Gujarat High Court
Hemubhai Shamjibhai Lakum (Dalwadi) vs State Of Gujarat on 29 August, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/CR.A/839/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 839 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HEMUBHAI SHAMJIBHAI LAKUM (DALWADI)
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the PETITIONER(s) No. 1
MR AJAY L PANDAV(3660) for the PETITIONER(s) No. 1
MS KRINA CALLA, LD.APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 29/08/2018
CAV JUDGMENT
1. By way of the present appeal filed u/s.374 of Code of Criminal Procedure,1973, the appellant- original accused has challenged the judgement and order dated 29/05/2014 passed by learned Sessions Judge, Surendranagar in Sessions Case No.05/2014, by which, learned Sessions Judge has convicted the appellant- original accused for the offence punishable u/s.498(A) as well as 306 of the Indian Penal Code.
Page 1 of 16 R/CR.A/839/2014 CAV JUDGMENTThe appellant, who is husband of deceased Ranjanben, charged for the offence punishable under section 498(A), 323, 504 and 306 of the Indian Penal Code. At the end of trial, the appellant-accused was acquitted from the offence punishable under section 323 and 504 of the Indian Penal Code, whereas he has been sentenced to suffer R.I. for three years and fine of Rs.3,000/- and in default, further R.I. for six months for the offence punishable under section 498(A) of the Indian Penal Code as well as he has been sentenced to suffer R.I. for seven years and fine of Rs.5,000/- and in default further R.I. for one year for the offence punishable under section 306 of the Indian Penal Code.
2. Brief facts, arise from the record, are as under:
That one Ranjanben aged about 38 years, wife of the present appellant, poured kerosene on herself and set ablaze at her matrimonial home on 30/10/2013 at about 17:00 hours. Having received burn injuries, she was immediately shifted to the Government Hospital. The Medical Officer informed the Wadhwan Police Station since history was given by the deceased about committing suicide.
On receiving the information, the police officer informed the Executive Magistrate, Wadhwan requesting him to record dying declaration of Ranjanben. The concerned Police officer also reached at the Hospital. Dying declaration as well as FIR came to be lodged at the instance of the deceased Ranjanben on the same day. At the initial stage, offence was registered as CR No.II- 3159 of 2013 for the offence punishable under sections 498(A), 323, 504, etc. of the Indian Penal Code. Since Ranjanben succumbed to the death on 31/10/2013 at about 11 hours, Yadi was sent to the Page 2 of 16 R/CR.A/839/2014 CAV JUDGMENT Judicial Magistrate First Class, Wadhwan to add section 306 of the Indian Penal Code.
After completion of the investigation, charge-sheet came to be filed before the concerned Magistrate, which was registered as Criminal Case No. 490/2013. The concerned Magistrate committed the case to the learned Sessions Judge, who has jurisdiction to deal with the offences for which, the appellant-accused was charged. Charge at Exh-3 came to be framed against the appellant, which was denied by the appellant-accused and therefore, trial proceeded further in accordance with law. The prosecution examined 16 witnesses and produced necessary documentary evidence like Certificate issued by the Doctor, P.M. Note, Dying declaration recorded by the Executive Magistrate, different panchnamas, etc. and tried to prove the charge against the appellant- accused. The appellant-accused did not examine any witness. His further statement u/s.313 of the Code was recorded, by which, he denied all the allegations levelled against him during trial. Learned Sessions Judge after considering the oral evidence of 16 witnesses as well as documentary evidence, came to the conclusion that the prosecution was successful in establishing the charges levelled against the appellant for the offence punishable under sections 498(A) as well as 306 of the Indian Penal Code. After the sentence was imposed by the learned Sessions Court, as referred hereinabove, the appellant-accused has preferred this appeal.
3. Ms.Kruti Shah, learned advocate appearing for the appellant- original accused at the outset submitted that considering the dying declaration of the deceased and FIR lodged at her instance, she does not challenge the conviction Page 3 of 16 R/CR.A/839/2014 CAV JUDGMENT recorded for the offence punishable under section 498(A) of the Indian Penal Code, however, she has requested to reduce sentence considering the various aspects like marriage span, having two children and the manner and method in which the incident has taken place.
3.1 As far as conviction recorded by the learned Sessions Judge for the offence punishable under section 306 of the Indian Penal Code is concerned, she has taken through the depositions of various witnesses. She would submit that it is an undisputed fact that the appellant had married with the deceased Ranjanben before 17 to 18 years prior to the date of incident. She would submit that as far as say of the deceased Ranjanben is concerned, on the date of incident, some altercation took place between the appellant and his wife with regard to money. Subsequent to quarrel, she went inside the room and applied stopper from inside and poured kerosene on herself and set ablaze. The appellant had immediately taken his wife to the Hospital, so that she can be saved. She would submit that the deceased had received 95% of burn injuries, which reflect from the Certificate at Exh.8, issued by the Medical Officer. Before the Doctor, the deceased Ranjanben had alleged that she was beaten up by kick and fist blows by her husband as well as father-in-law. However, subsequently when her dying declaration at Exh.31 was recorded by the Executive Magistrate, she has made allegations only against her husband since there was a dispute between them with regard to deficit of money to run the family.
Page 4 of 16 R/CR.A/839/2014 CAV JUDGMENT3.2 By taking me through the deposition of PW-5 Mahendrasinh Kanubha Zala, Exh-23, who recorded the FIR at Exh-24; deposition of Bharatsinh Chandubha Zala, PW-16, Exh-41 as well as the FIR, which was recorded subsequent to Dying Declaration recorded by the Executive Magistrate, she would submit that the deceased has alleged that on the date of incident at about 19:30 hours, some altercation took place between the husband and wife in the presence of the son and she was beaten by the appellant. Subsequent thereto, there is no allegation against the appellant-accused, which would establish the offence of abetment to commit suicide, as alleged by the prosecution and accepted by the learned Sessions Court. She would submit that similar are the allegations in the Dying Declaration at Exh-31 recorded by the Vashrambhai Visabhai Raval, Executive Magistrate, PW-8, Exh-29. She would submit that if Dying Declaration as well as the FIR is perused, only offence punishable u/s.498(A) of the Indian Penal Code, can have been established but subsequent action of the deceased by closing room from inside and committing suicide, cannot be treated as abetment to the same by the appellant- accused. She would submit that to constitute an offence u/s.306 of IPC, intention is imperative. She would submit that prosecution has miserably failed to establish that there was any involvement of the appellant- accused in the act of commission of suicide. Altercation took place between the husband and wife on the date of incident itself does not establish the intention of the appellant- accused to see that the deceased Ranjanben had no alternate but to end her life.
Page 5 of 16 R/CR.A/839/2014 CAV JUDGMENT3.3 She would further submit that there is a difference between the cruelty and harassment as defined u/s.498-A of the Indian Penal Code and abetment of commission of an offence u/s.306 of the Indian Penal Code.
3.4 She would submit that to establish an offence of abetment, prosecution has to establish the ingredience, as defined u/s.107 of the Indian Penal Code. She would submit that it was a case of prosecution that the appellant-accused has instigated the deceased Ranjanben to commit suicide, however has failed to establish in what manner and method, he has done the same things. She would submit that the prosecution has examined relatives of the deceased i.e. her brother, father, mother, cousin brother, sister-in-law, etc., who have stated that she was harassed by the appellant- accused in connection only with some financial issues in the family. She would submit that it is alleged by the deceased as well all these witnesses that Ranjanben was physically assaulted since number of years, however no FIR or any application was submitted by the deceased or any of the family members with the police station. None of the witnesses have stated that the appellant-accused was continuously harassing the deceased, which led her to commit suicide and for the same, the appellant has abetted for the act of the deceased to commit suicide. She would submit that all aspects of harassment defined under section 498(A) of the Indian Penal Code would not necessarily treated to be proved if the wife commits suicide and when there is no abetment as defined u/s.107 of Indian Penal Code.
Page 6 of 16 R/CR.A/839/2014 CAV JUDGMENT3.5 In support of her above submissions, she has relied upon the decision rendered by Hon'ble Apex Court in the case of Gangula Mohan Reddy V/s. State of Andhra Pradesh reported in (2010)1 SCC 750. She would submit that Hon'ble Apex Court has distinguished the provision of sections 107 and 306 of the Indian Penal Code. She has also relied upon the decision rendered by Hon'ble Apex Court in the case of Gurcharan Singh V/s. State of Punjab reported in (2017)1 SCC 433.
3.6 By relying upon the decision rendered by Hon'ble Apex Court in the case of Kishori Lal V/s. State of M.P. reported in (2007)10 SCC 797, she would submit that marriage span in the present case is more than 17 years and when the deceased committed suicide after closing herself in the room, applying stopper, as such there is no material to prove the case that any action was taken by the appellant in the nature of abetting the offence and therefore, the appeal may be allowed as far as sentence imposed the learned Sessions Court for the offence punishable under section 306 of the Indian Penal Code.
4. On the other hand, Ms.Krina Calla, learned Additional Public Prosecutor appearing for the respondent- State has vehemently submitted that the prosecution has established the charges beyond reasonable doubt, for which, the appellant-accused has been convicted. She would submit that when the deceased in injured condition was admitted in the hospital, she has immediately disclosed before the Medical Officer that she was beaten by her husband and father-in-law, however, subsequently when dying declaration Page 7 of 16 R/CR.A/839/2014 CAV JUDGMENT was recorded by the Executive Magistrate on the same day of incident, she has categorically stated that on the date of incident itself, her husband started quarreling on account of household expenses and given kick and fist blows to her. She has further stated that she as well as her elder son both were beaten by her husband. She has specifically stated in her dying declaration that she was fed up with such daily routine torture and harassment of her husband and therefore, she has no alternative but to commit suicide. She has specifically stated that she has committed suicide because of cruelty on the part of her husband only. She has categorically stated that she has no animosity against any of the other family members.
She would further submit that when the FIR was recorded, more facts were disclosed alleging against her husband that she had to stay at her parental home for considerable long time as her husband used to beat her frequently. However pursuant to intervention of the family members, she had returned to her matrimonial home prior to four months from the date of incident and started residing with her husband. The deceased has categorically stated that she was residing with her parents because of physical and mental torture administered by her husband. She has stated that her husband after beating herself and his son, started using abusive language and asked her to live at her parental home with two minor sons. Since she was fed up with such daily torture and cruelty of her husband since last number of years, she has committed suicide.
By taking me through the dying declaration at Exh- 31 and FIR at Exh-24, Ms.Krina Calla, learned Additional Public Prosecutor would submit that it is not only the incident about beating the deceased on the date of incident but she Page 8 of 16 R/CR.A/839/2014 CAV JUDGMENT was continuously harassed by the appellant-husband by beating her. She would submit that the deceased had remained at her parental home because of such cruelty and physical torture by her husband since number of years, however, she returned to her matrimonial home to reside with her husband when assurance was given by her husband in presence of the family members. She would submit that father, mother, brother and his wife, of the deceased have categorically deposed that when the assurance was given by the appellant-accused that he would behaved properly and would not harass the deceased, she was sent with her husband. However, within no time, again original behaviour of the appellant-accused begun and cruelty was administered upon the deceased. On the date of incident, deceased and a minor son were beaten and abusive language was used by the appellant-accused and asked the deceased to leave her matrimonial home. It was further stated by the deceased that she was fed up with her husband about daily routine torture, which establishes that the appellant was behaving in such a manner that the action/ act of the appellant-accused can be treated as abetment as defined u/s.107 of the Indian Penal Code, which instigated the deceased to commit suicide.
She would submit that dying declaration recorded by the Executive Magistrate as well as FIR recorded by the Police Officer, do not create any doubt that she was conscious about what is being recorded and how she was ill-treated by her husband. She would submit that the deceased had specifically stated that except husband, no other family members of the husband were used to harass her.
Page 9 of 16 R/CR.A/839/2014 CAV JUDGMENTBy taking me through the depositions of parents of the deceased, her brother and his wife, she would submit that prosecution was successful in establishing that there was mental torture by the husband since number of years and pursuant to which, she has taken extreme steps to commit suicide. She therefore would submit that the appeal may be dismissed.
She has relied upon the unreported decision rendered by Division Bench of this Court in the case of Tejumal Dayaldas Mulani (Sindhi) V/s. State of Gujarat rendered in Criminal Appeal No.334 of 2006 and would submit that the deceased wife was subjected to cruelty by the husband and there was a demand of dowry and accordingly the husband was convicted for the offence punishable u/s.306 of the Indian Penal Code and therefore, would submit that the appeal may be dismissed.
5. I have heard learned advocates appearing for the respective parties and perused the record and proceedings of the case. With a view to prove the case against the appellant - accused, the prosecution has examined 16 witnesses and has led the evidences in the form of oral as well as documentary evidence, which are as under :
- : Oral Evidences :-
Sr. Particulars Exh.
No.
1. Deposition of Dr.Kamlesh Jamnadas Patel 7
2. Deposition of Dr.Dhirajkumar Jagdishprasad 10
3. Deposition of Panch- Galalben Ramjibhai 16
4. Deposition of Panch- Dashrathbhai 18
Ganpatbhai
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R/CR.A/839/2014 CAV JUDGMENT
5 Deposition of ASI Mahendrasinh Kanubha 23
Zala
6 Deposition of witness Narotambhai 27
Naranbhai
7 Deposition of witness Dayarambhai 28
Naranbhai
8 Deposition of Executive Magistrate 29
Vashrambhai Visabhai Raval
9 Deposition of witness Jagdishbhai 32
Prabhubhai Makwana
10 Deposition of witness Sajjanben 33
Narottambhai
11 Deposition of witness Danabhai Amthabhai 34
Makwana
12 Deposition of witness Mahadevbhai 35
Karamsibhai
13 Deposition of witness Shankarbhai 36
Ramjibhai Jadav
14 Deposition of witness Ambarambhai 37
Prabhubhai
15 Deposition of PSO Ayubbhai Aadambhai 38
Vadgama
16 Deposition of Investigating Officer 41
Bharatsinh Chandubha Jadeja
- : Documentary Evidence : -
Sr. Particulars Exh.
No.
1 Certificate of injury of the deceased 8
2 Indoor case paper of the deceased 9
3 Police yadi written for PM of body of the 11
deceased
4 Copy of Inquest Panchnama 12
5 Death Certificate 13
6 Refer note of CJ Hospital 14
7 PM report 15
8 Inquest Panchnama 17
9 Panchnama of local place of offence 19
10 Arrest panchnama of the accused 20
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R/CR.A/839/2014 CAV JUDGMENT
11 Original complaint with FIR 24
12 Report to register offence 25
13 Copy of Police yadi written to Executive 26
Magistrate to record dying declaration
14 Police Yadi written to Executive Magistrate 30
to record dying declaration
15 Dying declaration of the deceased 31
16 Copy of Station Diary 39
17 Copy of Station Diary 40
18 Letter of sending Muddalmal to FSL 42
19 Receipt of FSL of receiving Muddamal 43
20 Letter of FSL regarding Muddamal 44
21 FSL Report regarding Muddamal 45
Charge at Exh-3 was framed against the appellant- accused for the offence punishable under sections 498(A), 329, 504 of the Indian Penal Code as well as for the offence punishable u/s.306 of the Indian Penal Code. The appellant has been acquitted from the offence punishable under sections 323 and 504 of the Indian Penal Code, for which, there was no appeal preferred by the State of Gujarat.
6. It is an undisputed fact that the marriage span of the appellant with the deceased was around 18 years and there are two sons out of the said wedlock.
7. It is an admitted position that the deceased along with appellant and two minor sons were residing separately from her in-laws. Unfortunate incident took place on 30/10/2013 at around 8 O'clock in the night hours. The deceased, in burn conditions, came to be admitted in the government Hospital wherein in her history, she has stated Page 12 of 16 R/CR.A/839/2014 CAV JUDGMENT that she was beaten by kick and fist blows by her husband and father-in-law, pursuant to which, she has committed suicide. Having received Yadi from the police officer, who was in the government hospital, Executive Magistrate Vashrambhai Visabhai Raval, PW-8, Exh-29, reached at the hospital and started recording dying declaration at about 22:53 hours and completed the same at about 23:17 hours. If the dying declaration at Exh-31 is perused, the deceased declared that the appellant, who is aged about 42 years, got married with the deceased before 18 years. The appellant is labourer and doing mesonary work. She is also doing the same type of work. She has further stated that she is residing separately from her in-laws since last more than 10 to 12 years. She further stated that when she has demanded money from her husband to bring some household articles, she was beaten by her husband by giving kick and fist blows. She therefore poured kerosene on herself and set ablaze. She further declared that she has taken this step of pouring kerosene and set ablaze, etc. pursuant to action of husband of beating herself and her son. She further stated that she was fed up with her husband for day to day quarrels. Subsequent thereto, FIR at Exh-24 came to be recorded by Mahendrasinh Kanubha Zala, PW-5, Exh-23, wherein she has declared the same things. She has further stated in the FIR that subsequent to incident of beating, she went into the room and closed the room and applied stopper from inside and committed suicide. She has further stated that on the date of incident, the appellant-husband asked the deceased to go to her parental home. Apart from the dying declaration recorded by the Executive Magistrate and FIR, it is prima facie established that she was tortured by the appellant-accused.
Page 13 of 16 R/CR.A/839/2014 CAV JUDGMENT8. Father of the deceased i.e. Jagdishbhai Prabhubhai, PW-9, Exh-32 has stated that at initial stage of marriage i.e. about for 6 to 7 years, marriage life between the husband and wife was smooth, however the dispute arose about money in connection with day to day expenses for running the family. Similar is the say of brother of the deceased and his wife. On scrutinizing the depositions of all witnesses, in my opinion, the prosecution was successful in establishing that the accused has committed an offence punishable under section 498(A) of the Indian Penal Code.
As far as charge under section 306 i.e abetment of suicide is concerned, as stated hereinabove, it appears that there was some dispute between the husband and wife about the household expenses. An act of appellant of daily quarreling with the deceased, pursuant to which, she has committed suicide, would not establish an offence punishable under section 306 of the Indian Penal Code. 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.
Abetment is defined under section 107 of the Indian Penal Code, which reads as under:
Page 14 of 16 R/CR.A/839/2014 CAV JUDGMENT107. 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.
Close scrutiny of dying declaration recorded before the Executive Magistrate and FIR at Exh-24, do not establish an offence of abetment since on the date of incident, there was no instigation on the part of the appellant. On the spur of the moment and having seen that her son was also beaten by her husband, she locked herself in the room and committed suicide.
9. In the case of Amalendu Pal alias Jhantu V/s. State of West Bengal reported in (2010)1 SCC 707, the Apex Court has differentiate with the offence punishable under section 498(A) and 306 of the Indian Penal Code. It has been held that in absence of any evidence, if there is no direct evidence to show that the appellant by his acts instigated or provoked the deceased to commit suicide, he cannot be convicted for the said offence. Similar are the facts of the present case.
Page 15 of 16 R/CR.A/839/2014 CAV JUDGMENT10. In the case of Gurcharan Singh (supra), by relying upon another decisions, it has been held that mental pressure or intentionally commit the person doing the things, in the present case, I do not find any instigation on the part of the appellant or instigate the deceased to commit suicide.
In the case of Gangula Mohan Reddy (supra);
Kishori Lal (supra) as well as in the unreported decision rendered by Division Bench of this Court in Tejumal Dayaldas Mulani (supra), facts are different than the facts of this case and therefore, these decisions are not applicable.
11. Having heard learned advocates appearing for the respective parties and considering the facts and circumstances of the case, this appeal is partly allowed. So far as conviction and sentence imposed by learned Sessions Judge, Surendranagar vide judgement and order dated 29/05/2014 in Sessions Case No.05/2014 for the offence punishable u/s.306 of the IPC is concerned, the same is hereby quashed and set aside. So far as conviction and sentence imposed by the learned Sessions Court u/s.498(A) of the IPC is concerned, the same is not required to be reduced since the deceased was continuously harassed by the appellant-accused for considerable long time. Bail bond, if any, stands cancelled. Registry to return R & P, if received, to the concerned Trial Court forthwith.
sd/-
[A.J.DESAI,J.] Ms.Kruti Shah, learned advocate for the appellant requests for time to surrender. Time to surrender is granted for three weeks, as prayed for. sd/-
[A.J.DESAI,J.] *dipti Page 16 of 16