Gujarat High Court
State Of Gujarat vs Mukeshbhai Kishanlal ... on 4 May, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/596/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 596 of 2012
With
CRIMINAL APPEAL NO. 598 of 2012
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 or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
MUKESHBHAI KISHANLAL KHATIK....Opponent(s)/Respondent(s)
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Appearance:
MS HANSA PUNANI ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR.HARDIK B SHAH, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 04/05/2016
ORAL JUDGMENT
1.0 Both these appeals are filed by the State challenging the Page 1 of 17 HC-NIC Page 1 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT impugned judment and order rendered in Sessions Case No. 346 of 2011 by the learned Additional City and Sessions Judge, Court No. 7, dated 07.03.2012 recording the conviction and sentence as stated in the impugned judgement.
2.0 Criminal Appeal No. 596 of 2012 is filed under Section 377 of the Code of Criminal Procedure, 1973 challenging the impugned judgement seeking the enhancement of the sentence awarded for the conviction under Section 498(A) of Indian Penal Code. Similarly the Criminal Appeal No. 598 of 2012 is filed by the State challenging the judgement and order recording the acquittal for the offence under Section 306 of the Indian Penal Code.
3.0 The facts of the case, briefly summarized, are as follows:
3.1 The deceased daughter of the complainant mother was married to the respondentaccused prior to one and half years. However, as the respondentaccused was not doing any work, the deceased daughter of the complainant used to say him to do some work and the accused is said to have illtreated her and beaten her. Therefore, the deceased daughter of the complainant is said to have committed suicide on 18.06.2011 for which, the complaint being C.R. No. I81 of 2011 registered with Gomtipur Police Station which was initially recorded as an accidental death.Page 2 of 17
HC-NIC Page 2 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT 5.0 After the investigation was over, charge sheet came to be filed with the court of learned Metropolitan Magistrate, Ahmedabad, and it was committed to the Court of Sessions. The learned Additional City and Sessions Judge, Court No.7, Ahmedabad proceeded with the trial and recorded the evidence of the prosecution witnesses. 6.0 After the recording of the evidence of the prosecution witnesses was over, the learned Additional City and Sessions Court recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure.
7.0 After hearing the learned APP as well as the learned advocate for the defence, the learned Additional Sessions Judge, Court No.7, Ahmedabad recorded the conviction and sentence as stated in detail in the judgment.
8.0 It is this judgment and order which has been assailed in the present appeal by the State challenging the acquittal for offence under Section 306 of the Indian Penal Code and also for enhancement under Section 498(A) of the Indian Penal Code on the grounds stated in detail in the memo of appeal.
9.0 Heard learned Additional Public Prosecutor Ms. Hansa Punani for the appellantState and learned advocate Shri Hardik Shah for the Page 3 of 17 HC-NIC Page 3 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT respondent accused.
10.0 Learned Additional Public Prosecutor however referred to the testimony of PW 5 complainant mother at Exh. 12. She emphasized that the respondent accused was not doing any work and was habituated to drinking liquor. She submitted that because of such habit and without doing any work, harassment was caused to the deceased. Learned Additional Public Prosecutor submitted that it is this kind of conduct and constant harassment, which might have led her to commit suicide. 11.0 Learned Additional Public Prosecutor also submitted that constant torture and harassment which he is creating the situation that the victim may be compelled to commit suicide. She submitted that thus it would be a mental process where a victim may find it difficult to bear it any more leading to to the suicide. She therefore, submitted that the judgement and order recording the acquittal for the offence under Section 306 of the Indian Penal Code may be reversed. Similarly in the conviction recorded for the offence under Section 498(A) of the Indian Penal Code, leniency is shown while imposing the sentence and therefore, it may be enhanced.
12.0 Learned advocate Shri Hardik Shah for the respondentaccused referred to the evidence including the testimony of witness complainant mother PW 5 Kamlaben Surajmal Khatik at Exh. 12, and also PW 7 Page 4 of 17 HC-NIC Page 4 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT Suresh Vinbhai Oad at Exh. 18 and submitted that the allegations regarding harassment are of the routine nature and are vague. He also referred to the observations in the judgement and submitted that the learned Additional Sessions Judge has failed to appreciate this aspect. Learned advocate Shri Hardik Shah for the respondentaccused submitted that there must be a proof of direct or indirect act of mens rea of instigating for commission of suicide. He submitted that even if all evidences of prosecution witnesses are believed and accepted as it is, it would not attract the offence under Section 306 of the Indian Penal Code.
13.0 Learned advocate Shri Hardik Shah for the respondent submitted that similarly, conviction for the offence under Section 498(A) of the Indian Penal Code is erroneous as harassment by itself is not sufficient unless it can be shown that it was of such a nature that it would amount to cruelty as provided in Explanation of Section 498(A) of the Indian Penal Code.
14.0 Learned advocate Shri Hardik Shah for the respondent referred to the observations in the judgement and, therefore, he also referred to and relied upon the judgement of the Hon'ble Apex Court in case of Ramesh Kumar versus State of Chhattisgarh reported in 2001(9) SCC 681 and observation made in Paragraph Nos. 10 and 20. Paragraph Nos. 10 and 20 reads as under:
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HC-NIC Page 5 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT "10.0 Section 306 IPC provides that if any person commits suicide, whoever, abets the commission of such suicide, shall be l iable to be punished. The ingredients of abetment are set out in Section 107 IPC, which reads as under:
"107. Abetment of a thing. A person abets the doing of a thing, who FirstInstigates 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."
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 effect or what constitutes instigation must necessarily and specifically be suggestive of the consequent. 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."
15.0 Similarly, he referred to the judgement of the Hon'ble Apex Court in case of Kishangiri Mangalrigi Goswami versus State of Gujarat reported in 2009 (2) GLR (SC) 1074 and also referred to the observations made in paragraph Nos. 9, 12 and 14. Paragraph Nos.
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9,12 and 14 which are read as under:
"9. 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. Section 306 of IPC.
12. In case of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. [ See. Mahinder Singh v. State of M.P. 1995 AIR SCW 4570].
14. The conviction so far as it relates to Section 306 IPC therefore, cannot be sustained in view of the background facts and is set aside. But the materials on record particularly the letters on which specific emphasis has been led by the trial Court and the High Court amply demonstrate the commission of offences punishable under Section 498A IPC and Section 3 of D.P. Act. The convictions are sustained. But the sentence is respect of Section 3 of D.P. Act is reduced to three years." 16.0 He emphasized that "incitement involves mental process of instigating some person or intentionally aiding the person in doing of a thing. In case of conspiracy also, it would involve mental process of entering into conspiracy for the doing of that thing. 17.0 He also referred to the judgement of the Hon'ble Apex Court in case of Sanju alias Sanjay Singh Sengar versus State of Madhya Page 7 of 17 HC-NIC Page 7 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT Pradesh reported in 2002 AIR SCW 2035 and emphasized observation made in para 12. which reads as under:
"12 In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:
" A word uttered in a fit of anger or emotion without intending the consequences is actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference 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 for abetting the offence of suicide should be found guilty/"
18.0 He also referred to and relied upon the judgement of the Hon'ble Apex Court in case of State of Goa versus Sanjay Thakran and another reported in (2007) 3 SCC 755, referring to the observations made in paragraph No. 16 which read as under;
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of the acquittal the court of appeal would not ordinarily interfere with the order of Page 8 of 17 HC-NIC Page 8 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT acquittal unless the approach of lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse. Merely because two views are possible the court of appeal would not take the view which would upset the judgement deliverd by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with."
19.0 He also submitted that while considering the appeal, what the appellate court has discussed that merely because other view is possible may not be sufficient to disturb the findings of acquittal recorded by the Court below.
20.0 Therefore, he submitted that the appeal filed by the State may not be entertained.
21.0 In view of the rival submissions, it is required to be considered that whether the conviction for the offence under Section 498(A) of the Indian Penal Code could be sustained or whether the acquittal for offence under Section 306 of the Indian Penal Code calls for interference.
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22.0 A detailed scrutiny of the evidence and material on record clearly establish the harassment which is stated by the complainant mother PW 5 in her testimony at Exh. 12. It has also been referred in the impugned judgement that the deceased was habituated to drinking liquor and was not doing any work. Therefore, it led to the quarrels and ultimately harassment was caused to the deceased daughter of the complainant as she was also beaten. The provision of Section 498(A) of the Indian Penal Code referred to "cruelty" means 'willful conduct which is of such a nature as is likely to drive the woman to commit suicide............ harassment of the woman where such harassment is with a view to meet any unlawful demand for any property or valuable security.' 22.1 In the facts of the case, the willful conduct of a such nature is likely to drive woman to commit suicide or cause injury as required to be considered in the background of testimony of the complainant mother. The testimony of the complainant mother PW 5 at Exh. 12 refers to the same facts that the accused was habituated to drinking and was not earning anything which led to the problems of maintenance and survival. At the same time, it has been admitted that he used to visit the complainant. Thus, the harassment of the continuous torture would amount to the cruelty as provided in Section 498(A) of the Indian Penal Code.
23.0 At the same time, the moot question is as to whether the Page 10 of 17 HC-NIC Page 10 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT provision of Section 306 of the Indian Penal Code would be attracted or whether the acquittal recorded by the court below calls for interference. 24.0 As could be seen from the provision of Section 306 of the Indian Penal Code in order to convict the person for the offence under Section 306 of the Indian Penal Code, there has to be mens rea to commit the offence. However, it requires an active or direct act which led the deceased to commit suicide leaving no option. In other words, any such act must have intended to bear the deceased to commit suicide. The Hon'ble Apex Court has considered this aspect with regard to meeting out the word "suicide" in the judgement reported in case of M. Mohan versus State reported in 2011(3 SCC 626 ). It has been observed in 'sui' and 'cide'. This imply the act of self killing. This would again suggest that there has to be nexus and connection between the harassment or inducement and the actual act of suicide. If the act of harassment is of such a nature that it would create a situation leaving no option but to commit suicide, it would attract the offence under Section 306 of the Indian Penal Code. However, at the same time if the harassment is there but the overall circumstances on the conduct suggests that the deceased was not put in a situation that she has no option but to commit suicide it would not attract Section 306 of the Indian Penal Code and ingredients are not fulfilled. The Hon'ble Apex Court in judgement the reported in case of Ramesh Kumar versus State of Chhattisgarh reported in 2001(9) SCC 681, has referred to Page 11 of 17 HC-NIC Page 11 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT this aspect that offence under Sections 498 (A) and 306 of the Indian Penal Code are two independent offences which depends upon the facts of the case whether the "cruelty" as provided under Section 498(A) is established. However, merely because the accused is held liable for offence under Section 498(A) of the Indian Penal Code. it does not fall in the same offence. He must also be guilty for offence under Section 306 of the Indian Penal Code. In the judgement, the Hon'ble Apex Court has analyzed the provision of Section 306 of the Indian Penal Code and Section 107 abatement of a thing. The provision of Section 113 A of the Evidence Act in Criminal Law ( Second) Amendment Act, 1983 has to be read together to attract the applicability of the offence under Section 306 of the Indian Penal Code. The presumption under Section 113 A is not mandatory; and it leaves option for the Court to make the presumption and therefore, the word employed is "be presumed". In other words when the legislature has employed the word "may presume" which means the discretion depending on facts and circumstances and overall appreciation of all the circumstances and material evidence on record. It would suggest that before the Court proceeds to record the conviction under Section 306 of the Indian Penal Code, it must be satisfied based on the necessary evidence about the offence in the provisions of Section 306 of the Indian Penal Code which have been considered by the Hon'ble Apex Court regarding the conduct of the parties. Further, it may have a different sheds depending upon the sensitivity and tolerance of the individual. Therefore, merely Page 12 of 17 HC-NIC Page 12 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT because the accused has been held liable for offence under Section 498(A) of the Indian Penal Code, it does not follow that on the same material, he must also necessarily be held guilty of having abated the commission of suicide by a woman.
25.0 Therefore, it is not a case where because of act or omission immediately before the act of suicide or by its act of instigating the deceased was lead to commit a suicide. It cannot be said that the deceased was left with no other option except to commit suicide particularly when she was used to visit the parental home where she would have sufficient time to balance herself. It in these circumstances on overall appreciation and scrutiny of the evidence, the acquittal for offence under Section 306 of the Indian Penal Code recorded by the Court below does not call for any interference and the Criminal Appeal No. 598 of 2012 deserves to be dismissed.
26.0 As far as Criminal Appeal No. 596 of 2012 for enhancement in the sentence as stated and discussed in the impugned judgement is concerned, the court below while recording the conviction has imposed the sentence. Therefore, the moot question is as to whether it can be said to be too lenient or it can be said to be contrary to the statutory provision providing for the minimum punishment. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2008 SC 2314 in case of Siriya alias Shri Lal v. State of M.P. It has Page 13 of 17 HC-NIC Page 13 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT been observed referring to the doctrine of proportionality:
"8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu [1991(3) SCC 471]
27.0 This is a reference to the sentence in appeal and in India we do not have any policy for sentencing like other country. However, the Court by judicial pronouncement evolve the concept of doctrine of proportionality and sentence. This has a reference to the balancing gravamen of the offences which may have the impact on the society and severity of punishment qua the accused which again will have a bearing on social consideration like the age of the accused and the manner in which the offence is committed. This has perhaps been considered referring to different theories of punishment like deterrent, retributive and re formative or rehabilitation. The Hon'ble Apex Court in a judgment reported in (2015) 7 SCC 359 in case of Satish Kumar Jayantilal Dabgar v. State of Gujarat has considered this aspect of punishment. It has been observed quoting from the judgment reported in (2014) 6 SCC 466 in case of Narinder Singh v. State of Punjab:
"14. The law prohibits certain acts and / or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kinds. Mostly, punishment provided for committing offences is either Page 14 of 17 HC-NIC Page 14 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. ...........................................................There are many philosophies behind such sentencing justifying these penal consequences. The philosophical / jurisprudential justification can be retribution, incapacitation, specific deterrence, general eterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. Further, referring to this aspect it has been observed:
..............there may be offences falling in the category where correctional objective of criminal law would have to be given more weightage in contrast with deterrence philosophy.
28.0 Further, it is well accepted that while imposing the sentence the court is required to be exercise judicial discretion. The Hon'ble Apex Court in a judgment reported in (2004) 8 SCCF 307 in case of Aero Traders (P) Ltd. v. Ravinder Kumar Suri has observed:
"6. ...........According to Blacks Law Dictionary judicial discretion means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a courts power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word discretion connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hardandfast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination,....................................................................
Thus, normally, the appellate court would not disturb the exercise of discretion unless it can be said to be perverse or contrary to the statutory provisions providing for minimum sentence".Page 15 of 17
HC-NIC Page 15 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT 29.0 Therefore, while considering the aspect of punishment, the Court is required to exercise discretion judiciously. Therefore, the court below on appreciation of the material evidence has exercised its discretion, convicting the respondent accused for offence under Section 498(A) of the Indian Penal Code and hence sentencing two years Rigorous Imprisonment with fine of Rs. 2000/ cannot be said to be too lenient. Normally the appellate court would not disturb that judicial discretion of the lower Court while imposing the sentence on appreciation of the facts and circumstances unless it can be said to be harsh or too lenient or is contrary to the statutory provisions. The facts of the case therefore, convicting the accused for the offence under Section 498(A) of the Indian Penal Code is recorded and sentence has been imposed as stated above cannot be said to be erroneous or too lenient which would call for any interference on any of the ground stated in the appeal. Hence, Criminal Appeal No. 596 of 2012 preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 challenging the impugned judgement and order dated 07.03.2012 passed by the learned Additional Sessions Judge, Court No. 7, Ahmedabad in Sessions Case No. 346 of 2011 for enhancement of sentence for the offence under Section 498(A) of the Indian Penal Code cannot be entertained and deserves to be dismissed. Hence, the appeal stands dismissed. Criminal Appeal No. 598 of 2012 preferred by the State of Gujarat under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal under Page 16 of 17 HC-NIC Page 16 of 17 Created On Fri Jun 10 23:00:36 IST 2016 R/CR.A/596/2012 JUDGMENT Section 306 of the Indian Penal Code also deserves to be dismissed. Hence, the both appeals stand dismissed.
(RAJESH H.SHUKLA, J.) niru* Page 17 of 17 HC-NIC Page 17 of 17 Created On Fri Jun 10 23:00:36 IST 2016