CR.A/988/1993 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 988 of 1993 with CRIMINAL APPEAL NO. 1002 OF 1993 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= KAMLABEN WD/O MANILAL N NAI - Appellant(s) Versus STATE OF GUJ - Opponent(s) ========================================================= Appearance : Ms. Chetna M Shah, for Mr VIJAY H PATEL for Appellant(s) : 1, Ms. Darshna Pandit, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 11/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order of conviction and sentence dated CR.A/988/1993 2/16 JUDGMENT 9.7.1993 passed by the learned Addl. City Sessions Judge, Court No.20, Ahmedabad by which the learned Sessions Judge convicted the present appellant- accused No.1 for the offences punishable under section 498A and 306 read with section 114 of IPC in Sessions Case No. 133 of 1990 whereby the appellant-Kamlaben was sentenced to suffer simple imprisonment for six months, in default, 3 months simple imprisonment for both the offences and also sentenced to pay fine of Rs. 250/- for each offences. Both the substantive sentences were ordered to run concurrently. However, original accused No.2 was acquitted of the charges by the trial court. 2. The State has preferred Appeal being Criminal Appeal No.1002 of 1993 for enhancement of the sentences which was admitted by the Division Bench of this Court by its order dated 28.3.1994. The said appeal is also heard along with the Criminal Appeal No.988 of 1993. CR.A/988/1993 3/16 JUDGMENT The facts necessary for disposal of the present appeal are briefly stated hereunder: 3. Accused No.1-Kamlaben, widow of Manilal Narsihbhai Nai is mother of accused No.2 and mother-in-law of deceased Shilpa. Accused No.2 is brother of the husband of the deceased. The appellant and her elder son were residing on the ground floor in a house in Sadumatani Pole, Shahpur, Mota Bharvado, Ahmedabad. Deceased Shilpa and her husband were residing on the first floor of the said house. It is alleged that the marriage of deceased Shilpa with PW 1, Mukesh Manilal Nai had taken place 4 years back before the incident took place. It is alleged that accused No.1, mother-in-law of the deceased always picked up quarrels with deceased Shilpa on household work. On one occasion accused no.2 had assaulted the deceased and the deceased ran away from the house. That on 12.6.1989, when accused No.1 came on the terrace for drying clothes, as usual she quarreled with Shilpa and accused No.2 also joined accused No.1 in quarreling with the CR.A/988/1993 4/16 JUDGMENT deceased. On that day, at about 8 a.m., when the accused No.1 went to the terrace and quarreled with the deceased, abused her and asked her to leave the house. Because of this mental torture, at night, deceased Shilpa poured kerosene on herself and set her ablaze. The husband of the deceased and the other son and accused No.1, Kamlaben were present at that time. The deceased was taken to V.S. Hospital by accused No.1 Kamalaben and others, where a complaint was lodged before the Police Inspector, Shahpur police station. On the basis of the complaint, offence was registered as CR.I No.107 of 1989 under section 498A of IPC and necessary investigation also started. Her dying declaration was recorded by the Executive Magistrate, Mr Laxman Keshavlal Parghi. On the next day, at about 6.10 a.m., Shilpa died and therefore, offence under section 306 of IPC was added. 4. During the investigation, relevant panchnama such as scene of offence, inquest panchnama etc. were drawn. The Investigating Officer recorded statement of witnesses including CR.A/988/1993 5/16 JUDGMENT Mukeshbhai, husband of the deceased. During the investigation, post mortem note was also collected and relevant muddamal was sent to the FSL. After the death of Shilpa, report was sent to the concerned court under section 306 and 304-B of IPC. At the end of the investigation, charge sheet was filed. As the learned Metropolitan Magistrate has no jurisdiction to try the case under section 306 of IPC, by passing order, the said case was committed to the Sessions Court, Ahmedabad which was numbered as Sessions Case No.133/1990. 5. The Addl.Sessions Judge, Court No.20, Ahmedabad framed charges against both the accused for offence under sections 498A and 306 read with section 114 of IPC, which is at Exh.4. Both the accused denied the charges levelled against them and they claimed to be tried. To prove its case, the prosecution has examined the following witnesses: i. PW 1 Mukesh M Nai, husband of decd. Exh.13 ii. PW 2 Laxman K Parghi, Exe. Magistrate Exh.14 CR.A/988/1993 6/16 JUDGMENT iii.PW 3 Babulal Bhavsar, neighbour Exh.17 iv. PW 4 Amarsing Thakore, Police Jamadar Exh.18 v. PW 5 Dr.Mayankkumar Raval Exh.23 vi. PW 6 Atmaram B Nai, father of decd. Exh. 29 vii.PW 7 Dr.Priyankar Sinha Exh. 30 viii.PW 8 Dr. Narendra Jesalpura Exh. 32 ix. PW 9 Ratnabhai Surelia, PSI Exh. 34 x. PW 10 Retd.P.I., Kishorsinh Rathod Exh. 37 xi. PW 11 Retd. S.P. Mahendrasinh Jhala Exh. 38 The prosecution has also relied upon the documents such as the complaint-Exh.24, panchnama of the burnt clothes of the deceased, Exh.8, Panchnama of the scene of the offence, Exh.9, panchnama of discovery panchnama, Exh.11, Dying Declaration Exh. 16, Post Mortem report, Exh.33 etc. in support of its case. 6. Further statement of both the accused under section 313 of the Criminal Procedure Code was recorded after evidence of the prosecution side was over, in which accused-Kamlaben stated that as per the demand of deceased Shilpa, they gave separate house on the first floor to her son-Mukesh, that at the time of the incident, they were staying CR.A/988/1993 7/16 JUDGMENT separately. It is also stated by her that the father-in-law and mother-in-law of Mukesh intended to take Mukesh to their house as 'Ghar jamai”. Her son refused to do that as she was not keeping good health. It is also submitted by her that deceased Shilpa was harassing her son a lot and due to that also, her son refused to settle down in Shilpa's house in Patan. She has stated that Shilpa has doubted that Kamlaben instigated Mukesh for not going to Patan. It is also stated by her that Shilpa used to go to Patan frequently and she was very short tempered in nature. It is also submitted by her that Mukesh, her son was beaten up by Shilpa on many occasions and once she locked him (Mukesh) up in the room and did not even provide food to him. Both the accused denied to examine any witness in defence. 7. After hearing the arguments of the learned APP for the prosecution and the learned advocate for the accused and examining the witnesses and after appeciating and scrutinising the documentary evidence on record, the learned trial Judge found the accused CR.A/988/1993 8/16 JUDGMENT guilty of the charges framed against them and convicted them as aforesaid. Hence the present appeal. 8. Heard Ms. Chetnaben M. Shah for Mr V H Patel, learned advocate on behalf of the appellant and Ms. Darshana Pandit, learned APP for the State. It is argued by Ms. Shah that on a scrutiny of the evidence shows that there are two dying declarations in the present case. One is recorded before the Executive Magistrate which is at Exh.16. The other dying declaration is the complaint-Exh.24 recorded by the police witness. She has pointed out that both the dying declaration were recorded at the same time which creates doubt. As per Exh.16 and deposition of PW 2-Laxmanbhai Parghi, Exh. 14, Executive Magistrate started recording the dying declaration at 23.30 and completed at 23.50 on 12.6.1989. However, as per deposition of PW 9, Ratnabhai Sureliya, Exh.34, he had received vardhi and at that time he was at Shahpur police station. According to him he reached in the room where deceased Shilpa was admitted, at about 11.15, he recorded the complaint at 11.25 pm CR.A/988/1993 9/16 JUDGMENT and he has completed the same within half an hour. She submitted that there is contradiction and doubt about the recording of the Dying Declaration. 9. She further submitted that in the present case, there is nothing on record to show that serious quarrel had taken place between the appellant and the deceased on that particular day. That, the deceased and her husband were staying separately. She further submitted that there is no evidence at all on record to show that the deceased was subjected to any physical or mental torture by the accused-appellant which persuaded her to commit suicide. Therefore, she submits that the learned trial Judge has committed error in convicting the present appellant and hence this appeal be allowed and the impugned order of conviction and sentence be quashed and set aside. 10. Learned APP submitted that the defence put forward by the accused is not probable and not believable and the prosecution was able to prove its case by leading cogent and reliable evidence and CR.A/988/1993 10/16 JUDGMENT proed the charges levelled against the accused beyond reasonable doubt and hence the judgment and order passed by the learned trial Judge is legal and proper and the same is not required to be interfered with by this court and the appeal deserves to be dismissed. She further submitted that in fact, the State has filed Criminal Appeal No. 1002 of 1993 for enhancement of the punishment awarded to the appellant. 11. The entire case is based on two dying declarations – one is in the form of complaint recorded by PW 9, Ratnabhai Sureliya at Exh.24 and the other is the dying declaration recorded by the Executive Magistrate, Laxman Keshavlal Parghi. which is at Exh.16. If we peruse both the dying declaration, it transpires that on the date of the incident, accused No.1-Kamlaben quarreled with deceased Shilpa and she abused Shilpa and also asked her to leave the house. It is also stated in the complaint that accused no.1 used to abuse and quarrel with her frequently and that due to mental torture, she committed suicide. In the dying CR.A/988/1993 11/16 JUDGMENT declaration Exh.16 recorded by PW 2 also the same story is narrated by deceased Shilpa. As per the evidence of father of the deceased, Atmaram Bhikhabhai Nai, deceased Shilpa was staying in joint family for two and half years after marriage and thereafter as frequent quarrel took place between deceased and her mother-in-law (present appellant), deceased Shilpa and her husband started staying separately on the first floor of their house. As per evidence of this witness, he knows about this fact as whenever Shilpa visits his house, she used to tell him that her mother-in-law harasses her and she is mentally tortured by her. She specifically said that only her mother-in-law harasses her. It has also come in evidence of other witnesses that when the incident of committing suicide by Shilpa had taken place, she was staying with Mukesh, her husband separately on the first floor. From the evidence of dying declaration, the only fact emerged is that the deceased was harassed by her mother-in-law for petty reasons. That such kind of quarrel/disputes always took place quite often during their married life. CR.A/988/1993 12/16 JUDGMENT 12. It is true that such type of quarrel or difference of opinion is common in every house between daugter-in-law and in-laws or husbands. But this type of petty quarrels or disputes cannot be said to be mental torture or harassment meted out with an intention to persuade or abet the daughter- in-law to commit suicide. To prove the charge under sections 306 read with section 107 of IPC, such type of harassment by husband or in-laws, is not sufficient to prove that the accused harassed the deceased with intention to compel the deceased to commit suicide. 13. The learned advocate for the appellant, in support of her case, placed reliance on a decision of the Hon'ble The Apex Court, in the case of Bhagwan Das v. Kartar Singh & Others, (2008) 1 SCC (Cri.) 664 wherein the Court has held as under: “15. In our opinion, the view taken by the High Court is correct. It often happens that there are disputtes and discords in the matrimonial home and a wife is often CR.A/988/1993 13/16 JUDGMENT harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more, attract Section 306 of IPC read with section 107 of IPC. 16. However, in our opinion, mere harassment of wife by husband due to differences per se does not attract section 306 read with section 107 IPC, if the wife commits suicide.” 14. This court has gone through the above decision. In the above case the deceased was being taunted and being harassed. She was also ill-treated as she was not able to give birth to a child. The deceased was being subject to mental cruelty, as the deceased was paralysed on account of an accident. These circumstances, according to the prosecution, drove the deceased to commit suicide. In that case also, the Addl.Sessions Judge framed charges under sections 306/498A, 34 IPC against the father-in-law, mother-in-law and the brothers of her husband. In the present case, there is no physical torture to the CR.A/988/1993 14/16 JUDGMENT deceased and except minor quarrel or disputes, nothing is on record to prove that the appellant abetted or instigated the deceased Shilpa to commit suicide. 14.1. In Mahendra Singh v. State of M.P., an identical case, the Hon'ble Supreme Court observed that “it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea and that no offence under section 306 IPC read with section 107 IPC was made out because there was no element of mens rea.” 15. In view of the above, this court is of the opinion that in this case, whether the alleged cruelty by way of petty quarrel in domestic life which is common, meted out to the victim, had in fact, induced her to end the life by committing suicide, is not at all proved. It is also pertinent to note that at the time of the incident, accused no.1 was 70 years old and as mentioned above, there is not a single allegation that the deceased was CR.A/988/1993 15/16 JUDGMENT subjected to physical assault or torture. Taking into consideration the two dying declarations and deposition of the father of the deceased Shilpa, in the opinion of this court, the prosecution has failed to prove the charges levelled against the accused persons under sections 498A, 306 read with section 107 of IPC. Thus, in the opinion of this court, the trial court has committed error in convicting the accused and therefore, the appeal deserves to be allowed. 16. In the result, Criminal Appeal No.988 of 1993 is allowed. The impugned judgment and order of conviction and sentence dated 9.7.1993 passed by the learned Addl.City Sessions Judge, Court No.20, Ahmedabad, is quashed and set aside. The appellant- original accused No.1 is acquitted of the offence punishable under sections 498-A and 306 of Indian Penal Code. The Bail Bonds stand cancelled. Fine, if any, paid, shall be refunded. Looking to the peculiar facts of this case, this order may not be treated as a binding precedent in other matters. CR.A/988/1993 16/16 JUDGMENT 17. The Criminal Appeal No.1002 of 1993 filed by the State of Gujarat for enhancement of the conviction is hereby dismissed. [M.D. SHAH, J.] msp