CR.MA/15989/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15989 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= LAKHANSIGH @ LALO JASUBHA JADEJA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : HL PATEL ADVOCATES for Applicant(s) : 1, MR MG NANAVATI, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 30/12/2008 ORAL JUDGMENT 1. Rule. Learned APP Mr.M.G.Nanavati waives service of Rule on behalf of the respondent-State. 2. The applicant original-accused of Jamnagar Panchkoshi “B” Division Police Station being CR CR.MA/15989/2008 2/8 JUDGMENT No.II-165 of 2008 for the offences punishable under Sections 306, 498(A) and 323 of IPC of has preferred the present application for seeking regular bail under Section 439 of Cr.PC. 3. Heard learned advocate Mr.Vijay Patel for the applicant. He has contended that the present applicant is innocent and he has not committed any offence as alleged against him and he has been falsely involved in the offence. He has also contended that in the said offence, the charge sheet is filed on 4.11.2008 and from the contention of the FIR itself, it shows that the deceased has never complained against the applicant during her marriage life. The learned advocate has also contended that the prosecution has relied upon the Dying declaration dated 25.9.2008, but it is not a dying declaration in the eye of law and it cannot be considered as such. He has also contended that the certificate regarding fitness of mind of the deceased was not obtained from the Doctor. So it cannot be considered as a dying declaration. He has further submitted that 90% burns was found on the body of the deceased. So the said so-called dying declaration cannot be considered as a relevant piece of evidence and trustworthy and CR.MA/15989/2008 3/8 JUDGMENT acceptable. It is also contended by learned advocate Mr.Patel that the allegations made in the complaint and the dying declaration is not in natural manner. Learned advocate further vehemently argued that the present applicant cannot be considered as a provocator or abettor. 4. As against this, learned APP Mr.M.G.Nanavati for the State has contended that from the complaint and dying declaration of the deceased, the averments and statements are trustworthy, reliable and acceptable. He has also contended that from the perusal of the complaint as well as the dying declaration, the deceased has explained the conduct of the present applicant-husband and from the conduct and characteristic of the applicant, it appears that both the documents figure the applicant as a provocator as well as abettor and due to the torture made by the applicant, the deceased-wife committed suicide. 5. I have gone through the papers produced before me and considered the contentions made by learned advocate Mr.Patel as well as Mr.Nanavati, learned APP. Section 113(A) of the Evidence Act reads as under: CR.MA/15989/2008 4/8 JUDGMENT “113(A) Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” 6. I have gone through the contentions made by the complainant that before five months of the incident, the marriage of the applicant and the deceased had taken place. Therefore, question of raising presumption can be arrived at. I have perused the complaint of the deceased. She has contended in her complaint that the present applicant always pointing out that he does not want her and he was not taking meal from her and even he was not calling her. So due to the said harassment, she was tired and she was CR.MA/15989/2008 5/8 JUDGMENT sent back to her parental home by the in-laws and therefore due to the said above conduct of the applicant, she committed suicide. The statement of the prosecutrix was also recorded by the Executive Magistrate of Jamnagar, on 25.9.2008. I have perused the dying declaration recorded by the Executive Magistrate. It appears from the statement that some version of the complainant was repeated by the deceased before the Executive Magistrate. From both the dying declarations, I find that the same fully corroborate each other. So far as the question of instigation is concerned, the provisions of Section 107 read with Section 107 of Indian Penal Code defines abetment. Reading Sections 306 and 107 together, it is clear that if any person instigate any other person to commit suicide and as a result of such instigation of other person, commits suicide thereon causing instigation, is liable to be punished under Section 30^ of Indian Penal Code for abetting the commission of offence in any one of the ways set out in Section 107 of the Indian Penal Code. The case of the applicant when falls under the first category, i.e. instigation, a person to do a thing, in circumstances, the need to invoke Explanation-II does not arise and this principle is an established law. CR.MA/15989/2008 6/8 JUDGMENT 7. It is true that the commission of the offence of instigation would depend upon the facts of each case. Therefore, in order to decide whether a person has abetted by instigation for the commission of the offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. Such being the case of instigative effect to the conduct used by opposite person (accused) must be judged on the basis of distraught condition to which the accused had driven the deceased. In the present case, if the applicant would have left the habit of pointing husband, calling his wife and taking meal from her and would have maintained matrimonial relationship properly, then the deceased would not have nourished the idea of suicide and would not have committed suicide. 8. Abetment as defined by Section 107 of the Indian Penal Code comprises (i) instigation to do that thing which is an offence; (ii)engaging in any conspiracy for doing of that thing;and (iii) intentionally aiding by any act or illegal omission, the doing of CR.MA/15989/2008 7/8 JUDGMENT that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word “instigate” in the literary sense means to incite, set or urge on, stir up, good, formant, stimulate, provoke, etc. The dictionary meaning of word “aid” is to give assistance, help etc. 9. In view of the above observation and discussion and from the perusal of the papers, it appears that due to the habit of the applicant, and looking to the habit and abnormal habit of the applicant with his wife (deceased) who would have great expectations in life with the married life, she has committed suicide. After going through the dying declaration recorded by the police as well as by the Executive Magistrate, at this stage of hearing of this application, I am unable to accept the submission made by the learned advocate for the applicant as it appears to be not trustworthy. From the said documents, I am of the opinion that at this stage, it appears that both the dying declaration made by the deceased are trustworthy and acceptable and looking to the character of the applicant, it appears that he CR.MA/15989/2008 8/8 JUDGMENT is an abetor. So due to the abetment and provocation by the applicant-husband, the deceased has committed suicide. Hence, I do not find any reason to entertain this application and to release the applicant on regular bail. In the result, the application is rejected. Rule is discharged. (Z.K.Saiyed, J.) Sreeram.