Gujarat High Court
Koli vs State on 20 April, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
CR.A/928/1988 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 928 of 1988
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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KOLI
GOVINDBHAI SARDULBHAI & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
UNSERVED-EXPIRED
(N) for
Appellant(s) : 1,MR HARDIK S SONI for Appellant(s) : 2,
MR KL
PANDYA, APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 20/04/2010
ORAL
JUDGMENT
1. The present appeal is directed against the judgment and order passed in Special Case No. 65 of 1987, by the Additional Sessions Judge, Surendranagar, dated 29th October 1988 recording conviction of the Accused-1(A1) and Accused-2(A2), for the offences punishable under Sections 306 and 498-A of the IPC and also imposing sentence of Rigorous imprisonment for three years and fine of Rs.500/-, in default, rigorous imprisonment for three months. Similarly for the offence punishable under Section 498-A, the learned Judge imposed sentence on both the accused rigorous imprisonment for five years and fine of Rs.500/-, in default, rigorous imprisonment for six months. Both the sentences are ordered to run concurrently.
2. The facts of the case in brief are as under:
It is the case of the prosecution that the deceased complainant was married to the appellant-original accused No.3 and was residing with the in-laws-orig.accused Nos.1 and 2. It is the case of the prosecution that she had a daughter from the wed-lock, aged about 9 months at the time of the incident. It is alleged that the accused persons used to abuse her that she should go away at her parental house and used to cause harassment and was ill-treated. Therefore, on 14.7.1986, she had committed suicide and thereafter she was removed to the General Hospital, Rajkot. On the basis of her complaint, the offence came to be registered as FIR CR No.120 of 1986 at Chotila Police Station. After the investigation was over, the charge sheet was filed and the case was committed to the Court of Sessions. Thereafter, the learned Additional Sessions Judge, Surendranagar framed the charges against the accused persons and proceeded with the trial.
In order to bring home the charges, the prosecution has examined the documentary evidence as well as the charge sheet as referred to hereinafter.
After recording of the evidence of the prosecution was over, further statement of accused was recorded under Section 313 of the Code of Criminal Procedure.
3. After hearing the learned APP and the learned advocate for the defence, the Additional Sessions Judge, Surendranagar convicted the accused persons for the offences punishable under Sections 306 and 498-A of IPC (hereinafter referred to as 'IPC' for short) and sentenced them as stated hereinabove.
It is the said judgment and order which is assailed, inter alia, in the memo of the appeal, contending that the judgment and order is erroneous and the learned Judge has failed to appreciate the material on record and has failed to consider that the prosecution has failed to establish the charges levelled against the accused for the alleged offences.
4. Learned advocate Mr.Hardik Soni referred to the testimony of witnesses including the testimony of the complainant-father (PW.4-Exh.13) and submitted that he has turned hostile and he has not supported the case of prosecution. He has also referred to the testimony of one Mahendrasinh (PW.5), who was serving as Police Head Constable in the Police Chowki in Rajkot General Hospital who recorded the statement of the deceased and also recorded the complaint at Exh.17. He referred to the dying declaration at Exh.9 and the testimony of the Executive Magistrate (PW.1-Exh.7), who recorded the dying declaration. Learned advocate Mr.Soni referred to the testimony of this witness and the testimony of the complainant's-father (PW.4). He also referred to the testimony of the Executive Magistrate (PW.1-Exh.7) and submitted that his evidence cannot be believed as there is no corroboration. Moreover, he referred to the dying declaration at Exh.9 and submitted that even if we accept this on its face value, it only refers to the fact that there was some harassment, but there is no specific allegation about either dowry or even cruelty. It is merely stated that harassment is caused to her. Therefore, learned advocate Mr.Soni submitted that every harassment would not necessarily attract the offence under Sections 306 and 498-A of IPC. He submitted that it has to be established by the prosecution that such harassment was caused to drive her to commit suicide. Learned advocate Mr.Soni referred to the provisions of Section 306 of IPC and submitted that the ingredients for the offence are not fulfilled. Similarly, he referred to Section 498-A of IPC and submitted that there is no such incident or specific circumstance regarding harassment which can be termed as cruelty. Similarly, there is no whisper about the demand of dowry and he therefore, referring to Section 498-A of IPC emphasised that the provisions of said Section would not be attracted.
Learned advocate Mr.Soni has also referred to the testimony of the witnesses and submitted that there are contradictions as to the place of incident. For that purpose, he referred to the complaint at Exh.17, the testimony of the father of the complainant at Exh.13 and also the mother, at Exh.13. He submitted that the deceased has stated that the incident was occurred inside the house as it is evident from the complaint at Exh.17. He submitted that he has specifically stated that there was no quarrel between the deceased and her husband-accused No.3 even in the complaint. Further, Mr.Soni submitted that she has stated that she committed suicide by pouring kerosene on her body inside the house, whereas the panchnama of the scene of offence at Exh.21 reveals that she has ablazed herself inside the house. He, therefore, submitted that the learned Judge has failed to consider all these aspects. He submitted that the learned Judge has failed to appreciate the testimony of uncle-PW.3 as he has stated that he was giving fodder to the cattle, and when he saw deceased in ablazed condition, he rushed towards her and at that time, accused No.1 also came there with a water pot. He has also stated that they had taken her to the hospital. Therefore, learned advocate Mr.Soni submitted that this conduct is required to be considered which has not been considered by the learned Judge while appreciating the evidence. He further emphasised that PW.3-uncle has specifically stated that whenever deceased used to come to his house, she never complained and he used to go her house also and there was no quarrel.
Mr.Soni further submitted that the prosecution has failed to produce any independence witness and has examined only interested witnesses like father of complainant, uncle and mother. He submitted that even PW.3-uncle has not supported the prosecution case and the father has also turned hostile. He, therefore, submitted that the judgment and order regarding conviction on the basis of the dying declaration is erroneous and the Court below has failed to appreciate the testimony of the witnesses.
Learned advocate Mr.Soni referred to and relied upon a judgment of the Hon'ble Supreme Court reported in 2007 (0) GLHEL-SC 39413 (Hazarilal vs. State of Madhya Pradesh) and submitted that the Hon'ble Apex Court has observed that it has to be established that the victim was harassed before passing the order of conviction under Section 498-A and 306 of IPC. He has also relied upon another judgment of the Hon'ble Supreme Court reported in 2008 (0) GLHEL 41849 (Rajbabu v. State of Maadhya Pradesh) and submitted that the dying declaration may not be accepted on the face value and he submitted that the conviction was set aside. Similarly, learned advocate submitted that the deceased was hyper-sensitive and could have committed suicide. He further submitted that minor quarrel of the matrimonial life may not be treated as cruelty in the absence of evidence. He, therefore, submitted that the Court below committed an error while believing the complaint FIR at Exh.17 as well as the dying declaration at Exh.9. He submitted that when she gave the complaint, village people were gathered and she could have been tutored or considering the injuries, she may not be in a position to give the statement. Therefore, the dying declaration, in the absence of corroboration, could not have been relied upon for the purpose of conviction.
5. Learned APP Mr.K.L.Pandya referred to the FIR at Exh.17 and submitted that the witness has remained consistent stating that the deceased was harassed and she was asked to go away. He submitted that it is required to be noted that her marriage span was about eight years and she was driven away which could have caused tremendous pressure or mental agony driving her to commit suicide. He referred to the dying declaration at Exh.9 and submitted that she has categorically stated about the harassment caused to her by the in-laws. He also referred to the dying declaration before the Executive Magistrate PW.1 and stated that he has narrated in detail how he has recorded it and he has taken care to see as to whether she was in a fit state of mind to give the statement and he has also stated that he had taken care that nobody remained present. He has also referred to the testimony of PW.2 Doctor who was present and he has stated that though she was having pain, she was able to speak and able to give the statement and he had made endorsement with regard to the condition of the deceased. Learned APP, therefore, submitted that the medical evidence and the Executive Magistrate has supported about her physical condition that she was in a fit state of mind to give statement and when the Executive Magistrate has recorded the dying declaration, it can form the basis for conviction. He submitted that corroboration is not required in every case and therefore, the judgment and order recording conviction is just and proper. He also referred to the other discrepancy and submitted that the deceased would not have committed suicide leaving the daughter who is hardly 9 months' old and therefore that itself is suggestive that the harassment and cruelty was unbearable and she has committed suicide. He, therefore, submitted that the judgment and order may be maintained. He has relied upon a judgment of this Court reported in 1995(2) GLR 1285 (Aher Lakhman Bhura v. State of Gujarat) and the observations made in para 25 thereof.
6. In view of the rival submissions, it is required to be considered whether the impugned judgment calls for interference or not. The first aspect which is required to be considered is as to whether the impugned order may be sustained or not, or it needs any interference with or not.
From the perusal and scrutiny of the evidence on record, it is evident that the deceased has committed suicide. However, for recording conviction for the alleged offence, the necessary ingredients are required to be fulfilled from the evidence in the form of testimony of witnesses including PW.4-father and PW.3-uncle. It cannot be said that they have supported the prosecution case in any manner. PW.4-father has turned hostile and as it is accepted that the testimony of the hostile witness is also not required to be discarded totally but if such evidence is considered, he has not supported the prosecution case in any manner. The suggestion put to him with regard to any harassment, it has been denied. PW.3 uncle has also not supported the prosecution case. PW.5 is the Constable who has recorded the complaint of the deceased in the hospital and he had recorded the complaint at Exh.17. In his testimony, he has stated that when he recorded the complaint, he had asked PW.3-uncle to go out of the room and thereafter, he recorded the complaint at Exh.17. He had also sent the Yadi for recording the dying declaration with endorsement of the Doctor that she was conscious. Therefore, if the complaint Exh.17 is considered as it is on the face value, the deceased complainant has stated about the harassment caused to her which has led her to commit suicide. He has not referred to any specific incident or any harassment or cruelty in his complaint. The dying declaration which is recorded at Exh.9 also clearly suggests that she has replied to the question as to why she committed suicide and she has stated that due to the harassment, but has not stated anything with regard to any incident. The Executive Magistrate, in his testimony at Exh.7 has stated about her condition that she was conscious and in a fit state of mind to give declaration. He has also stated about the endorsement of the Doctor and also the fact that the dying declaration was recorded in presence of Doctor. He has also stated that when he recorded the dying declaration in the form of question and answer and has denied the suggestion that she was conscious and was able to give answer. He has also denied the specific suggestion as to why she has committed suicide. While replying these, he has also denied that he had not asked what was the harassment. Therefore, if he had asked about the harassment and if the deceased was able to answer properly, it could have been recorded which is not to be found in the dying declaration. The Executive Magistrate-PW.1 has not stated in his testimony also on this aspect. Therefore, if he had specifically asked her about cause for committing suicide and if the deceased was able to give declaration or statement, she should have stated something about the cause of the suicide and what was that harassment. This would clearly suggest that on one hand, the testimony of witnesses including the relatives have not supported the prosecution case whereas the dying declaration and the testimony of the Executive Magistrate and the Doctor suggest that she was in a fit condition to give the dying declaration and it has s been recorded. Therefore, the moot question is whether conviction could be based solely on the dying declaration which is stated to have been recorded by the Executive Magistrate when she was in a fit state of condition to give such statement. There is no quarrel about the dying declaration or the genuineness of the dying declaration. However, accepting the dying declaration and the testimony of the Executive Magistrate who recorded the dying declaration on the face value, it does not reflect about the harassment or any particular incident. It is in this background, one is required to consider the submissions made by learned advocate whether it would be offences where Sections 306 and 498-A of IPC could be attracted. The learned Sessions Judge while referring to this aspect in the judgment has discussed it. However, he has overlooked the fact that provisions of Section 113-A would be attracted provided the deceased had committed suicide within seven years of the marriage. In the present case, the span of marriage was eight years. Further, in Section 498-A, Explanation (a) provides for cruelty as to what would constitute cruelty and it explains any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman . Similarly, Explanation (b) provides for harassment of the woman where such harassment is with a view to ....... . Thus it is not mere suicide that would automatically attract Section 438-A particularly when the presumption under Section 113-A would not be attracted. Admittedly, there is no demand for dowry. There is no reference to any ill-treatment in the past. There is no evidence with regard to discord of the matrimonial relation which could have been revealed by testimony of the relatives including father and uncle. Therefore, in the absence of any such evidence either with regard to the demand for dowry or with regard to ill-treatment or even slightest evidence with regard to any past incident which could have compelled her for committing suicide is not there. Therefore, the dying declaration is accepted as genuine which is corroborated by the evidence of Executive Magistrate and the Doctor, would not reveal anything with regard to the ill-treatment or the harassment. Further, on one hand, there is dying declaration which is corroborated by the other evidence, on the other hand, the witness is including the family members like father and uncle who have not corroborated or supported the prosecution case on the aspect of harassment and ill treatment. The Court below has proceeded on the basis of relying upon the dying declaration that conviction could be based on the dying declaration referring to the presumption under Section 113 of the Evidence Act. It may be mentioned that presumption under Section 113 of the Evidence Act would not come into play as the span of marriage life is more than seven years which appears to be a misconception. Further, before the presumption could be made, the necessary ingredients for the alleged offence under Section 498-A are required to be fulfilled with regard to cruelty and ill treatment. In a given case, conviction can be solely based on the dying declaration even if there is no other evidence of cruelty, but in such circumstances, the dying declaration should be in such a form which throws light on the aspect of cruelty or the harassment which is clearly made out. Therefore, what is required to be considered is the dying declaration and the say of the deceased while giving the dying declaration on such aspect of harassment.
Moreover, apart from the provisions of Section 306 of IPC even for the offence under Section 498-A which provide for cruelty by the husband or the relative, this Section has been amended by Amendment Act of 1983. Provisions of Section 498-A has been added with a view to give a new dimension to the offence against female by the Legislature. As discussed above and referred to as to what would constitute cruelty has been provided by Explanation to Section 498-. The Legislature has provided what would constitute cruelty . It has been provided as discussed above, there has to be some material to establish that there was such a willful conduct of such a nature of cruelty which has led the deceased to commit suicide. Further, there may be the evidence or dying declaration inspiring such a confidence that any inference could be made with regard to the harassment. In any view of the matter, before the conviction could be recorded, the ingredients of Sections 306 and 498-A are required to be fulfilled. The basic constitution of Section 306 of IPC is suicidal death and the abetment thereof. Further, to attract such an offence under Section 306 of IPC, the intention of the accused to instigate and thereby abet any commission of the suicide is required to be established. Similarly, Section 498-A, cruelty is provided in this Section which is discussed hereinabove has to be established by material evidence with regard to the harassment. Therefore, as there is no evidence with regard to the demand or any kind of harassment to compel her to meet unlawful demand for the dowry. Therefore, as there is no evidence with regard to the demand or any kind of harassment compelling her to meet with unlawful demand of dowry, it would not be attracted. Similarly, for the offence under Section 306 the ingredients are required to be fulfilled and necessary ingredients for the abatement would be the instigation and again such an instigation will be willful. There is no such evidence on record. The Hon'ble Apex Court in the judgment reported in AIR 2008 SC 2108 (Sohan Raj Sharma v. State of Haryana) has very succinctly observed this aspect and has observed that the abetment involves a mental process of instigating a person or intentionally aiding that person in doing a thing.
In order to bring home the offence under Section 306 of IPC active role which can be described as an instigation is required to be established. From the material evidence on record, it cannot be said that there is any such evidence regarding instigation which would attract Section 306 of IPC.
Therefore, in view of the discussion made hereinabove, as it is not a case with regard to any harassment which would constitute cruelty coupled with the fact that the span of marriage is more than seven years, the offence is alleged cannot be said to have been established. In order to attract the presumption or the inference can be drawn would require that incident has to be within a span of seven years, whereas the span of marriage is more than seven years. Therefore also, the presumption or the inference on the basis of the dying declaration at Exh.9 cannot be made without any corroborative evidence with regard to the harassment and or cruelty.
Therefore, even if the dying declaration at Exh.9 is accepted at the face value, in the absence of any other corroborating evidence, conviction could not be recorded or sustained solely on the basis of dying declaration.
Therefore, in light of the discussion made hereinabove on scrutiny and appreciation of evidence, this Court is of the opinion that the appeal deserves to be allowed and it is accordingly allowed. The judgment and order passed by the Additional Sessions Judge, Surendranagar in Sessions Case No. 65 of 1997 for the offences punishable under Sections 306 and 498-A is hereby quashed and set aside. The appellant No.1-orig.accused has already died during the pendency of the appeal. The appellant No.2-orig.accused is hereby acquitted. Bail bonds, if any, shall stand cancelled. Fine paid, if any, shall be refunded to the appellant-accused.
(Rajesh H. Shukla, J.) Sreeram.
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