Dineshkumar Prabhashankar Bhatt vs State of Gujarat

Rajesh H. Shukla, J.—The present appeal is directed against the judgment and order passed in Sessions Case No. 123/94 dated 12.4.1996 by the learned Addl. Sessions Judge, Mehsana, recording the conviction of the appellant-accused for offence u/s 306 of IPC and imposing RI for 4 years and fine of Rs. 1,000/-, in default RI for 3 months and also recording conviction for offence u/s 498A of IPC and imposing sentence of RI for 1 year and fine of Rs. 500/-, in default RI for one month. Both the sentences were ordered to run concurrently.

The facts of the case, briefly summarised, are as follows:

2.1 It is the case of the prosecution that on 26.3.1994 the accused husband had come from Bhavnagar and there was a quarrel with regard to the deceased wife attending supervision work in the SSC examination and he used to have some doubt about her character and abused her. Therefore, at about 12 noon, the deceased poured kerosene and committed suicide. The accused husband, who was present in the house, tried to rescue her by encircling mattress along with one other Ganesh Punjiram Raval and taken her to the hospital. The deceased gave her complaint before the police at Exh. 38.

2.2 On the basis of the complaint given by the complainant, the offence came to be registered vide C.R. No. I-128/94 with Vijapur Police Station. After the investigation was over the charge-sheet was filed and as the offence was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the learned Addl. Sessions Judge, Mehsana, framed the charges at Exh. 10 for the offence u/s 306 and Section 498A of IPC and proceeded with the trial.

2.3 In order to bring home the charges levelled against the accused, the prosecution examined the witnesses and also produced documentary evidence, which shall be referred to as and when required.

2.4 After recording the evidence of the prosecution witness was over, the learned Addl. Sessions Judge recorded further statement of accused u/s 313 of Cr.P.C.. The defence has also examined defence witness, Ganesh Punjiram Raval.

2.5 After hearing the learned APP as well as the learned advocate for the defence, the learned Addl. Sessions Judge, Mehsana recorded the conviction of the accused husband for the offences u/s 306 and 498A of IPC and imposed the sentence as stated hereinabove.

It is this judgment and order which has been assailed on the grounds, inter alia, that the learned Addl. Sessions judge ought to have appreciated the dying declaration (DD), wherein she has stated that she committed suicide because of exchange of words/quarrel for her attending supervision work in the SSC examination. It is also contended that the learned Addl. Sessions Judge has failed to appreciate the material and evidence on record. It is contended that the learned Judge has failed to appreciate the medical evidence in the form of testimony of Dr. Surendra Sharma, PW-8, Exh. 28, and the correction in the DD where initially some words stated by the deceased "while preparing food" has been erased.

Learned Counsel Mr. Vijay Patel appearing for the appellant-accused referred to the testimony of witnesses including the testimony of PW-1 brother and the testimony of PW-2 & PW-3, who are the relatives. PW-3 is the sister of the deceased. Learned Counsel Mr. Patel referred to the testimony of PW-11, Exh. 34. Learned Counsel Mr Patel submitted that the Executive Magistrate has stated that he had obtained the endorsement of the doctor with regard to the condition of the patient. He has stated that the deceased was conscious and thereafter had recorded the DD, Exh. 36. Learned Counsel Mr. Patel submitted that in the cross-examination this witness has stated that initially the words "while preparing food" are written which have been erased suggesting that initially the deceased has stated about the fact that while preparing food the accident occurred. He has also referred to the testimony of PW-8, Dr. Surendra Sharma and submitted that in the cross-examination it has been accepted that rear back portion had not received burn injuries which would suggest that if the person gets injury by an accident, there may not be injuries on the back. He therefore submitted that this aspect has not been appreciated or considered by the learned Addl. Sessions Judge.

Learned Counsel Mr. Patel submitted that even if the DD is accepted as it is, she has clearly stated in reply to question No. 10 as to whether there was any harassment and she has stated "no" and further she has stated that previously there was such harassment. Learned Counsel Mr. Patel submitted that in this DD, Exh. 36, she has herself stated that there was a small quarrel with regard to her attending supervision work in the SSC examination and she committed suicide. Learned Counsel Mr Patel submitted that admittedly the mother-in-law or other in laws are not staying together and she was staying with her husband and daughter.

Learned Counsel Mr. Patel therefore submitted that considering this evidence on record, the first aspect which is required to be considered is that there is not an iota of evidence with regard to the alleged doubt or suspicion about her character which is referred to in the charge. He therefore submitted that though in the charge, Exh. 10, there is a reference about the alleged suspicion or doubt by the accused about her character, there is no evidence. For that purpose, he referred to the testimony of PW-1, 2 and 3 who are the relatives like brother, brother-in-law and sister. He submitted that they have not referred to any aspect about any kind of relationship or any incident with regard to such doubt about her character. Therefore, in the absence of any evidence, it cannot be believed.

Mr. Patel, learned Counsel for the appellant, submitted that therefore even if it is accepted that it was not an accidental death and she has committed suicide, still, the necessary ingredients for the alleged offence u/s 306 and 498A of IPC would not be attracted as the ingredients are not fulfilled. He submitted that the DD Exh. 36 refers to the quarrel with regard to the supervision work in the SSC examination and that was the basis for the incident that she committed suicide. He submitted that beyond this there is no evidence about any kind of harassment or cruelty. He further submitted that before Section 306 could be attracted, it has to be established that there was an intention of the accused to aid or instigate the deceased to commit suicide.

Similarly, for offence u/s 498A it is provided that the husband or relative of husband of a woman subjecting her to cruelty shall be punished. In the Explanation "cruelty" is defined as

(a) 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; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Therefore, learned Counsel Mr. Patel submitted that these ingredients are also not fulfilled as it does not transpire from this evidence that there was any demand or harassment for any demand. Similarly, there is no evidence with regard to harassment which can be termed as "cruelty" within the meaning of Section 498A of IPC.

Learned Counsel Mr. Patel further submitted that as a matter of fact the defence witness Mr. Ganesh Punjiram Raval in his testimony at Exh. 50 has stated that both the deceased and the accused husband had good relations and the deceased was working in the school where he was the principal and she has never suggested about any harassment to her. Learned Counsel Mr. Patel further submitted that PW-12, who had recorded the complaint, Exh. 38, given by the deceased has in his cross-examination admitted that during the investigation it has not been revealed that there is any previous history of quarrel between the two and after some intervention it was compromised. Therefore, there is no such history and the deceased herself in her DD, in response to question No. 10 whether any harassment is caused to her, she stated "no". Therefore, learned Counsel Mr. Patel submitted that the learned Addl. Sessions Judge has failed to appreciate on this aspect of the evidence and recorded the conviction erroneously.

Learned APP Mr. Pandya referred to the evidence including the testimony of PW-1, PW-2 and PW-3 at Exhs. 16, 17 & 18. He also referred to the testimony of PW-12 at Exh. 37 and submitted that he had recorded the complaint of the deceased and has clearly denied the suggestion that she received the injuries while preparing the food accidentally. He has stated that he had recorded the complaint at Exh. 38. Therefore, learned APP Mr. Pandya referred to the complaint, Exh. 38, and emphasised that the deceased herself in her complaint given before the police has clearly stated about the quarrel regarding her attending supervision work in the SSC examination at 10''o clock and she has also stated about the fact that the accused was doubting her and therefore at 12 noon she decided to commit suicide. He also referred to the DD and submitted that though the submission is made referring to col. 10 where she has stated "no", however, he again referred to the DD, Exh. 36 and referring to the same col. 10 he emphasised that she has further added that there was harassment earlier. He therefore submitted that it could be interpreted that there was harassment earlier which was mounted and when the particular quarrel took place, it became unbearable and she committed suicide. He therefore submitted that the offence u/s 306 will be attracted.

Learned APP Mr. Pandya further submitted that in any case the offence u/s 498A would be attracted. For that he referred to Section 498A and emphasised that if the woman is driven to commit suicide within the span of 7 years of marriage, presumption u/s 113A of the Evidence Act would be attracted. He, therefore, submitted that admittedly the marriage span is about 5 years and she has committed suicide which would attract the presumption that she has been driven to commit suicide due to such harassment or cruelty. He therefore submitted that an offence u/s 498A is clearly established and the impugned judgment and order may be sustained.

In view of rival submissions, it is required to be considered whether the impudent judgment and order calls for any interference or not.

The scrutiny of the evidence clearly suggests that though the charge at Exh. 10 refers to the alleged suspicion of the accused regarding the character of the deceased, there is not an iota of evidence. The testimony of PW-1, PW-2 and PW-3 at Exhs. 16, 17 17 18 though refers cursorily that there was some quarrel, there is no further evidence whatsoever on this aspect. Similarly, the complaint, Exh. 38, is given by the deceased herself, wherein also it is evident that the real cause for the suicide or the incident is the quarrel over her attending the work as a supervisor in the SSC examination. Though she has referred that the accused used to doubt and abuse, there is no evidence and in the DD, Exh. 36, she has only stated about the quarrel over the supervision work which she intended to attend. She has specifically stated that due to such quarrel she committed suicide. In her complaint at Exh. 38, she has also stated that the Executive Magistrate has recorded the DD and she has given it in her full conscious state of mind and the DD is proper. Therefore, it reveals that the very basis for the incident of suicide is the quarrel with regard to her attending the supervision work in the SSC examination. There is no evidence with regard to the past discord or matrimonial disharmony. PW-12, who had recorded the complaint at Exh. 38, has stated in his testimony at Exh. 37 that in course of the investigation it was not revealed that there was any harassment or that she was driven to commit suicide or thereafter any kind of compromise was arrived at with the intervention of third parties. He has stated that no such thing has been revealed with regard to the past quarrel or discord. This would suggest that there was no history of past quarrel or discord coupled with the fact that her in laws are residing separately. Therefore, as stated by the deceased in her complaint, Exh. 38 and her DD, Exh. 36, it was the quarrel over her attending the supervision work in the SSC examination which led to the incident.

The moot question, therefore, is whether the offence u/s 306 and 498A would be attracted. It is well accepted that before the offence u/s 306 could be attracted, necessary ingredients for the offence have to be established regarding abetment or instigation. It is also required to be established that the accused had intentionally induced the deceased to commit suicide. The Hon''ble Apex Court has also, referring to this aspect, observed that there has to be some evidence with regard to such instigation which can be said to have led her to commit suicide.

Moreover, it is also required to be appreciated that the abetment involves a mental process of instigating a person and some active role for such instigation is required to be established before the charge u/s 306 could be attracted. In the present case, the deceased herself has stated in her complaint, Exh. 38, that she was conscious when her DD was recorded and whatever is recorded in DD, Exh. 36, is correct. Therefore, on a closer scrutiny of the DD, Exh. 36, she has clearly stated that there was a general quarrel over her attending the supervision work in the SSC examination and thereafter as she felt bad, she committed suicide. Further, in response to question No. 10 specifically referring to whether there is any cruelty or harassment and she has stated "no". At the same time she has stated that previously there was. Now, if it is accepted as it is, it would on the contrary suggest that there was harassment earlier but not at present. Therefore, the submission made by learned APP Mr. Pandya, much emphasising on this aspect that previously there was harassment which is mounted, cannot be accepted. On the contrary, when she has specifically stated "no" about the harassment and she has stated that earlier there was harassment, it would imply that it was so earlier, but at present there is no such harassment. Admittedly, there is no evidence with regard to any past history of quarrel or matrimonial discord. Therefore, in the absence of any such evidence, the offence u/s 306 would not be attracted.

Similarly, to attract an offence u/s 498A, necessary ingredients are required to be fulfilled as stated hereinabove. The provisions of Section 498A provide for cruelty by husband or relative of the husband and it provides that if the woman is subjected to cruelty, shall be punished with imprisonment which may extend to three years and shall also be liable to fine The Explanation refers to cruelty and provides that "for the purpose of this section, "cruelty" means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide ....

(b) harassment of the woman where such harassment is with a view...to meet any unlawful demand for property....

Thus, there has to be such a conduct which is of such a nature as is likely to drive a woman to commit suicide. There is no such evidence brought on record to show the type of harassment of such a nature that she was compelled to commit suicide and which would constitute cruelty as discussed above. Similarly, Clause (b) would not be relevant as, admittedly, there is no evidence with regard to demand for dowry. In fact, it is not even the case of the prosecution with regard to any demand for dowry or property. Therefore, from this material and evidence on record, though the deceased has committed suicide, it cannot be said that it was a case of any such harassment amounting to cruelty or the accused has instigated or abetted in the commission of the suicide. The learned Addl. Sessions Judge has misdirected in appreciation of this evidence.

Similarly, the contention with regard to presumption made by the learned APP is misconceived. The presumption u/s 113A of the Evidence Act would be attracted provided the ingredients for the offences are fulfilled prima facie from the material and evidence on record. In the facts of the case, as discussed above, such ingredients for the offence are not fulfilled and therefore, merely because suicide is committed, without any further evidence on the aspect of cruelty or harassment, such presumption cannot be readily made. It is required to be appreciated that not only the evidence of the prosecution as discussed above has failed to establish any kind of harassment which could be termed as cruelty, but the defence witness has also suggested about the cordial relations. Further, the conduct of the accused is required to be considered. Admittedly, as stated in the complaint by the deceased, the husband had tried to rescue her, taken her to the hospital and as it was suggested by the doctor, she was taken to the Civil Hospital at Ahmedabad.

Therefore, from this evidence it is required to be considered that though the deceased has committed suicide, whether there is evidence to attract and sustain conviction for offence u/s 306 and 498A of IPC. The deceased has committed suicide. However, before the conviction could be sustained, there has to be evidence with regard to the harassment amounting to cruelty and also instigation or abetment for the suicide. As there is no such evidence, the conviction cannot be sustained.

Therefore, in light of the discussion made hereinabove, the impugned judgment order recording conviction of the accused for offences u/s 306 and 498A of IPC cannot be sustained and it requires to be quashed and set aside.

Accordingly, the present appeal stands allowed. The impugned judgment and order recording conviction of the appellant-accused u/s 306 and 498A of IPC passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No. 123 of 1994 dated 12.4.1996 is quashed and set aside. The appellant-accused is ordered to be set at liberty, if his presence is not required in any other case. Bail bond, if any, shall stand cancelled. The fine paid, if any, is ordered to be refunded.