Gujarat High Court
Pravinbhai vs State on 29 March, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.A/600/2000 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 600 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRAVINBHAI
CHOTABHAI CHAUHAN - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
HM PARIKH for Appellant(s) : 1,
MR. R.C.KODEKAR, ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 29/03/2010
ORAL
JUDGMENT
The present Appeal is directed against the judgment and order 14.06.2000 passed by the learned Additional Sessions Judge, Camp at Anand in Sessions Case No. 206 of 1994 recording conviction of the Accused No.1 - Pravinbhai Chhotalal Chauhan - the Appellant herein for the offences under Sections 498A as well as 306 of the Indian Penal Code, imposing RI for 5 years and fine of Rs.1000/- and in default of payment of fine, further SI for 3 months.
The facts of the case briefly summarised are that the charge came to be framed on the the basis of the complaint lodged by the complainant - father for the suicide committed by the deceased at the matrimonial house on 18.4.1993 alleging that she was harassed and thereby she was driven to commit suicide and the offence under Sections 498A read with Section 114 as well as 306 of IPC was committed.
On the basis of the complaint, the investigation was made and ultimately the charge sheet came to be filed for the alleged offences before the Court of leaned Judicial Magistrate First Class at Dakor. However, it was triable by the Court of Sessions, it was committed to the Court of Sessions. The Sessions Court framed the charge as stated above for the offence under Sections 498A read with Section 114 as well as 304(B), 306 read with Section 498A and 114 and the plea of accused was recorded where he denied of having committed any offence and was therefore tried for the same.
After the recording of the evidence was over, the statement of the Accused No.1 - the Appellant herein was recorded under Section 313 and after hearing the learned Advocate for the defence as well as learned Public Prosecutor, the learned Sessions Judge recorded conviction and imposed the sentence as stated hereinabove.
It is against this judgment, the present Appeal has been preferred by the Appellant - original Accused No.1 on the grounds stated in the memo of Appeal contending inter alia that the learned Magistrate has observed that the allegation about preparation of food is of general nature, and therefore, it cannot be said to have been a cruelty. Similarly, the demand of dowry for purchase of scooter has also not been accepted or believed, and therefore, the learned Judge could not have recorded conviction for offence under Section 498A of IPC. It is also contended that the statement of independent witnesses / neighbours have not been recorded, particularly the sister, who was residing nearby, is also not examined.
Learned advocate Mr. H.M.Parikh for the appellant referred to the testimony of PW-4 - the complainant father at exh.25 and PW-5 - the mother at exh.26. Referring to the testimony of PW-7 - I.O. - Raghuvir Singh at exh.31, it was submitted that there are improvisation in the statement, and the testimony of the witnesses, which have been stated in the testimony of PW-7 - I.O. - Raghuvir Singh at exh.31. Learned advocate Mr. Parikh has also stated that the sister of the deceased was also residing nearby, but her statement has not been recorded nor she has been examined. Learned advocate Mr. Parikh submitted that the learned Sessions Court has committed an error inasmuch as, on one hand in paragraph 16, it has been observed that a demand of Rs.10,000/- for purchase of scooter is not believed or accepted and on the other hand the learned Judge has observed and accepted the charges for the offence under Section 498A regarding cruelty.
Learned advocate Mr. Parikh referred to Section 306 of IPC and submitted that abetment of suicide would not be attracted, as necessary ingredients cannot be said to have been fulfilled. He therefore submitted that there has to be intention of the accused to instigate or abet the deceased to commit suicide and there is no such material or evidence, and therefore, Section 306 would not be attracted. He therefore strenuously submitted that the learned Sessions Judge has committed an error while recording conviction under Section 306 though in the judgment itself it has been specifically observed in paragraph 16 that the prosecution has failed to establish the charges for the demand of Rs.10,000/- for purchase of scooter. Similarly, there is also observation that abuses of mother-in-law with regard to preparing food are routine, and therefore, once having accepted that the prosecution has not been able to establish the offence under Section 306 IPC, the dowry death could not have been recorded for the alleged offence under Section 306 and also 498A read with Section 114 IPC, only on the ground that the appellant accused was habituated to consume liquor and was coming to the house late. He therefore submitted that if the offence under Section 306 IPC is not established in light of the observations made and the findings recorded by the Sessions Court, the impugned judgment and order recording conviction for offence under Section 498A is also erroneous, and therefore, the present appeal may be allowed.
Learned advocate Mr. Parikh strenuously submitted that though the charges for offence under Section 498A read with Section 114 are believed / accepted and the evidence for the offence under Section 306 is not believed or accepted, then it could not have been believed or accepted for the offence under Section 498A also. He submitted that when the trial court has not believed the case of prosecution for the alleged offences under Section 306 clearly observing that it was not a dowry death and has again accepted the charges for the offence under Section 498A regarding cruelty on the ground that the appellant accused was in the habit of consuming liquor and was coming late at night to the house. Learned advocate Mr. Parikh submitted that whether this can be said to be a cruelty within the meaning of Section 498A. He strenuously submitted that the habit of consuming liquor may not be good or may not be liked by the wife, but whether it can be said to be a cruelty as provided under Section 498A. He emphasized and submitted that such a conduct by itself would not constitute a cruelty as provided under Section 498A. In support of this submission, he referred to and relied upon the judgment of this court in case of Indrasing M. Raol v. State of Gujarat, 1999 (2) GLH 596 - head-note 'B' and emphasizing on the observations, submitted that the prosecution has to establish that the cruelty or the harassment was persistent and was grave in nature, unbearable and it was with an intention to drive the woman to commit suicide. He submitted that as there is no such evidence or material brought on record, the learned Judge has committed an error in recording conviction under Section 498A also.
Learned advocate Mr. Parikh also referred to Section 498A and submitted that for the offence under Section 498A, cruelty has to be established which has been explained in the explanation and emphasizing on this provision, he submitted that every harassment or discord in the matrimonial life by itself would not be sufficient to attract Section 498A. He submitted that the habit of consumption of liquor or returning late to the house by itself is not a cruelty as envisaged under Section 498A. He submitted that the harassment should be of such a grave nature that it drives the woman to commit suicide. He therefore submitted that this would not be sufficient to establish the charges for the offence under Section 498A.
Therefore learned Advocate Mr. Parikh submitted that as there is no other material or evidence either for abetment under Section 306 and also for the cruelty and the harassment as provided under Section 498A, the judgment and order recording conviction of the appellant - Accused No.1 is erroneous and may be set aside.
Learned advocate Mr. Parikh submitted that it is required to be mentioned that the sister of the deceased was residing nearby, but her statement has not been recorded and she has not been examined as a witness. He further submitted that the husband is also said to have received injuries, is required to be considered. Learned advocate Mr. Parikh referred to and relied upon the judgment of the Hon'ble Apex Court reported in case of Bhagwan Das v. Kartar Singh and Ors., 2007 Cr.L.J. 3420 and emphasized the observations made in paragraphs 15 and 16. He emphasized the observations made in paragraph 15:
"15. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with 107 of IPC."
Therefore learned advocate Mr. Parikh at the cost of repetition again emphasized that if there is no material or evidence with regard to the alleged offence under Section 306 and also for the offence under Section 498A regarding cruelty, the impugned judgment and order recording conviction is erroneous and requires to be quashed and set aside.
Learned APP Mr. R.C.Kodekar submitted that a few facts are required to be mentioned and borne in mind. He submitted that the incident has occurred at the house of accused on 18.4.1993 at 2:30 AM (night). The PSO was informed about the incident and it was recorded an accidental death by Entry No. 13/1993. Inquest panchnama was made and the panchnama of the scene of offence was also made. He submitted that admittedly there are 100% burn injuries as per the Post Mortem report. Learned APP Mr. R.C.Kodekar submitted that the contention with regard to the accidental death while preparing tea, cannot be believed and it has rightly not been believed by the Sessions Court inasmuch as, at 2:30 AM (night), as to what was the reason for preparing tea, is not explained. He submitted that if the incriminating circumstances are not explained by the accused, then inference can be drawn under Section 114 of IPC. For that he referred to and relied upon the judgment of the Hon'ble Apex Court reported in case of Swamy Shraddananda Alias Murali Manohar Mishra v. State of Karnataka, (2007) 12 SCC 288, and referring to head-note 'C'
- paragraph 34, he emphasized that in the present case also it was for the accused no.1 -
husband to explain as to how the incident occurred at 2:30 AM (night) while preparing tea. He submitted that normally at 2:30 AM (night) tea would not be prepared and he also referred to the PM report and submitted that in the accidental injuries, such extensive burn injuries of 100% could not be received.
Learned APP Mr. R.C.Kodekar also submitted that the charge is framed for the offences under Sections 306 as well as under Section 498A read with Section 114 of ICP. He referred to the testimony of PW-4 father and PW-5 mother and submitted that both have corroborated the complaint and have specifically stated about the past incident and have also stated that with a view to save the marriage, the deceased was sent to the matrimonial house. They have also stated about demand of dowry in the past and the harassment caused to the deceased. Learned APP Mr. R.C.Kodekar therefore submitted that in light of the evidence of the parents coupled with the fact that the possibility of the accident is ruled out, it is obvious that she had committed suicide due to such ill-treatment. He also referred to Section 498A and submitted that the demand for dowry is one aspect, but the law provides that, any such conduct which is likely to drive the woman to commit suicide, would be covered by Section 498A. He therefore submitted that the learned Sessions Judge though has made the observation that the demand for dowry is not established, the aspect of harassment is believed or accepted, therefore learned APP Mr. R.C.Kodekar submitted that the demand for dowry is one aspect but the cruelty has been believed or accepted by the learned Sessions Judge. The habit of consumption of liquor, returning late to the house and the past quarrel, are sufficient to draw the inference as required. He emphasized and submitted that the marriage span was of 14 months, and therefore, Section 498A read with Section 113 would be attracted to raise the presumption, and therefore, the judgment and order recording conviction of the appellant accused cannot be said to be erroneous and it may be confirmed.
In rejoinder, learned advocate Mr. H.M.Parikh for the appellant accused submitted that, in any case, the offence under Section 306 would not be established, as there is no intention, and the necessary ingredients cannot be said to have been established as material and evidence. He therefore submitted that if the offence under Section 498A is said to have been established, then the sentence provided is 3 years. He therefore submitted that in any case, the judgment and order requires to be accordingly modified. He finally requested that the accused has settled in life again, and therefore, this aspect may also be considered even if the charges for offence under Section 498A are upheld and maintained.
In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference.
Before referring to the discussion and the appreciation of evidence, a few facts are required to be appreciated. The incident is said to have occurred on 18.4.1993 at the matrimonial house at 2:30 AM (night). The initial contention was with regard to accidental death for which Entry No. 13/93 was made, and thereafter, on the basis of the complaint given by the complainant father, the complaint being FIR exh. 36 was registered. It is also required to be mentioned that though the theory of accidental death was initially pursued, the same has not been believed, as it is not probable that the accident would occur while preparing tea at 2:30 AM (night), particularly when there is no explanation as to what was the occasion or need for preparing tea at night. Further, the testimony of PW-7 Raghuvir Singh, who had initially registered the Entry No.13/93 for accidental death, made the inquest panchnama and the panchnama of scene of offence, has clearly stated in his testimony that the stove was there but there was no evidence that the stove had brusted. Moreover, the medical opinion also suggest that, in case of accident, there could not be such extensive burn injuries to the extent of 100%. Therefore the aspect of accidental injuries is ruled out and the deceased is said to have committed suicide.
Therefore, once it is accepted that the deceased has committed suicide, the ingredients for the alleged offence under Section 306 and / or 498, are required to be considered in light of the evidence, which has been appreciated by the Sessions Court. The submissions made by learned advocate Mr. H.M.Parikh, referring to Section 306 is that the alleged offence under Section 306 would not be attracted unless the necessary ingredients for the offence under Section 306 like aid or the instigation or abetment to commit suicide are fulfilled. In other words, there has to be such conduct or harassment which would compel to commit suicide and it has a reference to the abetment or the intentional abetment for commission of suicide by other person. In the facts of the present case, as rightly emphasized, the material and evidence on record has been found short of fulfillment of the criteria for the alleged offence under Section 306. As much emphasis has been given by learned advocate Mr. H.M.Parikh that on the one hand the learned Sessions Judge has observed with regard to the dowry death that, it is not believable or acceptable and at the same time has believed or accepted the cruelty or the harassment, meaning thereby the allegations with regard to demand for dowry are not believed or accepted. Therefore, the part of the evidence with regard to the alleged demand for dowry is not established or accepted. The other conduct of the accused regarding consumption of liquor and late returning to the house and quarrel, which is referred to in the testimony of the complainant father and the mother, and that there was some quarrel and only with a view to save marriage of the daughter, they had sent her to matrimonial house, cannot be overlooked. It is specifically stated in the testimony of both PW-5 father and PW-6 mother on this aspect and the the complainant father has corroborated the complaint at exh.36. The said complaint at exh.36 clearly refers to the fact that she had earlier visited only a week back when the deceased is said to have stated about such demand and the harassment, and they had sent her to the matrimonial house. At the same time, it is also admitted in the testimony of this witness, particularly the complainant father that in his presence there was no talk about demand of Rs.10,000/- for purchase of scooter, and therefore, it has not been believed by the Sessions Court. Therefore, as observed by the Hon'ble Apex Court in case of Bhagwan Das v. Kartar Singh and Ors. (supra) referring to Section 306, it is required to be appreciated that there has to be direct nexus between the act of suicide and the abetment or instigation. There is no such evidence with regard to such proximity of explanation keeping in mind the observations made by the Hon'ble Apex Court in a judgment in case of Bhagwan Das v. Kartar Singh and Ors. (supra) referred to and relied upon by learned Advocate Mr. H.M.Parikh. In the said judgment, the Hon'ble Apex Court has referred to Section 306 and 107 of IPC and observed referring to the earlier judgment reported in case of Randhir Singh & Anr. v. State of Punjab, 2004 (13) SCC 129 that;
..
more active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
Further, it has been observed;
The courts 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. ..............
Moreover a useful reference can be made to the judgment of the Hon'ble Apex Court in case of Sohan Raj Sharma v. State of Haryana, reported in AIR 2008 SC 2108, wherein it has been observed:
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the dong of that thing. More active role which can be described as instigating or aiding doing of a thing it required before a person can be said to be abetting the commission of offences under Section 306 of IPC."
Therefore, necessary ingredients for the offence under Section 306 are required to be established.
A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Amalendu Pal alias Jhantu v. State of West Bengal, AIR 2010 SC 512, where the Hon'ble Apex Court has also considered the provisions of Section 306 with regard to abetment of suicide and the necessary ingredients which are required to be established before the said office could be attracted. The Hon'ble Apex Court has again considered with reference to Section 107 of IPC and analyzing the provisions, it has been specifically observed:
15. .................., the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the 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.
16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an 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, IPC.
Therefore, the offence under Section 306 may not be attracted and more particularly as per the observations in paragraph 16, the learned Judge could not have recorded for offence under Section 306.
However, the another facet of the argument with regard to the offence under Section 498A and cruelty are required to be considered. As discussed above, the evidence of the complainant - father and the mother, as well as the conduct of the accused and the past quarrel will have to be considered for the purpose of offence under Section 498A. Section 498A referred to the aspect of cruelty, and the explanation added by subsequent amendment has clearly explained the word cruelty and the explanation 'A' suggest any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
Therefore, while considering this, one has to bear in mind the object of Section 498A, and while appreciating the evidence, this aspect has to be considered. It is required to be appreciated that the habit of drinking of liquor may also cause anguish. The submission made by learned advocate Mr. H.M.Parikh that the habit of liquor may not be liked, but itself would not constitute a cruelty under Section 498A, cannot be accepted. Therefore, even if the charges for the offence under Section 306 are not believed, there is sufficient material and evidence, which has been discussed and dealt with by the Sessions Court with regard to the offence under Section 498A.
Therefore, in view of the evidence and material on record as discussed above, the presumption as required under Section 113A of the Evidence Act would be attracted as there was no reason for deceased to commit suicide within 14 months of the marriage life. During this 14 months also there has been allegations regarding the ill-treatment which has been made out by the testimony of the witnesses, and therefore, this Court is of the opinion that the conviction for the offence under Section 498A read with Section 113A is required to be upheld and maintained.
Therefore, in light of the discussions made hereinabove, the present appeal stands allowed partly. The impugned judgment and order recording conviction of the appellant accused for the alleged offence under Section 306 IPC is hereby set aside. However, the conviction under Section 498A is maintained. As the sentence provided for the offence under Section 498A is 3 years, the judgment and order imposing sentence of 5 years RI shall accordingly stand modified to 3 years RI and fine of Rs.1000/- and in default SI for 3 months. Accordingly the present appeal stands allowed partly.
At the request made by Mr. H.M.Parikh for the appellant, the appellant accused shall surrender during the period of 6 weeks.
(Rajesh H. Shukla,J) Jayanti* Top