Gujarat High Court
Parmar vs State on 13 December, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CR.A/874/2009 29/ 29 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 874 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
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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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PARMAR
JAGDISHBHAI DHULABHAI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
JB PARDIWALA for Appellant(s) : 1, MR HIMANSU M
PADHYA for Appellant(s) : 1,
MR LR POOJARI APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 18/08/2010
ORAL
JUDGMENT
The present appeal is directed against the judgment and order rendered by the Learned Additional Sessions Judge, Fast Track Court No.2, Patan in Sessions Case No.35/2008 recording conviction of the appellant-accused for the offences under Sections 306 and 498(A) of the Indian Penal Code imposing rigorous imprisonment for five years and fine of Rs.1,000/-, in default, to undergo simple imprisonment for three months under Section 306 of the Indian Penal Code and also imposing rigorous imprisonment for two years and fine of Rs.500/-, in default, to undergo simple imprisonment for one month under Section 498(A) of the Indian Penal Code.
The facts of the case briefly summarized are as follows:
2.1 It is the case of the prosecution as narrated in the complaint at Exh.95 that on 06.04.2008, the deceased-wife of the accused committed suicide by pouring kerosene over her body and set herself ablaze on account of harassment at the hands of the accused. On the basis of said complaint, FIR being C.R.No.I-21/2008 came to be registered with Varahi Police Station for the offences under Sections 498(A), 307 and 323 of the Indian Penal Code. Thereafter, the investigation was carried out.
2.2 After the investigation was over, chargesheet was filed and the case was committed to the Court of Sessions. Thereafter, Learned Additional Judge framed charge against the appellant-accused for the offence under Sections 498(A) and 302 of the Indian Penal Code vide Exh.9 and proceeded with the trial.
2.3 In order to bring home the charges leveled against the accused, the prosecution has examined witnesses and has also produced several documentary evidence.
2.4 After the recording of evidence of prosecution witnesses was over, the Learned Additional Sessions Judge, Fast Track Court No.2, Patan recorded further statement of the accused person under Section 313 of the Criminal Procedure Code.
2.5 After hearing the learned APP as well as learned advocate for the accused, the Learned Additional Sessions Judge, Fast Track Court No.2, Patan acquitted the appellant-accused under Section 302 of the Indian Penal Code and convicted him for the offence under Section 306 and 498(A) of the Indian Penal Code and sentenced him as stated hereinabove.
It is this judgment and order, which has been assailed in the present Appeal on the grounds set out in detail in the memo of the Appeal inter alia stating that the Learned Judge has failed to appreciate the material and evidence on record. It is also emphasized that the Learned Judge has failed to appreciate the charges leveled against the accused, which cannot be said to have been established. Therefore, the conviction recorded is erroneous.
Learned counsel, Mr.Pardiwala for the appellant-accused at the outset submitted that he would focus his arguments with regard to conviction for the offence under Section 306 of the Indian Penal Code and accepting the evidence at its face value for the offence under Section 498(A) of the Indian Penal Code, the Court may consider whether the conviction could be sustained or not for the offence under Section 306 of the Indian Penal Code. Learned counsel, Mr.Pardiwala referred to the testimony of Anishaben Jagdishbhai, daughter of the accused as well as victim (P.W.No.5, Exh.35) and submitted that though she is the eyewitness and has narrated about the incident, she has been declared hostile. However, he submitted that her testimony refers to the quarrel and the deceased is said to have poured kerosene, at that time, the accused tried to snatch away a match box from the deceased. He further submitted that thereafter also, he is said to have made efforts to extinguish the fire and taken her to the hospital. Learned counsel, Mr.Pardiwala submitted that it would be relevant while considering the conduct of the accused before and after the incident. He has also referred to the testimony of P.W.No.6, viz., Gangaben Govindbhai at Exh.38, who is mother of the deceased and submitted that her evidence would be hearsay as she is said to have stated that the deceased had stated her that she was set ablaze by the accused. He also referred to the testimony of P.W.No.17, Dr.Ramlakhan Nunaman at Exh.58 and submitted that he had examined the deceased and had recorded the history. Learned counsel submitted that he has stated in his testimony at Exh.58 that the deceased was having burn injuries upto 95% of second and third degree and was also having injuries all over the body as well as respiratory system. He also referred to the certificates, Exh.59 & 60. He also referred to the testimony of P.W.No.9 viz., Dilipsinh Pruthvisinh at Exh.41, who is also stated to be a witness and submitted that this witness has stated that when he was in room, the deceased had quarrel with one Manjuben and tried to submit that the deceased had a quarrel with Manjuben, who is an aunt and on that basis, as the accused had not supported, she had a grievances. Learned counsel, Mr.Pardiwala again referred to the testimony of Dr.Paresh Kanaiyalal (P.W.No.15, Exh.51) and submitted that he is the doctor before whom the deceased was brought initially at Radhanpur, who recorded history given by the deceased and on that basis, certificate is given, which is at produced Exh.52 and the case papers are produced at Exh.53. Learned counsel, Mr.Pardiwala referred to the cross-examination and submitted that this doctor has admitted that she was treated as indoor patient as stated in the case papers at Exh.53. He also referred to the certificate at Exh.52 and submitted that in light of this certificate, subsequent treatment was given and also progress note with regard to treatment at Civil Hospital. Learned counsel, Mr.Pardiwala submitted and emphasized that she was administered medicine including pain killer and, hence, she might not have been in a fit state of condition to give dying declaration, which is stated to have been recorded. Learned counsel, Mr.Pardiwala referring to the testimony of Dr.Ramlakhan submitted that it refers to the fact that she had been referred for psychiatric counseling. Learned counsel, Mr.Pardiwala submitted that she had a family problem and used to remain upset for last 2-3 months and had also disturbed sleep. Therefore, learned counsel, Mr.Pardiwala submitted that while considering the aspect of abetment for suicide and conviction for the offence under Section 306 of the Indian Penal Code, this would be very relevant, which the Court below has failed to appreciate. Again, he referred to the testimony of Dr.Mahamadnaim Farukhshaikh (P.W.No.11, Exh.82) and submitted that this doctor has also stated that she was having burn injuries to the extent of 95% as well as on the respiratory system. He also stated that the medicines were administered including anti-biotic and pain killers. He, therefore, submitted that he has also stated in the cross-examination that it was noted by the psychiatric that she had thoughts for the suicide as she was mentally disturbed and had also disturbed sleep. This aspects have not been considered by the Court below and, therefore, the learned counsel, Mr.Pardiwala submitted that the provisions of Section 306 of the Indian Penal Code may be considered, for which, he referred to Section 306 of the Indian Penal Code and emphasized that the ingredients for the offence cannot be said to have been established or proved in light of this evidence on record. Learned counsel, Mr.Pardiwala in support of his submission referred to and relied upon the judgments reported in 2005 Cr.L.J. Sc 3439 in case of Sushil Kumar Sharma V/s. Union of India & Ors. and emphasized observation made in Para No.10 of the said judgment to emphasize that there is basic difference between two sections i.e. Section 306 and Section 498(A) of the Indian Penal Code is that of intention. Learned counsel, Mr.Pardiwala submitted that from the evidence on record, there is no evidence with regard to mens-rea or the intention of the accused that he had an intention to set her ablaze or even to abet her for committing suicide. He emphasized and submitted that though the charge was framed for the offence under Section 302 of the Indian Penal Code, same has not been believed or accepted. Learned counsel, Mr.Pardiwala submitted that while appreciating on this aspect, the Court below has failed to consider the provisions of Section 306 of the Indian Penal Code also and has, therefore, recorded the conviction for the offence under Section 306 of the Indian Penal Code erroneously. Learned counsel, Mr.Pardiwala also referred to and relied upon the judgment of this Hon'ble Court reported in 2008(2) GLH 469 in case of Abhay Harinandan Oza V/s State of Gujarat again referring to this very aspect of difference between two Sections i.e. Section 306 and Section 498(A) of the Indian Penal Code is that of intention. He referred to the observations made in Para No.8. He also referred to and relied upon the judgment reported in 2006(1) GLH 718 and submitted that the law has been discussed in this judgment referring to the judgment of the Apex Court as to when the Section 306 of the Indian Penal Code could be attracted, for which, he emphasized the observation made in this judgment and submitted that for the allegations about the harassment or cruelty without further corroboration that before the incident, there was some harassment or torture to the deceased, which had permitted or instigated or abettor to commit suicide and, hence, the conviction under Section 306 of the Indian Penal Code could not be sustained. He also referred to and relied upon the judgment reported in 2009(4) SCC 52 in case of Kishangiri Mangalgiri Goswami V/s State of Gujarat to emphasize about the ingredients for the offence under Section 306 of the Indian Penal Code and when it has been said to have been abeted. He emphasized referring to the observation in Para No.7 of the said Judgment that there must be a proof of direct or indirect proof of incitement of committing suicide. Learned counsel, Mr.Pardiwala submitted that the fact that the accused-husband treated the deceased with cruelty by itself would not be enough. Therefore, learned counsel, Mr.Pardiwala strenuously submitted that even accepting the evidence of the prosecution as its, the conviction for the offence under Section 498(A) of the Indian Penal Code may be justified but the impugned judgment and order recording conviction for the offence under Section 306 of the Indian Penal Code is erroneous. He also referred to other judgments reported in 2002(5) SCC 371 in case of Sanju @ Sanjay Singh Sengar V/s State of M.P. in support of his submission.
Learned A.P.P., Mr.Poojari referred to the testimony of the material and evidence including the testimony of P.W.No.5 viz., Anishaben Jagdishbhai, Exh.35, the daughter of the deceased as well as accused and submitted that she is the eyewitness and though she has been treated as hostile, she has narrated as to what had transpired and has clearly stated about the quarrel on previous day as well as on the same day morning when the deceased is said to have stated to the accused that when other are quarreling with her then why the accused is not taking her side. Learned A.P.P. has also referred to the testimony of P.W.No.15, Dr.Paresh Kanaiyalal, Exh.51 and submitted that he was discharging his duty as Medical Officer with Referal Hospital, who had recorded the history given by the deceased. He emphasized that he has stated about the injuries and fact that she had extensive burn injuries and treatment was given to the deceased. He has issued certificates at Exh.52 & 53, which suggest about the burn injuries. He also referred to injury certificate, Exh.60, which itself records history. He also stated that the history is given by the deceased that because of the harassment given by the accused, she has committed suicide and there is a reference for the dying declaration also. Learned A.P.P. submitted that therefore yadi was sent for recording the dying declaration which is at Exh.63 and the endorsement of the Dr.Kinnar Rameshbhai (P.W.No.29, Exh.91) is also there that the patient is conscious and oriented at present. Learned A.P.P. also referred to the testimony of P.W.No.17 viz., Dr.Ramlakhan Nunaman, Exh.58 (Medical Officer, Civil Hospital, Ahmedabad), who is also stated to have recorded the history, which is stated in the injury certificate, Exh.59, which also suggest about 95% burn injuries to the second and third degree and in that case papers at Exh.60, she has stated that she had committed suicide due to harassment by the accused. He referred to the testimony of P.W.No.17 viz., Dr.Ramlakhan, Exh.58 and submitted that though this doctor has stated that she had 95% burn injuries, she has stated that he had sent yadi for recording dying declaration. The Executive Magistrate, who is examined as P.W.No.18, Exh.62, has stated that he had received yad with endorsement of the doctor, at Exh.63 and on that basis, he had recorded the dying declaration, Exh.64. Learned A.P.P. referred to the testimony of the Executive Magistrate, P.W.No.18, Exh.62 and submitted that he has corroborated the prosecution case and has clearly stated that the harassment was caused to her, as a result of which, she is committing suicide. She has referred to the earlier incident that she had gone away and, thereafter, she was at Women Protection Home for some time and after some time, compromise was arrived at and she returned to stay with the accused. He submitted that he has also stated that the endorsement was regarding the condition of the patient, which was taken on the dying declaration at Exh.64. Learned A.P.P., therefore, submitted that the dying declaration is recorded by the Executive Magistrate, who has stated in his testimony about the condition of the deceased that she was in a fit condition to give statement and he has also stated that the endorsement of the doctor was also obtained when the recording of the dying declaration was over, which is to be found at Exh.64. He referred to Col.No.30 regarding the incident and emphasized that as she has stated that he has not tried to rescue her, but in fact he had run away. Learned A.P.P., therefore, submitted that while considering the conduct, this aspect is also required to be considered as his conduct would be relevant immediately before and after the incident and talk itself suggests that he tried to extinguish the fire and save her but in fact, he had run away as stated by the deceased herself in the dying declaration at Exh.64. He further emphasized that this aspect has been corroborated by the testimony of other witnesses like P.W.No.12 viz., Bhikhabhai Manabhai, Exh.47 when this witness has stated that the daughter of the victim had gone to call him. Similarly, P.W.No.13 viz., Manjulaben Virabhai, Exh.49 has also stated that Anisha had gone to call her stating that the mother has set ablaze. Therefore, learned A.P.P. submitted that the submission with regard to the conduct of the accused is required to be considered with regard to the provisions of Section 8 of the Evidence Act. He, therefore, submitted that this conduct will have to be considered while appreciating the entire evidence for the offence under Section 306 of the Indian Penal Code. Again, learned A.P.P. has referred to the material and evidence and submitted that there is ample evidence in the form of dying declaration corroborated by the testimony of Executive Magistrate, P.W.No.18 at Exh.62, which justify the conviction recorded by the Court below.
Learned A.P.P. submitted that there is no quarrel that there was constant harassment, for which, there were some quarrels in past and she had left the house, thereafter, she stayed at Women Protection Home and after some compromise, she had returned to stay with the accused. She has also stated that there is no support from her parental home as father and brother are in jail. Therefore, learned A.P.P. submitted that it would indicate about the mental conditions in which she was suffering from coupled with the fact that she was ill-treated by the accused. Learned A.P.P., therefore, submitted that she had a mental stress and on the top of that, harassment was caused creating such an atmosphere, which led to commit suicide. He, therefore, submitted that it cannot be said that the impugned Judgment & Order recording conviction for the offence under Section 306 of the Indian Penal Code is erroneous. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1989 SC 1061. he submitted that in that case also, after quarrel, the deceased had set herself on fire and the Hon'ble Apex Court has considered the provisions of Section 306 of the Indian Penal Code and observed in Para No.16 that it would amount to abetment. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1991 SC 1532 in case of The State of Punjab V/s Iqal Singh & Ors. and submitted that in this case also, the relations were strained, which led the wife to commit suicide and again the Apex Court has considering the provisions of Section 498(A) and 306 of the Indian Penal Code has clearly observed that in such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate act. He, therefore, submitted that the atmosphere was created, which ultimately led her to commit suicide and, therefore, ingredients for the offence under Section 306 of the Indian Penal Code would be attracted and the impugned Judgment & Order recording convict is just and proper.
Learned A.P.P. has also referred to and relied upon the judgment reported in 1997 SC 1830 in case of Balram Prasad Agrawal V/s State of Bihar & Ors. and referring to the observation made in Para No.12, he emphasized that treatment meted out to the deceased by the accused-husband continued, which had forced her to commit suicide like in the present case.
In rejoinder, learned counsel, Mr.Pardiwala pointedly referred to the testimony of P.W.No.22 at Exh.82 to emphasize about the treatment given to her and to emphasize that she had some psychological problem. He further submitted that apart from that, she had 95% burn injuries and as stated by P.W.No.15 in his testimony at Exh.51, the medicines were given including the anti-biotic and others, as a result of which, she may not have in a fit state of condition to give statement. He again emphasized referring to Exh.53, which is a case papers of the Referal Hospital, Radhanpur, wherein there is a specific note that the patient is semi-conscious and talks irrelevant, which is also recorded in the certificate at Exh.52. He, therefore, submitted that if that was a condition at Radhanpur then what would have been her conditions at Civil Hospital though the Executive Magistrate is said to have recorded the dying declaration after obtaining necessary endorsement. In support of this submission, he referred to and relied upon the judgmnet of the Hon'ble Apex Court reported in AIR 1986 SC 250 in case of State (Delhi Administration) V/s Laxman Kumar & Ors. and emphasized the observation made in Para No.26 much emphasizing in similar circumstances about the history sheet and the condition. He pointedly referred to the observations that the dying declaration stands on the same footing as other piece of evidence has to be judged in light of surrounding circumstances and with reference to the principles governing weighing of evidence. He, therefore, submitted that the impugned Judgment & Order recording conviction is erroneous.
Alternatively, it was submitted that even if the conviction is maintained as it is, aspect of sentence may be considered as he is having two children, who are looked after by his brother and, therefore, it may be considered.
In view of the rival submissions, it is required to be considered whether the impugned Judgment & Order recording conviction of the accused calls for any interference or not and whether the conviction under Section 306 of the Indian Penal Code could be sustained or not.
The submissions, which have been much emphasized by the learned counsel, Mr.Pardiwala on this aspects are required to be considered in light of the entire material and evidence. It is well accepted that the entire evidence has to be weighed with surrounding circumstances as it has been emphasized referring to the judgment reported in AIR 1986 SC
250. Though the reference has been made to this judgment with much emphasizing Para No.26 with reference to the appreciation of the evidence and weighing evidence that the dying declaration is like any other piece of evidence and has to be judged in light of the surrounding circumstances with reference to principles governing the weighing of evidence. It is also required to be noted that much water has flown thereafter. In a catena of judicial pronouncement, it has been observed that the conviction could be recorded solely relying upon the dying declaration if it is found to be reliable and trustworthy and it does not suffer from any basic infirmity.
Therefore, first aspect, which is required to be considered is the evidentiary value of the dying declaration and corroborative aspect. In the facts and circumstances of the present case, as it is evident from the testimony of the P.W.No.18, Exh.62 (Executive Magistrate), which is required to be considered. He has stated that he had received yadi at Exh.63 with an endorsement of the doctor and he proceeded towards the hospital for recording the dying declaration of the victim. He has stated in this testimony that the deceased had stated about the incident that the accused had a habit of liquor and used to beat her and driven her out, thereafter, she was in the Women Protection Home and after some compromise, she was brought back. This witness has further stated that the deceased had stated that quarrel used to take place and he has also stated that the deceased had stated that when she set herself on fire, the accused ran away and she has specifically stated that she has harassment in all respect. He has also stated that when the dying declaration was over, he had obtained endorsement of the dying declaration as regard the condition of the patient on the dying declaration at Exh.64. The testimony of doctor, who had made endorsement, is at Exh.91. He has stated that after the recording of the dying declaration was over, the Executive Magistrate has asked him to make endorsement regarding the conditions of the patient and he had made the endorsement that the patient is conscious and oriented at present. He has stated that he has made this endorsement on both at yadi at Exh.63, which was sent to the Executive Magistrate before recording dying declaration and the endorsement made on the dying declaration at Exh.64 after it was recorded by him. He has further clarified in the cross-examination that the word oriented would mean that the person is able to gather the time and place. He has also clarified about the guidelines as to when it could be stated to be conscious and when it could be stated as conscious and oriented. He has specifically stated that if the patient is conscious then both are written as per the guidelines. This testimony would rule out any such doubt or possibility raises as regard the condition of the deceased and, therefore, the dying declaration at Exh.64 is fully corroborated by the medical evidence and has to be accepted. Therefore, the submission made by the learned counsel, Mr.Pardiwala referring to this aspect about the condition of the patient and as to whether she could be said to be fit state of condition cannot be accepted. It is well accepted that even if a person is having extensive burn injuries to the extent to 90-95%, still he/she could be conscious and in a condition to make statement.
It is also required to be appreciated that there cannot be any specific standard or measurement on this aspect as it will depend upon the person to person and it depends upon the capacity of the victim to withstand the pain and the psychology. Therefore, in such a cases, though the victim-patient could be suffering from pain yet it will depend upon each case as regard the condition and ability to give statement. Therefore, the submission referring to the history of the endorsement recorded in the case papers of the Referal Hospital at Exh.53 cannot be a ground to brush aside the dying declaration corroborated by the medical evidence in the form of testimony of Dr.Kinnar Rameshbhai (P.W.No.29, Exh.91), who had testified about the conduct.
Another facet of arguments with regard to the conviction under Section 306 of the Indian Penal Code, whether the evidence would be sufficient to attract the provisions of Section 306 of the Indian Penal Code is required to be considered. It is also required to be considered in light of the evidence and particularly the dying declaration at Exh.65 when such dying declaration is accepted whether it would justify the conviction for the offence under Section 306 of the Indian Penal Code. The submissions, which have been made by both the sides referring to Section 306 of the Indian Penal Code and much emphasize given by the learned counsel, Mr.Pardiwala referring to the judgments reported in his submission emphasizing that the basic difference between two sections i.e. Section 306 and Section 498(A) of the Indian Penal Code is that of intention is required to be considered. There cannot be any quarrel on this aspect that both the offence under Sections 306 and 498(A) of the Indian Penal Code are two separate and distinct offence which the statute has provided and, therefore, naturally it has to be considered depending upon the material and evidence as to whether the ingredients for both offence can be said to have been fulfilled or not. Section 306 of the Indian Penal Code reads as under :-
"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."
Therefore, what is required to be considered is whether prior to or at the time of commission of an act, whether any act has been done to facilitate the commission of offence, which will have to be considered in a given set of circumstances and the evidence. The abetment actually depends on the act of instigation or driving the person to commit some act. Aspect of the intention will have to be inferred from the relevant facts and evidence and the intention cannot be established by any direct proof or the evidence as it will have to be judged from the circumstances and the manner in which the incident has occurred reflecting about the conduct and the intention. The facts on record clearly establish about the matrimonial discord and constant quarrel. It is also brought on record as to harassment caused to her with accused having the habit of liquor and not providing sufficiently for the domestic expenses coupled with the fact that it had taken such a aggravated form that the deceased had taken shelter in Women Protection Home.
It appears that she had returned after some compromise to stay with the accused considering the children, if this aspect has been considered, it would suggest about the constant atmosphere, which was so hostile and inhuman that which resulted into such torture and harassment, which became so unbearable that she was left with no option but to commit suicide. It is also required to be appreciated that the deceased with two young children would not have thought of committing suicide and would not have taken such drastic steps to end life leaving infant at the mercy of the accused especially when he is habituated to alcohol. If these aspects which have been brought on record are considered in order to satisfy the Court as regards the ingredients for the offence under Section 306 of the Indian Penal Code and abetmenet, first aspect which the Court will have to be satisfied is that is it not an entire surrounding and environment so created, which was not only unbearable but was so pathetic that she could not be in a position as to what could be done. She had also taken shelter at Women Protection Home as she was not having sufficient support from parental house. In these circumstances, the steps of the deceased committing suicide or having a quarrel cannot be taken as a routine quarrel in the matrimonial life and has to be viewed in the background of the entire evidence.
Provisions of Section 306, which provides for abetement of suicide is required to be considered and Section 107 of the Indian Penal Code defines abetement. Section 107 of the Indian Penal Code read as under :-
107.
Abetment of a thing. - A person abets the doing of a thing, who First.
- Instigate any person to do that thing, or Secondly.-
Engages with one or more other person or person in any conspiracy for the doing 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.
Explanation
1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bout to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that ting.
Explanation
2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
Therefore, Explanation 2 suggests that whoever either prior to or at the time of commission of act does anything in order to facilitate the commission of the act and thereby facilitate the commission thereof is said to aid the doing of that act. The facts would reveal as can be seen from the evidence on record that the accused had created circumstances which had led her to commit suicide further at the time of incident as it is evident from the testimony of P.W.Nos.12 and 13 that the accused ran way when the deceased set herself on fire inspite of making any attempt to rescue her. Therefore, it will have to be considered in context of the provisions of Section 114 of the Evidence Act. A useful reference can be made to the observation made in a judgment of the Hon'ble Apex Court reported in 1997 SC 1830 referred to and relied upon by the learned A.P.P. on this very aspect. The Apex Court while considering the provisions of Section 498(A) of the Indian Penal Code and cruelty has also referred to the provisions of Section 114 of the Evidence Act regarding the presumption and has quoted earlier judgment reported in AIR 1997 SC 1830.
Para No.12 reads as under :
"Leaving aside the cases of statutory presumption, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court may, of course, presume, as mentioned in Section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustration mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case.
A useful reference can be made to the observation made by the Hon'ble Apex Court in a judgment reported in AIR 2008 SC 2108 = 2008 Cr.L.J. SC 2562 referred to and rely upon by the learned counsel, Mr.Pardiwala. In this judgment, the Hon'ble Apex Court has considering the provisions of Section 306 of the Indian Penal Code dealing with the abetment of suicide, considered the earlier judgment reported in AIR 1994 SC 1418 in case of State of West Bengal V/s Orilal Jaiswal & Anr. had observed that "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". Again it has been observed and quoted referring to Section 306 of the Indian Penal Code as under :-
"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 doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 of IPC."
Therefore, in order to attract Section 306 of the Indian Penal Code, there has to be material and evidence, which suggest about the same active role, which may be said to have aided in commission of act of suicide. In the facts of the present case, as discussed above, the constant quarrel creates a situation, which compelled her to take a shelter with Women Protection Home. Further, some compromise was arrived at and she had returned to stay with the accused. The habit of liquor was not sufficiently providing for domestic expenses and on top of that, regular torture and beating will have to be considered as a cumulative effect for atmosphere created which has led her to commit suicide. It is in this circumstances that the Court has to consider whether the material and evidence on record suggest that the atmosphere was so hostile and it was such a miserable that the person left in that situation, which would have led or compelled to commit suicide to end life. Therefore, the Court has to closely scrutinize the material and evidence to find out whether it was a matrimonial discord and this is in domestic life, which is quite common or the atmosphere was so created that had made life miserable aiding for the commission of suicide. This would amount to aiding act of commission of suicide. Thus, some material and evidence which can be broadly considered as harassment, cruelty, torture but again it will have to be considered to find out a cumulative effect and whether such circumstances created could be said to be a normal difference and discord of the domestic life or could be considered as an abetment for aiding the commission of act of suicide will depend upon the material and evidence in each case, which is required to be appreciated on a closure scrutiny. Therefore, once having accepted the dying declaration as reliable and considered entire evidence, the submission made by the learned counsel, Mr.Pardiwala that the conviction for the offence under Section 306 of the Indian Penal Code is erroneous as necessary ingredients cannot be said to have been fulfilled is misconceived and cannot be accepted.
Another facet of argument referring to the act prior to and after the incident as per Section 8 of the Evidence Act is required to be considered. Though Anisha, P.W.No.5, the daughter of the victim as well as accused in her testimony may have stated that the accused had tried to save, the testimony of other witnesses like P.W.Nos.12 and 13 at Exh.47 & 48 respectively suggest that in fact, she had gone to call them and if this testimony of the witnesses lend corroborative to what has been stated by the deceased in her dying declaration at Exh.64 that the accused had run away, this would reflect mentality of not trying to save immediately after the incident, but running away so that the act is complete. If the intention was not there, if there was some quarrel in a heat of passion and if the deceased had tried to set her ablaze, normal conduct would be to make her cool down immediately before or at-least when the incident occurred instead of running away. Naturally, the human conduct is required that the person in such situation should be saved or rescued. This reflects about the conduct and also the intention or mens-rea. Therefore, in light of the discussion made hereinabove, the submissions made by the learned counsel, Mr.Pardiwala much emphasizing the basic difference between two sections and offence cannot be ready accepted. There cannot be any dispute that two offences are separate and distinct and one would require mens-rea, which has to be again gathered from the circumstances and evidence and as discussed above, same is established from the cumulative effect of the circumstances and material and evidence on record. Therefore, the impugned judgment and order recording conviction of the appellant-accused cannot be said to be erroneous and does not call for any interference In the result, the present appeal stands dismissed. The impugned judgment and order rendered in Sessions Case No.35/2008 by the Learned Additional Sessions Judge, Fast Track Court No.2, Patan recording conviction of the appellant-accused for the offences under Sections 306 and 498(A) of the Indian Penal Code is hereby confirmed.
Sd/-
(RAJESH H.SHUKLA, J.) /patil Top