Gujarat High Court Vikaramsinh vs Unknown on 12 April, 2010Author: Rajesh H.Shukla,&Nbsp;
Gujarat High Court Case Information System
CR.A/5141997/1997 1/ 31 JUDGMENT
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL No. 514 of 1997
Approval and Signature:
MR.JUSTICE RAJESH H.SHUKLA
Reporters of Local Papers may be allowed to see the judgment ?
be referred to the Reporter or not ?
their Lordships wish to see the fair copy of the judgment ?
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
it is to be circulated to the civil judge ?
JUJARSINH VAGHELA & 2 – Appellant(s)
OF GUJARAT – Opponent(s)
========================================= Appearance :
SHAH for MR KB ANANDJIWALA for Appellant(s): 1 – 3.
MR. A.J.DESAI, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1,
MR.JUSTICE RAJESH H.SHUKLA
present appeal is directed against the judgment and order passed by the learned Additional Sessions Court, Sabarkantha at Himatnagar in Sessions Case No. 23 of 1994 dated 9.5.1997 recording acquittal of Accused Nos.1 to 5 for the offence under Sections 302 and 304B of Indian Penal Code. However, the learned Additional Sessions Judge has recorded conviction of the Accused Nos.1, 2 and 4 for the offence under Sections 498A and 306 IPC and also imposed sentences as stated in detail in the impugned order.
facts of the case briefly summarized are as follows:
is the case of the prosecution that the daughter of the complainant uncle has been married to Accused No.1 Vikramsinh Gujarsinh Vaghela ( A-1 ), and after one year, she was ill-treated, and the demand for money and dowry was made, for which A-1 had also written some letters. It is also alleged that the complainant would give some money and after arriving at some understanding, he would try to save the matrimonial life of the deceased daughter. It is also stated that on 6.3.1993, the deceased had come to her parental house, and when the complainant went to his brother’s house, the deceased started weeping stating that a demand for buffalo has been made by the accused persons, and therefore, she has stated that they may send the buffalo and also Rs.10,000/- within 2-3 days. Thereupon the complainant uncle is said to have explained her that they would send the buffalo within 2-4 days and also Rs.10,000/-. Thereafter the complainant uncle and others gone to drop her at her matrimonial house and also informed her in-laws that the buffalo would be send within 2-4 days. It is also stated that A-1 had demanded Rs.10,000/- stating that he does not have buffalo, but he had promised to give within 2-4 days. After about 4 days, the message came that the deceased has burnt at village Ambaigada and this information was received on the basis of the telephone received at the house of one Karansinh. The message was received by the wife of Karansinh – Dasuba, who in turn informed the parents and the complainant. On the basis of this, the complaint was registered for the alleged offences under Sections 302, 304B, 498A and 306 read with Section 114 of IPC.
the basis of the complaint given by the complainant, the offences came to be registered. After the investigation was over, the charge sheet was filed, and as the offences were triable exclusively by the Court of Sessions, it was committed to the Court of Sessions. Thereafter, the learned Additional Sessions Judge, Sabarkantha at Himatnagar framed charges levelled against the accused persons for the alleged offences under Sections 302, 304B, as well as 498A read with Section 114 of IPC.
order to bring home the charges levelled against the accused persons, the prosecution has examined the witnesses as narrated in detail in the judgment. The prosecution has also produced the documentary evidence, which shall be referred to in the judgment as and when required.
recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded the further statement of the accused persons under Section 313 of Cr.PC. In the further statement, A-1 has stated that, the deceased has committed a suicide or whether it was an accident, he does not know. The other accused persons had stated the same way.
hearing the learned Public Prosecutor as well as learned advocate for the defence, learned Additional Sessions Judge acquitted A-3 and A-4 for all the charges and also acquitted A-1, A-2 and A-4 for the offence under Sections 302 and 304B. The learned Additional Sessions Judge has however recorded conviction of A-1, A-2 and A-4 for the offence under Sections 498A read with Section 306 and 114 IPC and sentenced them as stated in the judgment.
is this judgment and order which has been assailed on the ground inter alia that the conviction of A-1, A-2 and A-4 for the alleged offence has been recorded erroneously and the learned Judge has failed to appreciate that there was no charge framed for the offence under Section 306 with regard to abetment. For that purpose, learned advocate Mr. Rishabh Shah for Mr. K.B.Anandjiwala for the Appellants accused persons referred to the charge at exh.4 and submitted that the trial had proceeded on the basis that the charge was for the offence under Section 302, 304B and 498A, and the conviction could not have been recorded for the alleged offence under Section 306 in the absence of any specific charge. Learned advocate Mr. Shah submitted that as no opportunity was given to the accused persons, to deny and contest for such charge under Section 306, the conviction could not have been recorded. He emphasized and submitted that the charge for offence under Section 306 is separate and distinct for the offence under Section 498A. Learned advocate Mr. Shah referred to Section 464 which referred to Effect of omission to frame, or absence of, or error in, charge. . Referring to this, learned advocate Mr. Shah submitted that the Court has to examine whether there is any failure of justice because of such irregularity or defect in the charge. He therefore, submitted that since the offence under Section 306 is a separate and distinct offence, the opportunity cannot be said to have been afforded to the accused persons to deny such charges. Therefore, conviction could not have been recorded. He also submitted that the State has not preferred any appeal against the acquittal of the present accused persons qua the offence under Sections 302 and 304B. Therefore, he emphasized and submitted that in the absence of charge and any opportunity to defend, at the most the conviction could be sustained for the offence under Section 498A, and as the accused persons have substantially undergone sentence of 3 years, the present Appeal may be allowed qua conviction under Section 306 and the sentence awarded may be quashed and set aside.
advocate Mr. Shah also referred to the judgment of the Hon’ble Apex Court in case of Shamnsaheb
M. Multtani v. State of Karnataka, reported in AIR
2001 SC 921,
and submitted that as observed in this judgment, when the opportunity to defend the charge is not provided, the conviction cannot be sustained.
to the observations in this judgment, learned advocate Mr. Shah has emphasized that the offence under Section 306 cannot be said to be a minor offence as it is a separate and distinct offence. Therefore, referring to Section 222(1) of the Code, he submitted that though it provides that, when a person is
with an offence consisting of several particulars, he may be convicted of the minor offence, though he was not charged with it. However, reading Section 221 and 222, it would be evident that it could not be for a separate offence. He referred to the observations in paragraph 21, wherein the Hon’ble Apex Court has quoted the earlier judgment reported in AIR
1997 SC 3233;
is true that Section 222, Cr.P.C. Entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306, I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302, I.P.C. within the meaning of Section 222 Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302, I.P.C. is homicidal death, those of Section 306 I.P.C. are suicidal death and abetment thereof.
advocate Mr. Rishabh Shah also submitted that even on merits, the learned Judge has failed to appreciate the material and evidence on record and has also failed to appreciate and consider that the prosecution has failed to establish the charges levelled against the accused persons for the alleged offences. For that purpose he referred to the testimony of the complainant uncle at exh.47 and submitted that it is not corroborated by the testimony of PW-3 – father at exh.51. He also referred to the the testimony of PW-4 Executive Magistrate, who recorded the dying declaration at exh.54 and submitted that, even if the dying declaration, which is not found reliable by the Sessions Court, is considered, there is nothing against A-2 (father-in-law). He therefore strenuously submitted that what has been stated in the dying declaration is with regard to A-1 and A-4. However, he referred to the dying declaration as well as testimony of PW-4 at exh.52 and submitted that the police and other people were there when the dying declaration was recorded. Further, it is also stated that she had extensive burn injuries and she was having pain, and therefore, cannot be said to be in fit state of mind, which is also discussed by the Sessions Court.
He therefore submitted that it has also been admitted in cross-examination that she was having extensive burn injuries and he would repeatedly asked the questions. Learned advocate Mr. Shah therefore submitted that the dying declaration has not been found to be reliable, and is therefore not relied upon, and therefore, the accused persons have been acquitted of the charges for the offence under Section 302 of IPC. Similarly, as discussed in the judgment, there is no corroboration to the testimony of the complainant at exh.47 regarding the demand of dowry. Learned advocate Mr. Shah submitted that, therefore, what remains is the charges levelled with regard to harassment and cruelty under Section 498A. He submitted that whether in the facts and circumstances and in light of the evidence on record, the said alleged offence can be said to have been proved or established beyond reasonable doubt. He emphasized regarding testimony of the defence witness at exh.147 that he was present and he was an eye witness to the incident, and considering this aspect, the charges for offence under Section 302 are not accepted or believed by the Sessions Court, as it was stated by the witness that, she had set her on fire and on hearing her shouts, he had rushed there. Learned advocate Mr. Shah strenuously submitted that the conduct of A-1 as stated by this witness is that he rushed to the place of incident and tried to rescue / save the deceased by pouring water and covering
her with the cloth. He has also stated that he had thereafter telephoned to one Devisinh at Khed Brahma. Learned advocate Mr. Shah therefore submitted that even the prosecution case is that the message was received from one Devisinh and he has narrated about the incident as a eye witness and it is on the basis of this testimony of the defence witness, the charges for offence under Section 302 have not been accepted nor the charges for offence under Section 304 have been accepted or believed by the trial Court. However, for the alleged constant harassment and / or the cruelty whether the ingredients for the offence under Section 498A can be said to have been established, is required to be considered. Learned advocate Mr. Shah submitted that, every harassment or quarrel and discord in the matrimonial life , need not be accepted as a cruelty. He referred to Section 498A and submitted that it should be such a harassment, which would lead the person to commit suicide. He referred to and relied upon the judgment of the Hon’ble Apex Court in case of Ramesh
Kumar v. State of Chhattisgarh (2001) 9 SCC 618, and referred to the provisions of Section 306. He submitted that for attracting the offence under Section 306, the ingredients are required to be fulfilled and there has to be some incident which has the proximate cause with the ultimate suicide committed by the deceased. Learned
advocate Mr. Shah strenuously submitted that as there is no such evidence brought on record, the offence under Section 306 cannot be said to have been established or proved beyond reasonable doubt, and the learned Sessions Court has committed an error in recording the conviction under Section 306 IPC when there was not even a charge for such offence. Learned advocate Mr. Shah also submitted that in this judgment also it has been observed that merely because the accused is found guilty under Section 498A, he should not necessarily be held guilty under Section 306 on the basis of the same evidence. Referring to this aspect, he has emphasized that the facts of the present case are required to be appreciated that the allegations for dowry have not been believed or accepted by the trial Court, and when there is no evidence with regard to harassment or cruelty except general allegations, there is no material or evidence to attract offence under Section 306. Therefore, in the absence of charge under Section 306, the conviction could not have recorded on the basis of the same evidence. Therefore, learned advocate Mr. Shah strenuously submitted that even if the conviction under Section 498A is maintained, the conviction under Section 306 is required to be quashed and set aside, and accordingly, the sentence may be substituted or modified.
advocate Mr. Shah has also referred to the judgment of the Hon’ble Apex Court in case of Dalbir
Singh v. State of U.P.
2004 AIR SCW 2119
and submitted that while considering Section 464 with regard to irregularity or defect of the charge, the Hon’ble Apex Court has considered that, what is required to be considered is, the basic ingredients for the offence under Section 306 are required to be established, and in the absence of charge and any other evidence, the conviction recorded by the trial Court is erroneous. He referred to the observations made in this regard by the Hon’ble Apex Court, and again referring to the provisions of Section 221 and 222, has submitted that it has been also discussed as regards the irregularity in the charge. However, he submitted that the offence under Section 306 is a separate and distinct offence, and therefore, sufficient opportunity cannot be said to have been provided to the accused persons to defend the charge.
advocate Mr. Shah has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of Sanju alias Sanjay Singh
Sengar v. State of Madhya Pradesh, AIR 2002 SC 1998
and submitted that in that case, there was a quarrel immediately before the incident where the husband is said to have stated go and die and inspite of such situation, the Hon’ble Apex Court, considering the provisions of Section 306 and 107 regarding abetment of suicide, has submitted that, it would be appreciated as it has been observed that a word uttered in fit of anger or emotion without intending
the consequences to actually follow, cannot be said to be instigation. He
therefore submitted that the presence of mens rea is necessary to constitute that there is no such evidence suggesting any such intention, the ingredients for the offence under Section 306 cannot be said to have been fulfilled and the offence cannot be said to have been established and the learned Sessions Judge has recorded the conviction erroneously and has failed to appreciate the material and evidence on record.
APP Mr. A.J.Desai submitted that there is no appeal against the acquittal qua offence under Section 302 and 304B. However, still, the conviction under Section 306 could be maintained as the accused persons have sufficient opportunity to meet with the charges, and mere omission to mention Section 306 in the charge would not be fatal and it cannot be said to be a irregularity which has affected the case of the prosecution or the defence in any manner. He submitted that the
accused persons had the sufficient opportunity to meet with this, and in fact, the initial charge was for the offence under Section 302 IPC. However, when the dying declaration is not found to be reliable, and the defence witnesses, which have been examined, have been relied upon stating that she committed a suicide. Therefore, the fact remains that the deceased committed a suicide at the matrimonial house alongwith her minor daughter, would itself be sufficient to appreciate
about the nature of harassment and the cruelty which became unbearable. He referred to the evidence, particularly the testimony of the complainant-uncle at exh.47 and the father, and submitted that it refers to constant harassment, and infact, though the demand with regard to dowry has not been believed or accepted inspite of letters etc., the fact remains that there was some harassment. Learned APP submitted that as the appeal against the acquittal qua the offence under Sections 302 and 304B has not been preferred, he may not press the case any higher but the totality of the evidence coupled with the fact that even the Sessions Court has also recorded the conviction of the accused persons for offence under Section 498A as well as 306 IPC, would be just and proper, and the present appeal may not be entertained. He also referred to Section 464 with regard to, as to what could be the effect with regard to defect and irregularity for the charge and submitted that there has been a
failure of justice or whether sufficient opportunity has not been provided, which could cause prejudice to the rights of the accused. He referred to the further statements and submitted that the accused persons themselves have stated with regard to the suicide as it is stated that whether she has committed a suicide or it is an accident, they cannot say. Learned APP strenuously submitted that it was not a case of any accident, it is totally ruled out, then admittedly it is a suicide
even according to the defence witness, who is believed by the trial Court while considering the charges for offence under Section 302. Therefore, once it is accepted eve as per the version of the defence that it was a suicide and considering the testimony of other witness and the other material evidence on record, it cannot be said that the conviction of the accused persons for the offence under Section 306 is erroneous while confirming the conviction under Section 498A. Learned APP therefore strenuously submitted that mere defect or mistake of non-mentioning Section 306 in the charge itself would not be sufficient to give any benefit to the accused persons.
APP referred to the judgment reported in case of Dalbir Singh v. State of U.P. (supra)
and submitted that in that case also, on the contrary, the Hon’ble Apex Court has stated that if basic ingredients for the offence under Section 306 are established in order to substantiate the charges for Section
498A, conviction could be maintained even if there is no specific charge under Section 306. Referring to that judgment he has stated that there was a demand of colour T.V., scooter and money, and ultimately, the incident has happened and the conviction was upheld for offence under Section 306 read with Section 498A. Therefore, learned APP Mr. A.J.Desai submitted that the judgment and order recording conviction for offence under Sections 306 and 498A is just and proper,
and the appeal may be dismissed.
view of the rival submissions made by both the sides and on appreciation and scrutiny of the material and evidence on record, it is required to be considered whether the impugned judgment and order passed by the trial Court calls for any interference by this Court.
this purpose, the first aspect which has been much emphasized by learned advocate Mr. Shah for the Appellants – accused persons that there was no specific charge for the offence under Section 306, and therefore, the judgment and order recording conviction for the said offence under Section 306 is erroneous, is required to be considered. For that purpose, a bare perusal of Section 464 would make it clear that it provides with regard to, Effect of omission to frame, or absence of, or error in, charge. and it clearly provides that no sentence or conviction or finding recorded by the court shall be deemed to be invalid merely on the ground that no charge was
framed or there was any omission or error, irregularity in the charge. The emphasis given by the learned advocate for the appellants is required to be considered as to whether there is any failure of justice, whether the accused have been denied any opportunity to defend properly in compliance with the concept of fair trial. It is required to be mentioned that, as stated in this Section itself that the proviso make it clear that it is only if the court is of the opinion that in the facts of the case no valid charge could be preferred against the accused inspite of the fact proved itself qua the conviction. Therefore, the moot question is whether on the basis of material and evidence on record, it could be said that valid charge could have been preferred for offence under Section 306. A reference can also be made to Sections 221 and 222, which is also discussed elaborately in the pronouncement of the Hon’ble Apex Court. The submissions made by learned advocate that the offence under Section 306 is a separate and distinct, it cannot be said to be a minor, is required to be considered. There is no quarrel that Section 306 is itself a separate offence and may not be a minor offence, but while appreciating the evidence and considering the guilt of the accused on the basis of the material and evidence, the totality of the evidence and material is required to be considered to appreciate whether once the charge for offence under Section 498 is established with regard to harassment and guilt, can the same conduct of the accused persons be said to be responsible for the suicide. It is this aspect which is required to be considered in the background of facts and material evidence on record.
the reliance has been placed by learned advocate Mr. Shah on the judgment of the Hon’ble Apex Court in case of Dalbir Singh v. State of U.P. (supra),
in fact the Hon’ble Apex Court has clearly referred to this aspect and has on the contrary
analysing the provisions of Ss. 225, 232, 535 and 537 of Code of Criminal Procedure, 1908 which correspond to Ss. 215, 464(2), 464 and 465 of 1973 Coded, the Court held as under in para 44 of the report:
‘Now, as we have
said, Ss. 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possible arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that ‘whatever’ the irregularity it is not to be regarded as fatal unless there is prejudice.
is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejuice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whetehr the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
If all these
elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.
it is evident from the reading of Section 464 that no finding or order of the competent Court shall be deemed to be invalid merely on the ground that the charge was not framed or there was any irregularity in the charge. The proviso only lays down with regard to the discretion of the Court if it is of the opinion that from the facts and material on record no valid charge could be preferred, then only it can quash the conviction. Therefore, as analyzed by the Hon’ble Court in case of Dalbir Singh v. State of U.P. (supra),
the ultimate purpose is to see that if such irregularity is not causing any prejudice and he had full and fair chance of defending himself even if such charge is not mentioned specifically, it would not cause any prejudice, and therefore, there is no denial to fair trail. The aforesaid observation again emphasize on the aspect of balancing the right of the State and protecting the society in general and also protecting the individual accused from any unfair treatment or the harassment. The ultimate object of the court is to ensure that the accused get full and fair trial with well established principles of natural justice, and if there is substantial compliance of rules of natural justice providing a fair opportunity and fair trial, then the trial would not vitiate because of any such irregularity. The Hon’ble Apex Court in the aforesaid judgment has also observed:
order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him where explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu (supra) was
not correctly decided as it purports to lay down as a principle of law that where the accused is charged under S.302, I.P.C., he cannot be convicted for the offence under S.306, I.P.C.
A useful reference can
also be made to the judgment of this Court in case of Tejumal Dayaldas Mulani (Sindhi) v. State of Gujarat, 2008 (2) GLR 953, where also, in similar charges for offence under Section 304B and 306 even though there was some irregularity in the charge, the conviction for the offence under Section 304B and 306 was confirmed. There is a reference to this aspect with regard to defect in charge and it has been specifically observed that, the mere omission on the part of trial Judge to mention of Section 306 with 498-A, I.P.C., does not preclude the Court from convicting the accused for the said offence when found proved . Further, it has also been observed that for offence under Section 498A, the charge was framed and it was also mentioned that the accused had subjected the deceased to such cruelty and harassment as to drive her to commit suicide, and therefore, provisions of Section 221 of Cr.PC take care of such a situation and safeguard the powers of the criminal Court to convict an accused for an offence for which may not have been specifically charged though on facts and evidence the charge is proved. Section 221(2) of Cr.P.C. Provide:
(2) If in such a
case the accused is charged with one offence, an it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-sec. (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
The submissions made by
learned advocate Mr. Shah referring to the judgment of the Hon’ble Apex reported in case of Shamnsaheb M. Multtani v. State of Karnataka (supra) also do not support his submissions. It is required to be appreciated that the Hon’ble Apex Court in this very judgment in paragraphs 29 and 30 has observed:
this stage, we may note the difference in the legal position between the said offence and Section 306, I.P.C. which was merely an offence of abetment of suicide earlier. The section remained in the statute book without any practical use till 1983. But by the introduction of Section 113-A in the Evidence Act the said offence under Section 306, I.P.C. has acquired wider dimensions and has become a serious marriage-related offence. Section 113-A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death the Court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc. When the law says that the Court may presume the fact, it is discretionary on the part of the Court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the Court to act on the presumption the accused can persuade the Court against drawing a presumption adverse to him.
the peculiar situation in respect of an offence under Section 304-B, I.P.C. as discernible from the distinction pointed out above in respect of the offence under Section 306, I.P.C. is this: Under the former the Court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the Court is bound to act on it.
A similar reliance is
placed on the judgment of the Hon’ble Apex Court in case of Ramesh Kumar v. State of Chhattisgarh (supra) much emphasizing that merely because the accused is found guilty under Section 498A he should not necessarily be held to be guilty for offence under Section 306 on the basis of the same evidence, is required to be appreciated. Again, the Hon’ble Apex Court has referred to the provisions of Evidence Act and the presumption to be drawn based on the evidence. The Hon’ble Apex Court has, while considering the ingredients for offence under Section 306, I.P.C. alongwith Section 107 has clearly referred to the Criminal Law (Second) Amendment Act, 1983, observing that such an amendment has been brought w.e.f. 26.12.1983 to meet the social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home. However, still it cannot be lost sight of the fact that the presumption is intended to operate against the accused in the field of criminal law. Therefore, again referring to Section 113A, care has been taken that the accused is not prejudice. At the same time, in this judgment the Hon’ble Apex Court in paragraph 22 has also observed:
498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. (emphasis supplied)
A useful reference can
also be made to the judgment of the Hon’ble Apex Court in case of K.Prema S. Rao and another v. Yadla Srinivasa Rao and others, AIR 2003 SC 11. Again referring to Section 498-A and 306 IPC analyzing the same provisions, the Hon’ble Apex Court has observed negativing the same contention raised in the present case that in the absence of specific charge framed against the accused under Section 306, accused cannot be convicted under said Section and the Court had observed referring to the fact that though the charge under Section 306 was not framed, but all the facts and ingredients constituting the offence were mentioned in the statement of charge framed under Section 498A and again resorting to Section 221 has clearly observed that the conviction under Section 306 could be sustained.
A useful reference can
also be made to the judgment of the Hon’ble Apex Court in case of Randhir Singh And Another v. State of Punjab, (2004) 13 SCC 129, where again the Hon’ble Apex Court has referred to the ingredients for the offence under Section 306 regarding abetment of suicide together with Section 304B and 498A of IPC and confirming the conviction under Section 306 has also observed:
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 is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
in light of this settled legal position, the evidence and material, and the facts of the present case is required to be appreciated. As it transpires from the discussion in the impugned judgment and order recorded by the Sessions Court, the charge for offence under Section 302 is not accepted more particularly in light of the testimony of the defence witness, who has stated to be an eyewitness and who has stated that the deceased had set her on fire and died with the small daughter. There is no enhancement appeal for offence under Section 302. Be that as it may the fact remains that the Sessions Court has recorded conviction for the offence under Sections 306 and 498A. The Sessions Court has discussed in the judgment for not relying on the dying declaration, which is also not supported by proper justification. It is in background of these aspects while considering the present Appeal and the submissions canvassed by learned Advocate much emphasizing that the offence under Section 306 is not attracted at all and also the offence under Section 498 would not be attracted, is required to be appreciated. The testimony of PW-1 at Exh.47 clearly suggest about the constant harassment and the demand. He has stated that there was often demand made for money or some articles, for which even the letters have been addressed. This witness has specifically stated as to what has transpired and the deceased having stated that the demand has been made for buffalo and money. Further, he has stated that the demand of Rs.10,000/- by A-1. There is a reference to the letters also. This has been corroborated by the testimony of PW-3 (father). He has also corroborated the testimony of PW-1 on the aspect of demand and the
letters which are produced at Exh.101 to 106. He has also stated that when the deceased has delivered a baby girl, according to the custom they had also performed jiyana ceremony. He has also stated about the deceased having stated to him when she was lying in the cot as to what had transpired, which could be considered to be a oral dying declaration and which could have corroborated a dying declaration. However, as stated above, the learned Sessions Judge has not believed without any justification the dying declaration and there is no enhancement Appeal for acquittal under Section 302. At the same time, the testimony of PW-1 and PW-3 is sufficient to establish the charges for the offence under Section 306. The letters are also produced at Exh. 101 to 106 as it is stated by the I.O. in his testimony at Exh.82. The evidence of this witness coupled with the documents / letters at Exh.101 to 106 supports the prosecution case with regard to the demand and the harassment. Therefore, in light of the discussions made hereinabove, particularly for the offence under Section 306, it is required to be considered whether the ingredients for the offence are substantiated or not. It involves mental process of instigating a person or intentionally aiding that person in doing of a thing. It is a mental process, and as discussed above, since there was a constant demand and harassment, the deceased has been put to a situation where she is left with no option but to commit suicide. She is said to have informed PW-1 and PW-3. PW-1 and PW-3 have also stated in their testimony, and it is in these circumstances, when a situation is created, which is unbearable, the victim has no option but to commit suicide. It is also required to be noted that normally the woman like victim with a small child would think twice before committing suicide and in any case would not set on fire the small child. It only reflects the degree of pressure or the mental agony which she was undergoing and in that state of mind she is said to have committed suicide. It is required to be mentioned that even in the further statement under Section 313 of Cr.P.C.also the accused have admitted about the suicide being committed by the deceased. In such circumstances, as observed by the Hon’ble Court in case of Raman Kumar
v/s State of Punjab, JT 2009 (8) SC 422, wherein the Hon’ble Apex Court has referred to the scope of Section 304(b) and presumption under Section 113(b) of the Evidence Act and has observed:
has to rule out the possibility of natural or accidental death so as to bring it within the purview of ‘death occurring otherwise than in normal circumstances.
the facts of the present case such possibility is ruled out and when such a suicide has been committed, the basic constituent of the offence under Section 306 are suicidal death and the abetment thereof are fulfilled. Further, the submissions made by learned Advocate for the Appellants with regard to the charge under Section 306 and the conviction could not be made, also cannot be readily accepted inasmuch as once the basic constituent or the ingredients for the offence under Section 306 and / or 498 are established from the evidence on record suggesting the suicide by the deceased due to the harassment and abetment by the accused, the conviction could be recorded for offence under Section
306. A useful reference can be made to the observations made by the Hon’ble Apex Curt in case of K.Prema S. Rao and another v/s Yadla Srinivasa Rao and others, AIR 2003 SC,
11. Further, Section
498 recording cruelty by husband and the relatives has been brought by way of Amendment Act of 1983 and Section 498A has been added with a view to give new dimension for the offence against the female. As discussed above, Section 498A clearly provides as to what would constitute a cruelty. Though the word cruelty has not been defined, explanation (a) to Section 498A provides as to what would constitute cruelty :
any willful conduct which is of such a nature as is likely to drive the woman to commit suicide …………..
(ii) the harassment of the woman
where such a harassment with a view to …………..
Thus, when the deceased is alleged to have committed suicide in background of the facts and circumstances as discussed and borne out from the testimony of witnesses, it cannot be said that the ingredients for offence under Section 306 or 498A are not established. Much emphasis given by learned Advocate that even if the offence under Section 498A are stated to have been established, it would not be much relevant as he has undergone the sentence, and therefore, what he has been emphasizing is with regard to the conviction for offence under Section 306, is also required to be appreciated. It is well accepted that it will have to be considered from the totality of the facts and circumstances and the material and evidence on record as to whether offence under Section 306 can be said to have been established. As discussed hereinabove, the necessary ingredients with regard to the abetment and creating the atmosphere by which the deceased is led to commit suicide, would attract Section 306. It is such circumstance compelling the woman to lead to commit suicide, will have to be considered on the basis of material and evidence with regard to the circumstance which have been created, which in turn has compelled her to commit suicide. A useful reference can be made to the observations made by the Hon’ble Apex Court in case of Sohan Raj Sharma v/s State of Haryana, AIR 2008 SC 2108, where the Hon’ble Apex Court has succinctly observed on this aspect that the abetment involves a mental process of instigating a person or intentionally aiding that persons in doing of a thing. Therefore, it has been stated that whether it is a suicide or accidental death, the chances of accidental death are totally ruled out, and therefore, it is a suicide. Further, the testimony of the witnesses, including the complainant uncle, corroborated by the testimony of other witnesses and the evidence with regard to the past conduct and the harassment itself would be sufficient to maintain the conviction under Section 498-A and 306 of IPC. The trial Court also, though has not believed and accepted the charges for offence under Section 304B, still has recorded the conviction under Section 498-A and 306 of IPC. Without much elaboration, since there is no acquittal appeal preferred by the State, it would be suffice to say that the trial Court has also failed to appreciate the other evidence like the letters with regard to demand and has misdirected while giving reasoning that such a letter could have been for some other purpose and cannot be said to be sufficient for attracting the offence under Section 304B of IPC also with regard to dying declaration. Be that as it may, having considering the totality of the material and evidence on record and as the conviction has been recorded for offence under Section 498A as well as 306 of IPC, this Court is of the opinion that it does not call for any interference. It is required to be mentioned that recording of conviction under Section 498A is not much pressed by the learned advocate for the Appellants and his main submission was with regard to Section 306 contending that if there was no charge, the conviction under Section 306 could not have been recorded, and if that is set aside, the sentence for offence under Section 498A is almost undergone, and therefore, he had prayed for setting aside of the judgment. However, as discussed hereinabove at length, the said submissions cannot be accepted, and therefore, in view of the reasons recorded hereinabove, the present appeal deserves to be dismissed.
impugned judgment and order passed by the learned Additional Sessions Judge, Sabarkantha at Himatnaghar in Sessions Case No, 23 of 1994 dated 9.5.1997 recording conviction of A-1, A-2 and A-4 for the offence under Sections 306 and 498-A of IPC and imposing sentence, is hereby confirmed.
The recoding of
acquittal of the A-3 and A-5 for all the charges and also recording the acquittal of the A-1, A-2 and A-4 qua the offences under Sections 302 and 304B of IPC is not interfered and is sustained. Accordingly, the present Appeal stands dismissed.
(Rajesh H. Shukla,J)
After the judgment was
pronounced, learned Counsel Mr. Anandjiwala for the Appellants requested to grant time to surrender upto 8 weeks. Accordingly, the time is granted to surrender upto 8 weeks from today.
(Rajesh H. Shukla,J)