Gujarat High Court Case Information System Print CR.A/1370/2007 10/ 10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1370 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] MR.JUSTICE [ENTITY] 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 ? [ENTITY] - Appellant(s) Versus [ENTITY] - Opponent(s) Appearance : MR [ENTITY] for Appellant(s) : 1, MR [ENTITY], APP for Opponent(s) : 1, CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 09/12/2010 ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE [ENTITY]) The appellant challenges the judgment and order rendered by the learned Addl.Sessions Judge, F.T.C., Bharuch, camping at Ankleshwar, in [CASE NUMBER] on 6.11.2007 convicting him for the offences punishable under [SECTION] and [SECTION] of [ACT]. For the offence punishable under [SECTION] of [ACT], the appellant was convicted and ordered to undergo rigorous imprisonment for 7 years and 6 months with fine of Rs.2,000/-, in default, to undergo further imprisonment for 20 months and for the offence punishable under [SECTION] of [ACT], he was ordered to undergo rigorous imprisonment for one year with fine of Rs.1,000/-, in default, to undergo further imprisonment for one month. The sentences were ordered to run concurrently. The benefit of set off was also given to the appellant.
2. The facts of the case, in brief, can be stated thus:
2.1 The appellant was married to [ENTITY] for about 12 years. From the wed-lock, his wife delivered two children. It is the case of the prosecution further that the marriage life of the appellant with his wife [ENTITY] was not smooth and the appellant used to quarrel with his wife and used to beat and manhandle her. He also used to drink. The appellant's wife was in her parental house and was taken to her matrimonial home on 26.1.2007 on account of some obsequial ceremony was to be performed in respect of the brother in law of the appellant. On 27.1.2007 in the morning, there was some quarrel between the appellant and his wife. The appellant's wife, [ENTITY] started leaving the house with her younger son [ENTITY] and at that time, the appellant gave her thrash and snatched the child from her and said that she may now go wherever she wants to go. The appellant's wife, [ENTITY], thereafter went into the house, poured kerosene on herself and set herself ablaze. She suffered severe burns injuries. She was taken to hospital by the appellant, where she succumbed to the injuries while under treatment.
2.2 While the appellant's wife was in the hospital for treatment, her FIR was recorded by the police. She implicated the appellant. Her dying declaration was also recorded by the Executive Magistrate, where also, she implicated the appellant by saying that because the appellant snatched her child from her, she got scared. The offence was registered on the basis of the FIR given by the deceased by Jagadia Police Station and after investigation, charge sheet was filed in the Court of JMFC, Jagadia. The learned JMFC, in turn, committed the case to the Court of Sessions as the offences alleged against the appellant-accused were triable exclusively by the Court of Sessions and that is how [CASE NUMBER] came to be registered.
2.3 The charge against the appellant was at Exh.3 for the offences punishable under [SECTION] and [SECTION] of [ACT]. The appellant pleaded not guilty and claimed to be tried. The trial Court proceeded with the trial and after considering the evidence led by the prosecution, came to the conclusion that the prosecution was successful in establishing the charges levelled against the appellant and recorded his conviction and hence, this appeal.
3. Learned advocate Mr.[ENTITY] for the appellant submitted that the marriage life of the appellant with the deceased was for about 12 years. She had not made any complaint earlier about any ill treatment. On the fateful day, all that is alleged against the appellant is that he snatched the child from the deceased and asked her to go wherever she wants to go, following an altercation between the two. This cannot be considered as an abetment of the offence of suicide.
3.1 Learned advocate Mr.[ENTITY] submitted further that the relatives of the deceased including the mother, father and brother of the deceased have not supported the prosecution case, in any manner. The trial Court has mainly relied on the dying declaration recorded by the Executive Magistrate. Mr.[ENTITY] submitted that as per the evidence of the deceased, she has suffered 95% burns injuries of 3rd degree. These injuries could not have left the deceased in a healthy state of mind to give the dying declaration. He submitted that the evidence of the Executive Magistrate and that of the Medical Officer, if read in the context of each other, they are inconsistent on the question as to when the endorsement was obtained by the Executive Magistrate on the dying declaration, whether before or after recording of the dying declaration. Mr.[ENTITY] submitted further that as to whether the opinion given by the Doctor was given before recording of the dying declaration, it shows that it was given some time before and there is no evidence to show that the condition of the victim remained constant after giving of the opinion till the dying declaration was recorded by the Executive Magistrate. He submitted that there is no corroborative evidence so far as the cruelty aspect is concerned.
3.2 Learned advocate Mr.[ENTITY] submitted that even the investigation is not upto the mark, because it comes in evidence that the FIR was written down by the PSI himself on his own and not as was dictated by the first informant - deceased [ENTITY]. Mr.[ENTITY], therefore, submitted that all these aspects have been over-looked and the conviction was mainly recorded on the basis of dying declaration recorded by the Executive Magistrate. The benefit of doubt may, therefore, be given to the appellant and he may be acquitted of the charges levelled against him.
4. Learned APP Mr.[ENTITY], on the other hand, has opposed this appeal. According to him, the behaviour of the appellant was consistent. He used to drink, ill-treat his wife, used to beat her and manhandle her. Mr.[ENTITY] submitted that on the eventful day also, initially, there was an altercation/quarrel between the two and then the appellant snatched the child from the deceased and asked her to go wherever she wants to go. All this collectively instigated the deceased to commit suicide. The appellant, therefore, has rightly been convicted by the trial Court.
4.1 Learned APP Mr.[ENTITY] submitted that so far as the role of the appellant at the time of the incident is seen, it emerges from the dying declaration recorded by the Executive Magistrate as well as the FIR recorded by the police, that there was a quarrel between the two followed by snatching the child and utterances to the effect that the deceased may go wherever she wants to go. This would certainly connect the accused with the crime punishable under [SECTION] of [ACT]. He could be certainly said to have abetted the offence of act of suicide by the deceased. This is under pressure and the victim committed suicide and therefore, the conviction recorded is well founded and the appeal, therefore be, dismissed.
5. We have examined the record and proceedings in the context of rival submissions.
5.1 At the outset, it may be noted that both the FIR and the dying declaration before the Executive Magistrate implicate the appellant of having quarrelled with the deceased in the morning and when she started leaving the house, the appellant having snatched away the child from her and having uttered words, "you may go wherever you want to go".
5.2 The FIR is rendered useless to the prosecution by admission of witness, [ENTITY] at Exh.17, where she admits that when they went to the hospital, after about half an hour, the police came. The deceased was badly burnt on face and on chest. She was unable to speak and the PI took her thumb impression on the FIR. She also states that the FIR was written down by the PI himself on his own, meaning thereby that it was not dictated by the deceased because, in earlier part, she says that the deceased was unable to speak.
5.3 Now comes the question of dying declaration. The dying declaration is recorded by the Executive Magistrate, [ENTITY], at Exh.24 and the other dying declaration is at Exh.26. [ENTITY] in his deposition says that he went to the hospital and requested the Doctor to put his endorsement on the dying declaration that the deceased was conscious. Thereafter, he went to the deceased and recorded her dying declaration. The Executive Magistrate also goes to say that he put several questions to the deceased and found that the deceased was conscious and well oriented and thereafter he questioned her as to how the incident had occurred, when she said that her husband used to ill-treat her, and used to beat her after taking drinks. She then said that, on that day, her husband had snatched her child. She, therefore, got scared and therefore, poured kerosene on herself and set herself ablaze. This dying declaration is sought to be challenged by the learned advocate for the appellant on the ground that there is inconsistency in the evidence of the Executive Magistrate and the Doctor as to when the endorsement was obtained. The endorsement made by the Doctor on the dying declaration at Exh.26 makes it clear that the endorsement was made at 4.25 p.m. in the evening. The dying declaration was recorded between 16.30 and 16.50 hrs. as can be seen. Therefore, what the Executive Magistrate says in his deposition seems to be in the correct order. As such, it can be said that the deceased was also found to be conscious and oriented by the Executive Magistrate himself. The dying declaration, therefore, cannot be discarded on the ground of its genuineness, i.e., the procedure was followed and was accordingly recorded. The dying declaration cannot be thrown out on the ground of superfluous either as there is nothing before us to suspect the truthfulness of the dying declaration and, ordinarily, the dying declaration is presumed to be truthful as it is made in the face of death. We are, therefore, of the view that the dying declaration deserves to be accepted at its face value.
5.4 This prompts us to examine whether the dying declaration, if taken at its face value, will constitute the offence punishable under [SECTION] of [ACT] or not. In this context, if [SECTION] of [ACT] is seen, it prescribes the punishment for abetting offence of suicide. In this context, again, we may refer to the dying declaration, which says that the appellant used to drink and beat the deceased. That aspect is not in the context of the event occurred on that day and is not in proximity of time of the event. What happens on the day in proximity of time is that the appellant snatched the child from the deceased. This resulted into the deceased getting scared and she set herself ablaze by pouring kerosene. Whether the act of snatching the child by the appellant, might be following some quarrel in the morning, can be said to be an instigation to commit suicide. In this context, we may refer to a decision of the Apex Court in [PRECEDENT], where the Apex Court states that ingredients of [SECTION] of [ACT] are required to be shown. The term in this context denotes, "instigate" incitement or urging to do some drastic or inadvisable action or to stimulate or incite. The Court also held that the presence of mens rea is the necessary concomitant for instigation. In the instant case, as per the dying declaration, all that is alleged is that the appellant snatched the child from the deceased. In the FIR too, it is stated that the appellant, after snatching the child, asked the deceased to go wherever she wants to go. That FIR is held not reliable by us and even if that part is taken into consideration, all that is alleged to have been uttered by the appellant is that he asked the deceased to go wherever she wants to go. Differently put, as a father of child, he did not want the deceased wife to go with the child. He had no objection of his wife going wherever she wants to go. Beyond that, no intention can be read. There is absence of any mens rea or any intention to prompt the deceased to commit suicide. In [ENTITY] Kumar v. State of Chhattisgarh, reported in (1994) 1 SCC 73, the Apex Court had an occasion to deal with a case of similar nature - a dispute between the husband and wife. The appellant - husband had uttered, "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant [ENTITY] committed suicide. The Court in para 20 has examined different shades of the meaning of "instigation", which can be quoted thus:
Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts of omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
We are faced with almost identical situation where there is some dispute between the husband and wife and the husband snatches the child from wife and permits the wife to go wherever she wants to go. This can hardly be considered to be an instigation of suicide and therefore, in our view, if the dying declaration is taken at its face value, it does not implicate the appellant with the offence of abetment of suicide. Apart from the above aspects, it would also be appropriate to record that father [ENTITY], at Exh.18, mother [ENTITY], at Exh.17 and brother [ENTITY], at Exh.30 have all not supported the prosecution case regarding harassment, ill-treatment and beating by the appellant.
5.5 Similarly, it would also be appropriate to record that the first information sent to the police by telephone [ENTITY] from the Hospital, which is on record at Exhs.35, 36, and 37 speaks of accidental burns having been suffered by the deceased. Learned APP has tried to explain that this is because the history which was initially given by the appellant, as is emerging from the evidence of Police Constable [ENTITY], at Exh.27, sounds to us to be of good explanation and can be accepted, but that does not affect the merits of the appeal.
5.6 This leaves for us the question whether the conviction recorded under [SECTION] of [ACT] can be considered to have been properly constituted or not. In this context, we may observe that since we have found the dying declaration to be reliable and the dying declaration speaks of the appellant harassing the deceased, ill-treating her and beating, the said offence can be said to have been properly proved by the prosecution. The trial Court was, therefore, justified in convicting the appellant for that offence.
7. In the result, the appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant recorded by the learned Addl.Sessions Judge, F.T.C. No.5, Bharuch, Camp Ankleshwar in [CASE NUMBER] on 6.11.2007 for the offence punishable under [SECTION] of [ACT] is hereby set aside. He is acquitted of that charge against him. Fine for the offence punishable under [SECTION] of [ACT], if paid, be refunded.
The conviction with sentence of the appellant so far it relates to offence punishable under [SECTION] of [ACT] is concerned, the same is confirmed. The appeal stands disposed of accordingly.
([ENTITY], J.) [ENTITY]. ([ENTITY], J.)