Gujarat High Court
Ramgopal Shriram Sharma vs State Of Gujarat on 13 September, 1995
Equivalent citations: (1996)2GLR118
JUDGMENT D.G. Karia, J.
1. In the unfortunate event between the night of January 16 and 17, 1988, Anita, wife of the appellant-accused committed suicide. The appellant was, therefore, charged with the offence under Sections 498A and 306 of the Indian Penal Code.
2. The learned Additional City Sessions Judge, Court No. 19, Ahmedabad, by his judgment and order dated September 1, 1993 convicted the appellant for the said offences and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for one month, for the offence punishable under Section 306 of the Indian Penal Code. No separate sentence for the offence punishable under Section 498A of the Indian Penal Code was imposed on the appellant-accused. The present appeal is preferred against the said judgment of conviction rendered in Sessions Case No. 105 of 1990 on the file of the City Sessions Court, Ahmedabad.
3. The appellant and the deceased Anita were married in the month of November, 1986. Three months prior to the date of incident, Anita had gone to reside with the appellant. It is the prosecution case that the accused was in the habit of consuming alcohol every day and used to harass and cause cruelty to the deceased Anita. It is also alleged that the appellant pressurised the deceased to have illicit relations with his friends. By this torture and trauma that were undergone by deceased Anita, a great deal of cruelty was being caused to her by the appellant. Deceased Anita had come to her parents' house on account of the occasion of "Makar Shankranti" as her mother wanted to give some articles to her. Parents of the deceased Anita and other family members were of the view that Anita should go and stay with her husband to which Anita was reluctant. She wanted to stay more for a couple of days in her parents' house. In the night between 16th and 17th of January, 1988, when everybody had gone to sleep, Anita went in the bath-room, poured kerosene on her person and set herself ablaze. She suffered very unbearable pain and as such raised shouts and screams, on hearing of which P.W. 2, Kalyansahay Jagannath, father of deceased Anita, and her brothers, P.W. 3, Rajendrakumar Kalyansahay, and P.W. 4, Babulal Kalyansahay, got awakened and tried to save burning Anita in bath-room. Door of the bath-room was closed from inside. The door of the bath-room was made open by pushing it. P.W. 2, Kalyansahay extinguished the fire by pouring water on burning Anita. She was then shifted to Shardaben Hospital immediately and was admitted as an indoor patient in the Burns Ward of the hospital. P.W. 9, P.S.I., B.G. Chavda, on receipt of the information about the incident, visited the hospital. He gave Yadi Exh. 29 of summon the Executive Magistrate for recording dying declaration of the deceased. P.W. 1 Ramanlal Mathurdas Darji was authorised to record the dying declaration. He reached the hospital at about 4-00 a.m. on January 17, 1988 and having ascertained from the Doctor that Anita was in a fit state of consciousness to give statement, recorded her dying declaration Exh. 10 P.S.I. Chavda, Exh. 9. had also recorded the statement of the deceased at Exh. 28 indicating that on account of cruelty, the deceased commited suicide. Anita was medically treated in the hospital. However, she succumbed to the injuries at about 10-00 a.m. on January 17, 1988. On completion of the investigation, the charge-sheet for the offences under Sections 498A and 306 of the Indian Penal Code was submitted against the appellant.
4. The charge at Exh. 2 was framed on the aforesaid facts and circumstances against the appellant, and he pleaded not guilty to the charge and claimed to be tried. In the statement under Section 313 of the Code of Criminal procedure, the appellant stated that he had no habit of consuming alcohol or any smoking. He maintained that he did not cause any cruelty to the deceased. His case is that of total denial.
5. The learned additional City Session Judge, Ahmedabad, having recorded the evidence of the concerned prosecution witnesses and on appreciation thereof and the other material on record, came to the conclusion that the appellant was guilty of the offences with which he was charged and thereof, he convicted and sentenced him as aforesaid.
I have been taken through the relevant evidence and the material on record and also the judgment under appeal.
6 Mr. J.M. Panchal, learned Advocate appearing for the appellant, submitted that none of the family-members of the deceased Anita lodged the complaint. The complaint at Exh. 30 has been lodged by P.W. 9, P.S.I. Chavda. He further submitted that once there is death in the family, feeling of family-members of the deceased would be hurt and therefore, false and frivolous complaint would be filed, and so is done in the present case. Having considered the entire evidence on record and the dying declarations of the deceased at Exh. 10 band at Exh. 28, I am unable to accept this submission of Mr. Panchal.
7. P.W. 1, Ramanlal Mathurdas Darji has deposed at Exh. 9 that he has been working as a Deputy Mamlatdar (Revenue) in the office of the City Mamlatdar at Ahmedabad. He has been authorised to act as an Executive Magistrate for the area of Ahmedabad City. In the wee hours of January 17, 1988, the Police Constable had come to his residence with the Police Yadi (Exh. 29) indicating that he was summoned for recording dying declaration of the deceased Anita in Shardabai Hospital. He reached the hospital at about 4-00 a.m. He found deceased Anita in the Burns Ward of the hospital She was consciouse. Deceased Anita was able to reply properly. However, he sent for the doctor on duty and confirmed that Anita was in fit fit state of mind and an endorsement to that effect was made by the doctor in the Yadi Exh. 29. At this stage, it may be noted that P.W. 8 Dr. Anil D. Suthar, has testified at Exh. 26 to the effect that the Executive Magistrate, had inquired from him as to Anitaben was conscious and he had certified to that effect in the Yadi Exh. 29. He signed therebelow, after putting time and date. It is thus proved that deceased Anita was conscious at the time of recording her dying declaration Exh. 10. P.W. 1, Ramanlal Mathurdas Darji, the Executive Magistrate, has further stated in his evidence that both the hands of Anita were severely burnt and it was not possible to take her signature or thumb impression. He has also made an endorsement to that effect in the dying declarations Exh. 10. He signed the dying declaration in token of the fact that the dying declaration was recorded by him. He has also deposed that at the time of recording the dying declaration, police and the relatives of the victim were not present in the rooms of the Burns Ward of the hospital. That fact was also recorded in the dying declaration. Nothing material has been taken out in his cross-examination. He denied that the dying declaration Exh. 10 was not as per the declaration made by the deceased.
8. In the dying declaration Exh. 10, deceased Anita stated that she had come to her parents' place for last two days. Col. 10 of the dying declaration is with regard to the incident and its details. Deceased Anita has stated in the said column that she had come to her parents' place from the house of her in-laws. Her husband, after consuming liquor was beating her. She was told to keep illicit relations with his friends and she was being harassed. She had, therefore, come to her parents' house. On account of this, she had burnt herself by pouring kerosene on her person. While burning she raised shouts and as such her brothers and father tried to save her and then brought her to the hospital in rickshaw. She was burnt on her entire body. She has also stated in her dying declaration that she has studied upto 5th Standard. Her both the hands have been burnt. Therefore, she is unable to sign or put thumb impression. She has been read over the statement. The said statement Exh. 10 was completed as 4-25 a.m. on January 17, 1988. It is also recorded in the dying declaration that while recording it, the police or the relatives of the patient were not present and that the patient was in conscious conditions.
9. P.W. 2, Kalyansahay Jagannath Exh. 11, father of the deceased Anita, and P.W. 3, Rajendrakumar Kalyansahay, Exh. 12, and P.W. 4, Babulal Kalyansahay, Exh. 13, both brothers of deceased Anita, have supported the case of the prosecution by deposing that Anita committed suicide on account of cruelty by the appellant to her and that after consuming alcohol the appellant used to harass her and compel her to have illicit relations with his friends.
10. P.W. 6 Kamlaben, wife of Kalyansahay, Exh. 15, is the mother of the deceased Anita. She testified that Anita was not happy in her in-laws' place. Her husband was causing cruelty to her. He was harassing her after consuming alcohol. Her husband used to bring his friends at home and used to tell deceased Anita to do wrong things with his friends. In her cross-examination she has also stated that all these things about the harassment of the appellant was told by her to the wife of P.W. 4, Babulal. All these family witnesses (P.W. 2, P.W. 3, P.W. 4, and P.W. 6) have deposed that deceased Anita was hesitating to go to the place of her in-laws. It appears that P.W. 2 Kalyansahay and his family members being orthodox insisted that deceased Anita should go to her marital home and stay with her husband. P.W. 6 Kamlaben, mother of the deceased, however, has denied the suggestion that Anita committed suicide because she was forcibly sent to the place of her in-laws.
11. There is medical evidence consisting of P.W. 7, Dr. Nayankumar Natvarlal Parikh, Exh. 19, who deposed that deceased Anita was burnt to second and third degrees. She had second and third degree burns on face and neck, second and third degree burns on chest and abdomen, in front and back sides; second and third degree bums on interior lateral part of both thighs and legs. Dr. Parikh completed the autopsy of deceased Anita and proved the post-mortem notes at Exh. 20. The doctor stated that the deceased suffered severe burns to the extent of 70 to 80 per cent. In his cross-examination, he maintained that inspite of the injuries by burns she was able to reply. P.W. 7, Dr. Parikh opined that the external and internal injuries on the dead body of deceased Anita were ante-mortem and were sufficient in the ordinary course of nature to cause death. This witness Dr. Parikh was recalled and re-examined wherein he has stated that the time of carrying out the post-mortem examination stated in the report Exh. 20 as 9-00 a.m. to 10-00 p.m. is erroneously stated. There is no cross-examination on this point on behalf of the appellant.
12. Dr. Anil D. Suthar, P.W. 8, deposed at Exh. 26 that he was discharging his duties as a Resident Doctor in Shardaben Hospital on the night between January 16 and 17, 1988. He had examined the deceased Anita at about 1-10 a.m. on January 17, 1988 and found that she had sustained severe burn injuries. She was, therefore, admitted in the Burns Ward of the hospital. He has stated that he had certified her to be in conscious condition to give dying declaration. In his cross-examination, he denied that normally a patient with such severe injuries to the extent of 90% could not speak.
13. P.W. 9, B.G. Chavda is the Investigating Officer, who gave evidence at Exh. 27. He lodged the complaint at Exh. 13. He also recorded the statements at Exh. 28, of the deceased, wherein she has stated that her husband was learning tailoring job and used to consume liquor every day and was harassing the deceased. Her husband also threatened to keep illicit relations with his friends. Due to such behaviour of the appellant-accused, the deceased felt pinched. She was under extreme torture and trauma. Hence, she went to her father's place and there she committed suicide by pouring kerosene on herself and by putting her person on fire. She stated in her dying declaration at Exh. 28 that she was in conscious condition.
14. The learned Addl. City Sessions Judge having considered the evidence and other materials on record, particularly the dying declarations at Exhs. 10 and 28, rightly convicted, in my opinion, the appellant-accused for the offence punishable under Section 306 of the Indian Penal Code. Mr. Panchal submitted that the deceased Anita had sustained burns to the extent of 99 degrees and her condition was critical. According to the post-mortem notes, her brain was found to be congested and therefore, the deceased could not have been able to or was not in a fit state of mind to give declaration, as is given in Exhs. 10 and 28. The dying declaration Exh. 10 was recorded at about 4-25 a.m. on January 17, 1988. Deceased died at about 10-00 a.m. on the same day and thereafter her autopsy was carried out wherein the brain was found to be congested. It cannot, therefore, be assumed that at the time of recording dying declaration Exh. 10 or Exh. 28, the condition of the brain of the deceased would be so worse as is recorded in the post-mortem notes. Besides, no cross-examination of the doctor on the point is made. In absence of any evidence in this regard, the submission of Mr. Panchal cannot be accepted. Apart from that, the evidence of P.W. 1, Ramanlal M. Darji, read with the evidence of P.W. 8, Dr. Anil D. Suthar, Exh. 26 makes it abundantly clear that the deceased was in conscious condition and in fit state of mind to give the declaration.
15. The submission of Mr. Panchal that the dying declarations are not truthful and trustworthy cannot also be accepted, inasmuch as considering the contents of the dying declaration with the evidence of P.W. 1, the Executive Magistrate, and P.W. 8, Dr. Anil D. Suthar, both the dying declarations inspire confidence and are found to be trustworthy and truthful.
It is well-settled that Section 32 of the Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. The second part of Clause X of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. In the present case, there is clear evidence of P.W. 1 that all the relatives of the victim and police personnel were sent out at the time of recording the dying declaration. There is even no allegation that the dying declaration came to be recorded as a result of prompting or tutoring. In the facts of the case, both the dying declarations on record are admissible in evidence and are relevant. The learned Judge has relied and acted upon both the dying declarations, finding them to be reliable.
16. Mr. Panchal then submitted that no abetment or aiding to the commission of suicide can be attributed to the appellant, as the deceased committed suicide at her parents' house and that the appellant was not present at that time. According to Mr. Panchal, assuming that the case of cruelty under Section 498A of the Indian Penal Code against the appellant is substantiated and yet no abetment can be said to be proved and the conviction for the offence under Section 306 of the Indian Penal Code is unsustainable. In support of this submission, Mr. Panchal placed reliance on the case of Rameshbhai Ranchhodbhai and Anr. ` State of Gujarat 1989 (2) GLH 240 : 1989 (2) GLR 834. Section 306 of the Indian Penal Code under which the appellant has been charged, provides that 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 of the Indian Penal Code sets out as to what constitutes an abetment. The said section reads as under:
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.
It is true that clauses Secondly and Thirdly would not be applicable in the facts of the present case. The question of abetment would depend upon the nature of the act abetted, in the manner in which the abetment was made. It is obvious that the offence of abetment is complete when the alleged abettor has instigated another to commit the offence. In view of the evidence on the record of the case, there is no doubt that the learned Judge was quite justified in holding that the appellant had instigated Anita to commit suicide. It is established beyond reasonable doubt by the evidence of P.Ws. 2, 3, 4 and 6 that on account of cruelty, deceased Anita was not inclined to go to her marital home. Having regard to the evidence on record, the appellant could be said to have abetted the commission of suicide which, in view, would squarely fall under the First clause, i.e., instigating a person to do a thing. Therefore, in the circumstances it is not necessary to invoke Explanation 2.
17. The Division Bench of this Court (Coram: R.J. Shah and J.P. Desai, JJ.) (as they were then) held in the case of Rameshbhai Ranchhodbhai and Anr. (supra) that for establishing abetment covered by Clause "Thirdly" read with Explanation 2 of Section 107 I.P.C. it has to be established that there was intentional aiding. Mere aiding may not amount to abetment unless it is intentional. Mere act or omission on the part of a person which in fact, results in facilitating the commission of the offence will not satisfy the requirements of Explanation 2 of Clause "Thirdly". Thus, the finding recorded by the Division Bench was in connection with the facts of that particular case before the Bench. In the present case, there is no question of applying clause Thirdly read with Explanation 2 of Section 107 of the Indian Penal Code. In my opinion, therefore, the above case relied upon by Mr. Panchal is not applicable to the facts of the present case.
18. As to what would constitute instigation for the commission of an offence would depend upon the facts of each case. In order to determine whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. Therefore, the instigative effect of the words used and acts done by the appellant-accused must be judged on the basis of the distraught condition to which the accused had driven deceased Anita. Realising her helpless state of condition and frustration, if the appellant-accused had told her to have illicit relationship with his friends and if the deceased suffered from torture and trauma of such behaviour of the appellant, it is not surprising that she would commit suicide later due to the instigation of the appellant-accused.
19. At this stage, it would not be out of place to refer to Section 113A of the Indian Evidence Act. Section. 113A provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. The Explanation to Section 113A of the Evidence Act says that for the purposes of the section, "Cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code. Deceased Anita was married to the appellant-accused in November 1986 and the unfortunate event of death by suicide look place in January, 1988. Thus, the commission of suicide is within the period of seven years from the date of the marriage. Therefore, the provision of Section 113A of the Evidence Act is clearly attracted to the facts of the present case. There is no evidence worth the name by way of rebuttal of the above statutory presumption as to the abetment by the appellant in the commission of suicide.
20. Mr. J.M. Panchal, learned Advocate for the appellant, submitted that the prosecutions witnesses, excepting the Doctors, are the near relatives of deceased Anita and as such their evidence should not be accepted on the point of cruelty. It is well-settled that the evidence of such relatives is required to be scanned with care and caution and if it inspires confidence it can well be relied on. It is true that P.W. 2 Kalyansahay Jagannath, was father of the deceased, and P.Ws. 3 and 4, were her brothers and P.W. 6, Kamlaben, was the mother of the deceased, who have deposed against appellant. However, having considered the evidence of all these relatives, it is not found to be exaggerated or unbelievable. In this connection, Mr. Panchal has relied upon the case of Sharad Birdhichand Sarda v. State of Maharashtra . It is observed in the said decision that in view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth, or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses, in order to see that the offender is punished. This is human psychology and no one can help it. In the present case, considering the evidence of the abovenamed relatives, it cannot be gainsaid that their evidence has become doubtful or unreliable due to their relations with the deceased. What is required is to scan such evidence with the due care and caution. Thus, considering the evidence of such relatives, the learned Addl. Sessions Judge has rightly placed reliance on them. The submission of Mr. Panchal, therefore, requires to be rejected and is so rejected.
21. Mr. Panchal then relied upon the case of Smt. Sarla Prabhakar Waghmare v. State of Maharashtra and Ors. 1990 Cri. LJ 407, wherein the Bombay High Court (At. Nagpur) held that it is not every harassment or every type of cruelty that would attract Section 498A, and that it must be established that beating and harassment was with a view to force wife to commit suicide or to fulfil illegal demands of husband and in-laws. Having perused this judgment, I am of the view that the ratio laid down therein would not be applicable to the facts and circumstances of the present case. It is observed in the above Bombay High Court judgment that after going through the evidence of the applicant-wife it did not appear that it is conclusively established that the beating and harassment was with a view to force her to commit suicide or to fulfil the illegal demands of the non-applicants. In the present case, the wife was compelled to commit suicide due to cruelty and harassment, as the appellant-husband wanted her to have illicit relations with his friends. Therefore, the ratio laid down in the case of Smt. Sarla Prabhakar Waghmare (supra) cannot be made applicable to the facts of the present case.
22. Mr. S.T. Mehta. learned Addl. Public Prosecutor, in support of the prosecution case, relied upon the case of Gurbachan Singh v. Satpal Singh and Ors. . In that case, the Supreme Court held that for the offence under Section 306 of the Indian Penal Code, the first thing that is necessary for proving the offence is the fact of suicide. Abetment is a separate and distinct offence provided the thing abetted is an offence. Abetment does not involve the actual commission of the crime abetted, it is a crime apart. In that case, it was contended on behalf of the accused that there was no direct evidence of the act of suicide. There could not be any direct evidence in the circumstances in which she died. It was a case of suicide by burning. She was in the house of her in-laws. There was ample and sufficient evidence that she had complained that she was taunted for bringing meagre dowry and that even insinuated that she was carrying an illegitimate child. These facts stood established by cogent and reliable evidence. In the facts of that case, the Supreme Court reversed the order of acquittal of the respondent-husband and confirmed the order of conviction recorded by the trial Court. The ratio laid down in Gurbachan Singh's case (supra) is squarely applicable to the facts of the present case. It is clearly and cogently established that the prosecution established the guilt of the appellant beyond all reasonable doubt. There is, therefore, no infirmity or discrepancy in the judgment under appeal.
23. In the above view of the matter, there being no merit in the appeal, the appeal is dismissed.