deceased was 14 years and she was having two children, but because of the ill mental health, both the children were residing with the appellant when she was dropped at the house of the parents. 8.8. 8.7. Learned Advocate Mr.Patel submits that, marriage span of the deceased was 14 years and she was having two children, but because of the ill mental health, both the children were residing with the appellant when she was dropped at the house of the parents. 8.8. Learned Advocate Mr.Patel relies on the decision rendered by the Apex Court in the case of Pashaura Singh vs State Of Punjab & Anr, reported in 2010 (11) SCC 749 and submitted that charge of dowry was not believed by the learned Trial Court and in the absence of allegation of dowry section 498A of the IPC cannot be attracted. 8.9. Learned Advocate Mr.Patel also relies on the decision that in the case of Amalendu Pal @ Jhantu vs State Of West Bengal reported in 2010(1)SCC 707 and submitted that for establishing the offence punishable under section 306 of IPC, accused must have played the role to facilitate offence of suicide. 9. It is submitted that from the FSL report it comes on record that there was no poisonous substance found and because of depression, she has taken the overdose of the medicine, but not with an intention to commit suicide as there was no proximate link between the act of the accused and the act of committing suicide as she was staying with the parents prior to 10 days of the incident and in absence of this live link, the learned Trial Court has committed an error in convicting the respondent- accused for the offence punishable under section 306 of IPC. 10. Learned Advocate Mr.Patel has relied on the decision rendered by the Apex Court in the case of Mariano Anto Bruno vs Inspector Of Police, reported in 2022 SCC Online SC 1387 wherein it is held that: “to convict a person under section 306 of IPC, there has to be a clear mens rea to commit offence. It also requires an actual act and direct act which leads the deceased to commit suicide, finding no other option and Act must be such reflecting intent of the accused to push the deceased into such a position that she commits suicide.” 11. It also requires an actual act and direct act which leads the deceased to commit suicide, finding no other option and Act must be such reflecting intent of the accused to push the deceased into such a position that she commits suicide.” 11. Learned Advocate Mr.Patel submits that in the case on hand, though these eliminations are absent, learned Trial Court without considering the same has convicted the present appellant for the offence punishable under section 498A and 306 of IPC, therefore same is required to be interfered with and the accused is required to be acquitted from all the charges. 12. On the other hand Learned APP Ms.Monali Bhatt supports the judgment on the ground that though marriage of the appellant and the deceased was solemnized prior to 15 years, but as alleged in the FIR and proved through the evidence of the father, she was harassed and tortured on the ground of dowry. 12.1. Learned APP Ms.Monali Bhatt has submitted that, this allegation is further corroborated with the application given by the complainant prior to the incident which was produced below Ex.33, wherein also it comes on record that due to non-fulfilling the demand made by the present appellant, she was sent to the house of her parents and thereafter she was beaten in the presence of the parents and brother of the deceased. Learned APP Ms.Monali Bhatt submits that, from the evidence of the brother who was examined below Ex.21 and from the deposition of the aforesaid witness, demand of dowry as well as the allegation of beatings to the deceased was corroborated. 12.2. Learned APP Ms.Monali Bhatt further relies on the evidence of the independent witness namely Nigamkumar Rajendrabhai Thakkar, who was examined below Ex.22, from the evidence of this witness it comes on record that the witness was serving as clerk in the office of the complainant and in his presence there was a hot altercation between the complainant and the accused–appellant for non-fulfilling of the demand of Rs.3,00,000/-. 12.3. Learned APP Monali Bhatt further relies on the evidence of the neighbor namely Ramilaben who was examined below Ex. 28, who also described the mental condition of the deceased because of the harassment caused to her at the hands of the husband. 12.4. 12.3. Learned APP Monali Bhatt further relies on the evidence of the neighbor namely Ramilaben who was examined below Ex. 28, who also described the mental condition of the deceased because of the harassment caused to her at the hands of the husband. 12.4. Learned APP Ms.Monali Bhatt also relies on the evidence of PW8 Sendhabhai, who was examined below Ex.32 was the ASI at Mehsana Taluka Police Station and investigated the application of the complainant dated 04- 05-2009 which was produced below Ex.33, wherein also it comes on record that demand of Rs.3,00,000/- was made by the appellant and on non-fulfilling the demand, deceased was thrown out from the house. Prior to the said application on 03-05-2009, the appellant came to the house of the complainant and assaulted the deceased in presence of the parents and the neighbors and on intervention by the brother namely Apurva, the appellant had tried to strangle the neck of the brother. 12.5. Learned APP Ms.Monali Bhatt has also relied on Ex.36 wherein the report was submitted by the ASI that to save the marriage life of the deceased, the application below Ex.33 was not proceeded further. Learned APP Ms.Monali Bhatt submits that though the appellant was aware about the mental condition of the deceased, he still continued with his behavior, therefore from this, it comes on record that due to willful conduct on the part of the appellant, the deceased had committed suicide. 12.6. Learned APP Ms.Monali Bhatt further submits that, prosecution has established the case of the suicide, as the death of the deceased was unnatural death and by consuming overdose of the medicines prescribed the deceased had committed suicide and therefore Learned APP prays to not interfere with the impugned judgment and order of conviction and prays to dismiss the appeal. 13. 14. Having regard to the submission made by the learned Advocates for the respective parties and having thoroughly gone through the oral as well as documentary evidence on record, in the opinion of this Court two broad questions arise for determination before this Court: i. Whether the judgment and order passed by the learned Trial Court convicting the appellant-accused for the offence punishable under section 498 A is just and proper? ii. ii. Whether the prosecution established the necessary ingredients of section 306 of IPC and the judgment and order of the conviction was rightly passed by the learned Trial Court for the said sections? 15. To satisfy the ingredients of the aforesaid sections, necessary requirements under section 498 A is that: (a) that the victim was a married lady(she may also be a widow), (b) that she has been subjected to cruelty by her husband or the relative of her husband, (c) that such cruelty consisted of either (1)harassment of the woman with a view to coerce meeting a demand of dowry, or (2) a wilful conduct by the husband or relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health; (d) that such injury aforesaid may be physical or mental. When the husband or the relative of a husband of a woman subjects such woman to cruelty, he or they shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 16. To prove the ingredients of section 498 A, prosecution has examined PW2 i.e. father of the deceased namely Arvindkumar Chandulal Jani below Ex.17. From the evidence of the father, it comes on record that marriage of the deceased Binalben was solemnized in the year 1995 with the appellant and they were blessed with one son namely Malav, who is aged about 12 years and a daughter namely Purva, who is aged about 7 months. Her marriage life was smooth initially, thereafter the harassment and torture started at the hand of the accused named in the FIR. However, with a view to save the marriage life, she was made to understand and was sent to the matrimonial house again and again. On 30- 04-2009, the appellant came into the office and at that time son Apurva and clerk Nigam were present and the demand of Rs.3,00,000/- was made to pay the loan of car as well as house by the appellant, as the complainant was having arrangements of Rs.1,00,000/-, hence willingness was shown to lend an amount of Rs.1,00,000/- which was denied to be accepted by the appellant and thereafter the deceased was sent to the house by the appellant. As she was tortured and harassed, therefore application was given on 04-05-2009 to the DSP, and the interventions were made by friends of the appellant namely Biren Thakkar and Harshal and the deceased was sent to the matrimonial house. Again on 31-07-2009, the deceased was dropped by the appellant and on inquiring, deceased had disclosed that mother-in-law Ramaben, father-in-law Dileepbhai, brother-in-law and sister-in-law who came from Dubai were torturing her on the ground of non-fulfilling the financial assistance by the father. 17. On 09-08-2009, deceased had called for the medicines from the brother Apurva which were prescribed by the Doctor, who treated her at Palanpur and after taking the pills, she slept along with the mother of the complainant in the drawing room and other family members were sleeping in the bedroom. On 10-08-2009, deceased did not wake up, therefore she was taken to the Lions Hospital, Mehsana where she was declared dead. On being informed to the police, Police Officer came and Panchnama was carried out and thereafter body was taken for postmortem at Civil hospital, Mehsana. The prescription which was given by Dr.Agarwal at Palanpur was also given to the police officer. Total 20 medicines were called for, out of which from one strip 04 and other strip 6 were remaining which were handed over to the police officer. From the cross examination of this witness certain admissions were made by the complainant with regard to the improvement of the statement regarding the presence of brother Apurva and clerk Nigam at the time of making demand of the money by the appellant on 30-04-2009 in the office. 18. It is admitted by the father that, on 31-07-2009, appellant dropped deceased at the house of the parents. However, he denied with regard to the knowledge of prescription given by the Doctor or the treatment which was taken by the deceased with regard to the heart ailment and mental illness. Complainant had admitted that son of the deceased is staying with the appellant and he is bearing the expense of education of both the children. It is admitted that, except the ill treatment on the ground of non providing the financial assistance, there was no other ground for harassment to the deceased. It is admitted that, the complainant do not recollect any other incident, except the incident dated 30-04-2009 with regard to the demand of money. It is admitted that, except the ill treatment on the ground of non providing the financial assistance, there was no other ground for harassment to the deceased. It is admitted that, the complainant do not recollect any other incident, except the incident dated 30-04-2009 with regard to the demand of money. It is admitted by the complainant that son-in-law was working as medical representative and the mother-in-law retired as a teacher in the year 2007, the father-in-law was working at Mumbai in Micro Packaging Machinery. With regard to the trip which was done by the deceased and her husband at Goa in the year 2001, the complainant had stated that he did not recollect the same. Further, question regarding the trip to Nepal was made by the daughter and the son-in-law in the year 2003 and 2004, he said that he did not have any knowledge regarding the same. In the year 2007 and 2008 daughter and son- in-law went to Rameshwar that also he said that he did not have any knowledge about. There is one flat at Mumbai where the appellant and the daughter were staying. 18.1. With regard to the help which was provided by the appellant at the time the complainant and his wife had received the cardiac respiratory attack and both were taken to V.S. Hospital as well as Sterling Hospital and lastly in Lions Hospital in Mehsana by the appellant. At that time the financial assistance was provided by the appellant to the complainant, it is admitted by the complainant that on 16-01-2006 an amount of Rs.80,000/-, on 28-01-2006 an amount of Rs.35,000/-, on 14-02-2006 an amount of Rs.1,00,000/-, on 18-12-2007 an amount of Rs.30,000/-, on 29-10-2007 an amount of Rs.50,000/- was given through cheque by the appellant to the complainant and the complainant has returned the same to the appellant. It is admitted that up to 2007 there were various financial transactions between the complainant and the appellant and they were having cordial relations. It is admitted that, on being called by the complainant to the appellant, he immediately reached the Lions hospital at Mehsana. 19. The next witness who was examined by the prosecution is brother of the deceased namely Apurva below Exh.21. From the evidence of this witness it comes on record that the deceased was staying at Motera Road, Mehsana in Pink City Bungalow along-with the accused persons. 19. The next witness who was examined by the prosecution is brother of the deceased namely Apurva below Exh.21. From the evidence of this witness it comes on record that the deceased was staying at Motera Road, Mehsana in Pink City Bungalow along-with the accused persons. The deceased had disclosed with regard to harassment meted out at the hand of the in-laws and the appellant. In his presence the demand of Rs.3,00,000/- was made by the appellant in the office of the father. The father had shown readiness to lend the amount of Rs.1,00,000/- which was not accepted by the appellant and he left the office. On number of occasions the demands were made and on non-fulfilling of the demand, she was beaten by the appellant. Prior to two months of the incident, the deceased was beaten by her mother-in-law by dashing her head on the wall. She came back to the house, at that time the mother-in-law had called the appellant and in his presence the appellant had slapped the deceased and used abusive language, on intervention by this witness, his neck was strangled by the appellant. 19.1. On 09-08-2009 deceased slept with the grand-mother on the first floor and in the morning she did not wake up and therefore she was taken to Lions Hospital where she was declared dead. The pills which were consumed was brought by this witness on demand of the deceased. In the cross examination certain improvements came on record like, the witness brought the pills on the demand of the deceased and that remaining pills were found from the purse of the deceased. 20. It is admitted by the witness that the treatment of the deceased was undergoing with regard to her mental illness and prescription which is given below Exh.18 was prescribed by the Doctor. The demand of the money was made by the appellant prior to three months from the date of the incident. During the marriage span of 14 years, the deceased was staying with the accused at his matrimonial house. He used to visit the house of the deceased as well as the deceased also used to go frequently to the parent’s house. 21. The prosecution further examined other witness namely Nigamkumar below Exh.22 who was serving as clerk in the office of the complainant and in his presence the demand of Rs.3,00,000/- was made by the appellant. 22. He used to visit the house of the deceased as well as the deceased also used to go frequently to the parent’s house. 21. The prosecution further examined other witness namely Nigamkumar below Exh.22 who was serving as clerk in the office of the complainant and in his presence the demand of Rs.3,00,000/- was made by the appellant. 22. The next witness namely Ramilaben who was neighbor and was residing at the house adjoining the complainant’s house was examined below Exh.28. She stated in her chief examination that, there were very friendly relations between this witness and the deceased and deceased used to disclose with regard to the harassment meted out by the appellant-accused and as it went beyond her tolerance level, it was disclosed that the thoughts of suicide are coming, but considering the age of her two children she diverted her mind. The glaring discrepancies which came from the evidence of this witness is that, she testified in her evidence that deceased committed suicide during the evening around 7:30 p.m. and deceased was taken to the hospital in the evening at around 8:00 p.m. and as per the instructions given by the complainant she had given her evidence in the trial. This witness appears to be a tutored witness as it was admitted in her examination that as per the guidance of the complainant the deposition is made to establish the charge of section 498 A of IPC. 23. The prosecution has examined Mr.Sendhabhai below Exh.32 who is serving as an ASI at Mehsana Taluka, Police Station. Through the evidence of this witness, the application which was given by the father prior to the death of the deceased below Ex.33 on 04-05-2009 was produced in the application it is stated by the father that the daughter is suffering from heart disease. It is stated by the father that the appellant came to the office of the complainant and demanded the amount of Rs.3,00,000/-, but as there was an arrangement of Rs.1,00,000/- with the complainant, he offered the same which was not accepted and agonizing from the same, the appellant had left the office. Thereafter the deceased was thrown out from the house. After 4 days when the appellant visited the house of complainant, he had tried to convey the matter to bring the deceased at his matrimonial house which was denied by the appellant. Thereafter the deceased was thrown out from the house. After 4 days when the appellant visited the house of complainant, he had tried to convey the matter to bring the deceased at his matrimonial house which was denied by the appellant. On 03-05-2009 when the mother-in-law had called the complainant, it was conveyed by the complainant that it is not proper that the harassment and torture was done on the ground of money, mother-in-law had informed the same to the appellant and appellant again came to the house of the complainant and had beaten the deceased and on being intervened by the brother, he was also beaten and it was informed that if any complaint would be filed, he would kill everyone. This application was disposed of on the communication addressed by the complainant dated 02- 07-2010 whereby it is stated that as the daughter has to stay with the appellant and with a view to arrive at an amicable settlement, the application was given and it was requested that no further proceedings are initiated on the application and the application be kept pending. Thereafter ASI had submitted his report to the Police Inspector Mehsana Taluka Police Station on 02-07-2010 stating that complainant does not want to proceed further and therefore the application be disposed of. 24. The FIR which was lodged was exhibited below Ex. 39 from where it comes on record that the complainant has disclosed that treatment of mental ailment was going on with Dr.Radheshyam Bansilal Agarwal and the present appellant had bear the cost of the treatment. From the said evidence placed by the prosecution to show that the deceased was harassed by the present appellant with a view to coercing her to meet unlawful demand of money and on the ground of failure by her and the parents to meet such demand, cruelty was meted out. From the evidence more particularly Exh.33 which was the complaint filed by the complainant against the present appellant prior to the incident i.e. on 04-05-2009 wherein the allegation with regard to the non-fulfilling of the demand, physical assault was made by the appellant, shows the willful conduct of the appellant. Appellant was dropped at the house on 31-07-2009 keeping the kids with the mother-in-law also suggests the deliberate behavior on the part of the accused which amounts to cruelty. Appellant was dropped at the house on 31-07-2009 keeping the kids with the mother-in-law also suggests the deliberate behavior on the part of the accused which amounts to cruelty. It also comes on the record from the evidence of the brother namely Apurva that appellant was in habit of beating the deceased not only one incident, but there were series of incidents which has been stated by the witness. It is true that from the evidence of the complainant it establishes that upto year 2007-2008 there were cordial relations between the complainant and the appellant and there were some financial transactions taken place during this year. Complainant has also admitted that, at the time when he received cardiac arrest, the appellant had taken him to various hospitals and provided the medical treatment, but this Court cannot shut the eye with regard to the other evidences which also suggest that after 2008 there was a demand of the money from the appellant and on non- fulfilling the demand, she was beaten and sent to the house of the parents keeping the children with him. From the overall evidence it comes on record that the deceased was repeatedly maltreated and mentally tortured on the ground of non providing financial assistance by the father. Considering this, learned Trial Court has rightly convicted the accused for the offence punishable under section 498 A of IPC. 25. The second question arose for the consideration of this Court is whether conviction under section 306 of the IPC was rightly awarded by the learned Trial Court or not. To satisfy the ingredients of the aforesaid sections, necessary requirements under section 306 is that: Section 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. Section 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. 26. 26. So far as to prove the charge of 306 essential ingredients would be : (i) That any person committed suicide; (ii) That such commission of suicide by the consequence of an abetment (iii) That the abetment was made by the accused. To prove the abetment necessary ingredients of sections 306 & 107 of IPC is to be settled with. 27. The prosecution has examined the Medical Officer namely Dr.Prakash Patwa below Exh.11 who has performed the autopsy of the body of the deceased. From the evidence of this witness it comes on record that on 10-08-2019 the postmortem was carried out between the period of 2:40 to 3:40, there was no external injury which was found during the postmortem. From the histopathology report which was received on 15-09-2009 as well as the FSL report, the conclusion that arrived with regard to the cause of death wherein it is mentioned that due to cardio respiratory failure due to pulmonary edema, the death was caused. He has further stated that circumstantial evidence has to be considered. 27.1. It is opined by this Doctor in the evidence that if one would take excessive of depron and theodep tablets, the person would go into coma and would have the effect on the respiratory organ and would die if no treatment would be given on time. In the cross examination, this doctor admits that due to pulmonary edema heart fail occurred. This was done because of the overdose of the medicine namely theodep and depron. These tablets normally are given to the patients who are suffering from mental depression. 28. From the evidence of the brother and the father it comes on record that deceased had taken overdose of these medicines and after sleeping she did not wake up in the morning. The defence had examined the witness namely Dr.Radheshyam Bansilal Agarwal below Exh.54 who had treated the deceased and prescribed the tablets which was produced below Exh.18. This witness has deposed in his evidence that patients who are suffering from mental depression would have negative thoughts, would not have any interest in the family and routine work and would cry, and this depression would be the cause of deficiency in the personality and the patients, who are suffering would loose their interest in the life. This witness has deposed in his evidence that patients who are suffering from mental depression would have negative thoughts, would not have any interest in the family and routine work and would cry, and this depression would be the cause of deficiency in the personality and the patients, who are suffering would loose their interest in the life. Prescription which was given by this doctor of the tablet namely Etilaam, Depron and Theodep was advised to give in the morning, noon and evening i.e. etilaam and depron at night and theodep in the morning as well as night. The contents of imipremie would come in the theodep tablet and the overdose of this tablet would lead to heart failure and will affect the respiratory process. 29. One more aspect that, deceased was at the house of the parents since 31-07-2009 and there was no incident occurred between the period when she was sent to the house and she committed suicide. As she was suffering from mental depression and she consumed 04 tablets of depron and 06 tablets of theodep, though 10 tablets of each medicines were available with her. It suggests that she consumed the same by mistake, but not with an intention to commit suicide. If the intention of the deceased was to commit suicide then she could have consumed all the 10 tablets from each medicine as the same was available with her. Every act of self destruction is suicide, provided it be an intentional act of the party knowing the probable consequences of what he is doing. It transpires from the record that under the depression she has taken excessive dose of medicines and she died. 30. One more glaring aspect which is required to be considered is that before holding the accused guilty of offence under section 306 of IPC, the Court must scrupulously examine the facts and circumstances of the case and also access the evidence adduced before it in order to find out whether the cruelty and the harassment meted out to the victim had left victim with no other alternative, but to put an end to her life. 31. In the case on hand, the victim was left at the house of the parents on 31-07-2009. She was suffering from mental depression, she was undergoing treatment with Dr.Agarwal who was the defence witness No.1. 31. In the case on hand, the victim was left at the house of the parents on 31-07-2009. She was suffering from mental depression, she was undergoing treatment with Dr.Agarwal who was the defence witness No.1. The medicine which was prescribed by the Doctor was not taken regularly as per the advice of the Doctor, when she was examined lastly on 10-06-2009, thereafter, she was called for the further follow-up on 10-08-2009. She had committed suicide as per the case of the prosecution on 09-08-2009 by taking excessive dose of the pills which were prescribed by the Doctor. During this span, there were no incidents reported which lead and compel the deceased to commit suicide. In order to bring home a case within the purview of section 306 of IPC there must be a case of suicide and in commission of said offence the person who is said to have abetted the commission of suicide must have played an active role by the act of instigation or by doing certain act to facilitate the commission of suicide. Therefore the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under section 306 of the IPC. The word “Instigate” literally means to goad, urge forward, provoke, insight or encourage to do an act and a person is said to instigate other when he actively suggests or stimulates the matter to the act by any means or language, direct or indirect, whether it takes a form of expression solicitation or of hands, insinuation or encouragement. 32. Merely on allegation of harassment without there being a positive action proximate to the time of occurrence on the part of accused which leads or compels the person to commit suicide, charge under section 306 of the IPC cannot be held proved. It is true that the victim was harassed and tortured on the ground of non-fulfilling the demand of money, therefore in the opinion of this Court prosecution undoubtedly established a case beyond reasonable doubt with regard to the offence punishable under section 498 A, but not the offence under section 306 of IPC. 33. The basic difference that lies between the two sections i.e 498 A and 306 is that of “Intention”. 33. The basic difference that lies between the two sections i.e 498 A and 306 is that of “Intention”. Under section 498 A of IPC, cruelty committed by the husband or his relatives drag the woman to commit suicide vide under section 306 of IPC suicide is abetted and intended. Distinction between section 306 and 498 A of IPC is that of intention. Under the law, cruelty committed by husband or his relatives drag the woman concerned to commit suicide while under former provisions suicide is abetted and intended. The deceased had subjected to cruelty by her husband over the demand of money, therefore, learned Trial Court has rightly convicted the accused for the offence punishable under section 498 of IPC. However, considering the fact that, the marriage span is of 15 years, there were many trips which were organized by the husband alongwith wife-deceased. The treatment which was undertaken at the instance of the husband and she was taken to the Doctors as per the admission made by the father, upto year 2006 & 2007 there was cordial relation between the complainant and the accused and they were also having the financial transactions with each other, couple with a fact that she was sent to the parent’s house on 31-07-2009 and after 8 days i.e. on 09-08-2009 due to the excessive dose she died, suggests that there was no positive action by the accused which could be said to have led or compelled the deceased to commit suicide, therefore this Court is of the view that conviction which was ordered under section 306 of the IPC is required to be interfered with and the accused is required to be acquitted for the offence punishable under section 306 of IPC. 34. This Court has also considered the decision rendered by the Apex Court in the case of Mariano Anto Bruno and Another V/S Inspector of Police, reported in 2022 SCC Online SC 1387 there also the case of the prosecution is that deceased was suffering from mental depression and the treatment was going on before the Doctor. The symptoms which are stated in that case with regard to the mental depression are reproduced hereinbelow: “34.The fact stands corroborated by the summary of treatment report dated 04.11.14 by Dr.Shalini, Consultant Psychiatrist, PW-9 which is reproduced below:- “Dr.Amali victoria/32/F MBBS, MD(psy), Asst. Prof. The symptoms which are stated in that case with regard to the mental depression are reproduced hereinbelow: “34.The fact stands corroborated by the summary of treatment report dated 04.11.14 by Dr.Shalini, Consultant Psychiatrist, PW-9 which is reproduced below:- “Dr.Amali victoria/32/F MBBS, MD(psy), Asst. Prof. IMH W/o Mr.Mariano Bruno/36/M Mch (Neuro) Surgeon Mx 7 years A/NC/N/1 Son 7/M ● Couple present together ● Wife C/o sadness for past 1 month, after being posted in female ward @IMH ● Feels tired, not interested inworking ● Feels demoralized, incapacitated ● Poor Sleep ● She had felt well until 6 weeks, suddenly turned more and more desparate. ● No H/o hypothyroidism ● H/o similar depressive illness in the past(+) ● H/o episode during MBBS, had attempted suicide, had taken treatment with a psychiatrist at Thirunelvelli, admitted in ICU, TMC. ● 2nd episode post partum ● 3rd episode present ● C/o suicidal ideas past two days-hence husband has brought her for consultation today ● Client ’ s husband wants to go in for 2nd child, where as amali fears that she may not be able to cope up. Feels helpless, hopeless and worthless ● She wants to quit her job, but fears parents in law will leave her and go back to native place. She feels she will not be able to take care of her son or other future kids on her own. ● Husband says he had requested for a second opinion because he feels she is getting very quite and inactive at home. She had previously consulted her psychiatrist colleague at IMH also. But husband wants a second opinion as she has been talking of committing suicide for the past 2 days. ● Amali Counselled Advised free T3, TSH Rx Cap.Prodep (20) 1-0-0 Tab Eliwel (25) 0-0-1 x 10 days ● To come with TFT report for review after 10 days. ● To continue the therapy for sense of worthlessness. 34.1. The Apex Court comes to the conclusion that conviction held by the learned Court below is not justified, by observing as under :- “40. ● To continue the therapy for sense of worthlessness. 34.1. The Apex Court comes to the conclusion that conviction held by the learned Court below is not justified, by observing as under :- “40. A bare perusal of the impugned judgment indicates that the learned Court erred in recording the finding that there is sufficient evidence for convicting the appellants under section 306 of IPC losing sight of the fact that there exists no evidence on record indicating that the deceased was meted out with harassment by the appellants just before her death. It is well-settled that not only there has to be evidence of continuous harassment, but there should be cogent evidence to establish a positive action by the accused which should more or less be proximate to the time of occurrence, which action can said to have led or compelled the person to commit suicide. 41. In case at hand, not only the said positive action in close proximity to the time of suicide is absent but also there is no evidence for any continuous physical or mental torture meted out to the deceased by the appellants. On the contrary, appellant no. 1 himself took the deceased to consult a psychiatrist just a day prior to this incident obviously with the intention to make her feel better. The said act can by no stretch of imagination be said to be any such act which may lead the deceased to commit suicide. Further, the allegations made by PW-1 to PW-3 in their statement with respect to continuous harassment and torture of the deceased by the appellants just after the marriage is not worthy of being relied upon and has to be taken with a pinch of salt on account of fact that throughout their 9 years of marriage, there has never been any complaint or a whisper in this regard either by the deceased or her family members who appeared as prosecution witnesses. Even the deceased herself who was a qualified doctor never made any complaint in this regard. It is really hard to believe that a well-educated and self-reliant lady would take such things lying down for a substantially long period of 9 years. 42. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It is really hard to believe that a well-educated and self-reliant lady would take such things lying down for a substantially long period of 9 years. 42. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent. 43. Now, so far as conviction under Section 498A IPC is concerned, except the statement of the prosecution witnesses PW-1 to PW-3 recorded after the incident, there is no other evidence to establish the allegation of any demand of dowry or ill treatment meted out to the deceased during her marriage. The fact that there were cordial relations between the families of Appellant No. 1 and the deceased is not disputed. The deceased committed suicide on 05.11.2014 and the complaint against the appellants were filed on 24.11.2014 i.e., 3 weeks after the death of the deceased. 44. This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence 21 adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. 45. Prosecution in order to prove the guilt of accused/appellants produced the following witnesses: ? Mother of the deceased – PW-1 ? Sister of the deceased – PW-2 ? Brother of the deceased – PW-3 ? 45. Prosecution in order to prove the guilt of accused/appellants produced the following witnesses: ? Mother of the deceased – PW-1 ? Sister of the deceased – PW-2 ? Brother of the deceased – PW-3 ? Carpenter who broke open the bathroom door – PW-4 ? servant maid working in the house – PW-5 ? AC mechanic who accompanied the carpenter – PW-6 ? Colleague of the deceased – PW-7 ? Colleague of the deceased – PW-8 ? Doctor who gave the treatment to the deceased on 04.11.2014 – PW-9 ? Doctor who conducted autopsy on the dead body – PW-10 ? Doctor who declared the deceased as brought dead on 05.11.2014 – PW-11 ? Doctor who treated the deceased on abortion of the second child – PW-12 ? Auto driver – PW-13 ? Sub-Inspector of Police – PW-14 ? Inspector of Police who investigated the case – PW-15 48. It is well settled that the Courts ought to be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. Reference may be made to the judgment of a three-Judge Bench of this Court in Ramesh Kumar Vs. State of Chhattisgarh , wherein this Court set-aside the conviction of the accused for the ofience under Section 306 IPC as ingredients of Section 306 IPC were not satisfactorily proved. It was observed as under :- “20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that efiect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 21. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 21. In State of West Bengal v. Orilal Jaiswal and Anr., this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. 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 of abetting the offence of suicide should be found guilty.” 35. Having regard to the evidence, it is difficult to hold that prosecution has proved the case beyond reasonable doubt with regard to the offence punishable under section 306 of IPC and therefore judgment and order of the conviction passed under section 306 of the IPC is required to be quashed and set aside and accused is required to be acquitted for the said offence. 36. As discussed earlier, from the evidence it transpires that prosecution has established his case beyond reasonable doubt with regard to the offence punishable under section 498 A of the IPC, however the sentence which was imposed for the offence punishable under section 498A of the IPC is concerned and same is required to be altered in view of the fact that offence is of the year 2009 and accused is having responsibility of two children and as per the remarks of the jail report, the accused has undergone the period of three months and 18 days. 37. Resultantly this appeal is partly allowed. The judgment and order of conviction passed by Learned Additional Sessions Court, Mehsana in sessions case No.132 of 2009 dated 09-05-2011 under section 498 A of the IPC is confirmed and the sentence is altered into the undergone sentence and the judgment and order of the conviction for the offence punishable under section 306 is hereby quashed and set aside. ORDER IN CRIMINAL MISC. ORDER IN CRIMINAL MISC. APPLICATION NO. 1 OF 2023 In view of the judgment passed in Criminal Appeal No. 622 of 2011, this application stands disposed of.