Gujarat High Court
State Of Gujarat vs Mochi Dilipkumar on 15 January, 2013
  
	 
	 STATE OF GUJARAT....Appellant(s)V/SMOCHI DILIPKUMAR MULJIBHIA
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	R/CR.A/857/1996
	                                                                    
	                           JUDGEMNT

 

 


 
	  
	  
		 
			 

IN
			THE HIGH COURT OF GUJARAT AT AHMEDABAD
		
	

 


 


 


 


 


CRIMINAL APPEAL
NO.857 of 1996
 


 


 

 

 

FOR
APPROVAL AND SIGNATURE: 

 

 

 

 

 

HONOURABLE
MS. JUSTICE HARSHA DEVANI
 

 

 

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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?
			 

 

			
		
		 
			 

 

			
		
	

 

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STATE OF
GUJARAT....Appellant
 


Versus
 


MOCHI DILIPKUMAR
MULJIBHAI  &  1....Respondent(s)
 

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Appearance:
 

MR
KL PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the Appellant
 

MR
PARAM BUCH for MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 1 -
2
 

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CORAM:
				
				
			
			 
				 

HONOURABLE
				MS. JUSTICE HARSHA DEVANI
			
		
	

 


 

 


 


 


Date : 15/01/2013
 


 


 


 

 


ORAL JUDGMENT

1. This appeal is directed against the judgment and order dated 29th June, 1996 passed by the learned Assistant Sessions Judge, Junagadh in Sessions Case No.17/1991.

2. The prosecution case is that the first informant Labhuben, wife of Dilipkumar Muljibhai was residing in the house of Aminaben Fakir situated behind Archana Bungalow, Bhoi Society at Veraval alongwith her husband Dilipkumar Muljibhai and her children. The first informant s husband was working as a cobbler in the name and style of Footwear near Laljibhai Muljibhai Transport. The first informant s paternal home was at Una. Her mother had expired and her father Muljibhai Punabhai was also working as a cobbler at Una. According to the first informant, her father-in-law, brother-in-laws etc. were residing separately. On 22nd September, 1990 at 9 o clock in the morning, her brother-in-law (husband s younger brother) Pradipkumar Muljibhai came to her house and in the presence of her husband gave filthy abuses and after assaulting her physically, went away. After her brother-in-law had gone away, her husband Dilipkumar Muljibhai argued with the first informant and told her that from that day, he did not want to eat at home and that he did not want to see her and gave her blows on the hands, legs and body with a stick and went away from the house. In view of the above incident, the first informant became despondent and since, time and again, her husband used to beat her and subject her to physical and mental harassment and was not giving any money to run the home on account of which, on many occasions, she and her children had to go to bed hungry, being fed up with her husband beating her up, and feeling that instead of the daily physical harassment, it was better to die, on 22nd September, 1990 in the morning at 10:30, when except for her little children, no one else was at home, the first informant, took the kerosene which was lying in a tin at home and sprinkled the same over her body and set herself ablaze on account of which her entire body was burnt from head to foot. Thereafter, the first informant was taken to Veraval Municipal Hospital for treatment where she lodged the first information report in the above terms. The first information report was lodged before Shri D.R. Agrawat, Police Sub-Inspector, Veraval City Police Station for the offence punishable under sections 498-A, 323 read with 114 of the Indian Penal Code. The first informant was given treatment at the hospital and her dying declaration came to be recorded by the Executive Magistrate and she died on 22nd September, 1990 while undergoing treatment.

3. Pursuant to the lodging of the first information report, investigation came to be carried out and a charge-sheet came to be submitted in the court of the learned Judicial Magistrate First Class, Veraval who committed the same to the Court of Sessions where the same came to be registered as Sessions Case No.17/1991. During the course of trial, the prosecution examined, in all, nine witnesses and produced certain documentary evidence in support of its case. The learned Assistant Sessions Judge, after appreciating the evidence on record, came to the conclusion that the prosecution has not established the charges levelled against the accused beyond reasonable doubt and acquitted them.

4. Mr.

K.L. Pandya, learned Additional Public Prosecutor drew the attention of the court to the depositions of the witnesses as well as the dying declarations recorded by the Executive Magistrate as well as by the police officer. Reference was made to the testimony of Muljibhai Punabhai namely, the father of the deceased to submit that the prosecution, through the testimony of the said witness, has duly established the ingredients of section 498-A. It was pointed out that the deceased had been subjected to undue mental and physical harassment on account of which, the said witness feared that his daughter s life was in danger and had, therefore, initiated proceedings for issuance of search warrant for the purpose of obtaining her custody whereafter he had taken her to his house, where she had stayed with him for four to six months. Thereafter, his son-in-law and other family members had assured him that they would take good care of her after which he had sent his daughter to her matrimonial home. It was submitted that from the testimony of the said witness, it is apparent that the deceased was subjected to undue mental and physical harassment on account of which she was left with no option but to commit suicide. Under the circumstances, the ingredients of section 498-A as well as section 306 I.P.C. are clearly made out from his testimony.

4.1 Attention was invited to the deposition of Shri Vinodrai Ratilal, Executive Magistrate who had recorded the dying declaration of the deceased to submit that the said witness had gone to the hospital and met Dr. Sonariya who was on emergency ward duty and had enquired from him as to whether the patient was in a position to give a dying declaration and that the said Medical Officer had told him that she was in a fit state of mind for recording her dying declaration. Thereafter, he had gone to the ward and had asked the relatives to go out and recorded her dying declaration. It was pointed out that even after the dying declaration was recorded, he had obtained an endorsement from the doctor that the patient was conscious. Thus, the dying declaration had duly been proved through the testimony of the Executive Magistrate. The dying declaration has been recorded when the patient was conscious and in a fit state of mind to give her dying declaration which is borne out from the endorsement made by the Medical Officer both before and after the dying declaration came to be recorded. Under the circumstances, there is no reason to disbelieve the dying declaration of the deceased. Hence, the learned Judge was not justified in acquitting the accused. Reference was also made to the deposition of Shri Dilipkumar Rameshchandra Agrawat, the Police Sub-Inspector who recorded the first information report. It was submitted that the first information report is also in the nature of a dying declaration which has been given before the police officer. Referring to the contents of the first information report, it was submitted that the deceased had clearly stated that she was being subjected to undue mental and physical harassment at the hands of the accused which she could no longer endure and as such, she had brought an end to her life by sprinkling kerosene on herself and setting herself ablaze. It was submitted that in the light of the two dying declarations which have been recorded by two independent witnesses, there is no reason to disbelieve the prosecution case and that the prosecution having duly established the charges levelled against the accused, the order of acquittal requires to be reversed and the accused are required to be convicted for the alleged offences.

5. Opposing the appeal, Mr. Param Buch, learned counsel for the respondents referred to the deposition of the father of the deceased, to point out that the deceased was residing separately with her husband and that there is nothing on record to show that subsequent thereto, there were any disputes between them. It was pointed out that after the deceased set herself ablaze, it was her husband who had taken her to the hospital. After her death, the accused had participated in her funeral and that the children are also residing with the accused. Referring to the dying declaration recorded by the Executive Magistrate, it was submitted that all that the endorsement made therein states is that the patient is fully conscious to give dying declaration; however, it is not clear as to whether the patient was in a fit state of mind to give her statement. Referring to the evidence on record, it was submitted that the prosecution has failed to bring any documentary evidence on record so as to disclose as to what kind of treatment was being given to the deceased and as to whether she was in a fit state of mind to understand the questions which were being put to her. Attention was invited to the deposition of Aminaben Umarsha to point out that the deceased was residing with her husband as a tenant of the said witness. She has deposed to the effect that at the time when the deceased set herself on fire, her husband was not at home. It was submitted that the said witness was a neighbour of the deceased; however, she has not supported the prosecution case. Under the circumstances, in support of its case, the prosecution has not brought on record the evidence of any independent witness. It was submitted that there are various discrepancies in the deposition of the father of the deceased and as such, the testimony of the said witness is not reliable. It was pointed out that the learned Assistant Sessions Judge has duly appreciated the evidence on record and has properly evaluated the same and that there is no sufficient cause for intervention by this court. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177 for the proposition that dying declaration shall have to be dealt with due care and upon proper circumspection. Though corroboration of evidence of dying declaration is not essential, it strengthens the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence. It was further held that if suicide is ruled out then in that event, applicability of section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce 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. Reliance was also placed upon the decision of this court in the case of State of Gujarat v. Bharatbhai Balubhai Lad & Ors., 2006 (1) G.L.R. 514 for the proposition that for bringing home the charge under section 306 of the I.P.C., there must be some evidence adduced on record showing that soon before the incident, there was some harassment and torture to the deceased at the hands of the accused. Section 107 of I.P.C. is with regard to the abetment and in terms of the said section, there must be some evidence that soon before the incident, there must be some incident due to which she was prompted, instigated or abetted to commit suicide. Before a person can be held guilty for abetting the commission of suicide, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended the consequences of the act namely suicide and abetted the suicide within the meaning of section 107 of I.P.C. Mere harassment or cruelty which drags the woman to commit suicide is not sufficient to constitute the offence under section 306 I.P.C. On mere allegations which are general in nature to the effect that the deceased was subjected to mental and physical cruelty at the hands of the deceased, the offence under section 306 cannot be proved.

5.1 Reliance was also placed upon the decision of the Supreme Court in the case of Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 for the proposition that it is well-settled that if on appraisal of the evidence and on considering the relevant attending circumstances, it is found that two views are possible, one, as held by the trial court, for acquitting the accused and the other for convicting the accused, in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable and perverse or unsustainable, the High Court should not interfere with the order of acquittal.

5.2 Reliance was also placed upon the decision of the Supreme Court in the case of Ghurey Lal v. State of Uttar Pradesh, (2008) 10 SCC 450 for the proposition that the appellate court undoubtedly has wide powers of reappreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. Acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable. Referring to the impugned judgment and order, it was submitted that the learned Judge has given cogent, convincing and sufficient reasons and that the same does not suffer from any perversity. Under the circumstances, there is no warrant for any intervention by this court.

6. A perusal of the record of the case reveals that the prosecution has examined Dr. Pragjibhai Manjibhai Sonariya at Exh.9. He has deposed that on 22nd September, 1990 at 10.45, Labhuben Dilipkumar, aged 25 years was brought to the Municipal Hospital, Veraval. Upon examining her, he found the patient to be in an unconscious condition. Her husband Dilipkumar had declared that she had sustained burns at her residential home at 9:45 in the morning. He deposed that he has made necessary endorsement in the hospital case papers which he had brought alongwith him. Thereafter, the patient was admitted to the hospital as an indoor patient and was given treatment. The police station was informed and the dying declaration was recorded on the same day between 12:10 hours and 12:20 hours on 22nd September, 1990. At that time, the patient was in a fit state of mind and was conscious when the dying declaration came to be recorded. Such endorsement has been made by him in the ward case papers. Thereafter, the police statement came to be recorded at 12:45 hours on which he had made an endorsement that the patient was conscious. The patient expired at 1:30 in the afternoon on 22nd September, 1990. In his cross-examination, it has been revealed that when the patient was admitted to the hospital, she had been given injections within ten minutes and was given further treatment. The history had been given by her husband and not by the patient. When the patient was admitted to the hospital, she was not conscious and was not in a position to narrate her history. He has admitted that while giving treatment to the patient, he had given an injection by the name of Pathodene which would affect the mental stability of the patient. He has further deposed that considering the nature of the injuries which have been sustained by the deceased, she would suffer from shock and ordinarily would expire within three to four hours. He has deposed that in her voice-box and respiratory system, carbon particles could be found on account of having sustained burn injuries as well as because of the smoke.

7. P.W.2 Vinodrai Ratilal, Executive Magistrate, Veraval, has been examined at Exh.12. He has deposed that he had received a yadi for recording the dying declaration of the deceased and had arrived at the Veraval Municipal Hospital at 12:10 hours on 22nd September, 1990. Dr. Sonariya was discharging duties in the emergency ward and he had enquired from him as to whether the deceased was in a fit condition for recording her dying declaration, whereupon the doctor had informed him that she was in a fit condition. Thereafter, he had gone to the ward and asked the relatives of the patient to go out and in the presence of Dr. Sonariya, he started recording the dying declaration and the endorsement of the doctor to the effect that the patient was in a conscious state was obtained thereon. He then asked the patient her name as well as her address and recorded her dying declaration in question answer form. After recording the dying declaration, he had again obtained the endorsement of Dr. Sonariya to the effect that the patient was conscious.

8. In his cross-examination, he has accepted that the face of the deceased was burnt. He has also accepted that he had not obtained the opinion of the doctor who was discharging duties in the ward as to whether the patient was in a position to understand the questions put to her. A perusal of the dying declaration reveals that the deceased had stated that she has been beaten. Pradip had hurled abuses at her and inflicted blows. In the morning, he comes and abuses her. Her children should be asked about it. He had hurled filthy abuses at her, and hence, she had set herself ablaze by sprinkling kerosene on herself. Her husband beats her up every evening, due to which she had taken kerosene from a tin and sprinkled the same on herself. The children were present at home. She does not know as to who doused the fire. She was at home. Her husband was not giving money for running the house. No one except her children was present and in the morning stick blows had been inflicted on her hands and legs. These in sum and substance are the contents of the dying declaration.

9. P.W.3

– Muljibhai Punabhai, father of the deceased has deposed that the marriage of the deceased with the accused was solemnised six to seven years prior thereto. After her marriage, her husband used to harass her and his daughter used to tell him that her husband and brother-in-law Pradip abused her and both were forcing her to work. The deceased had expired within six to seven years of her marriage with Dilip. He has stated that he had learnt from the newspapers that his daughter had been set on fire by her husband and brother-in-law. He has further deposed that about one year prior to her death, her husband and brother-in-law had come to Una to call him. At that time, Pradipbhai had told him that his daughter Labhu was quarreling with everyone in the family, and hence, he had gone with Pradip to Veraval at his daughter s matrimonial home. At that time, his daughter was residing alongwith her husband, father-in-law, mother-in-law, Pradip and another brother. After going to Veraval, he asked his daughter as to what the quarrel was about at which point of time she told him that as she was pregnant, she was not in a position to work despite which her in-laws were forcibly asking her to work. At that time, his son-in-law had told him that he would give an electric shock to his daughter and kill her, in response to which he told his son-in-law that if he says such things he would take his daughter home with him. However, his son-in-law did not permit him to take his daughter with him. On that night, both the accused were ready to beat his daughter, hence, he had told them that if they would beat his daughter he would inform the police. Thereafter, he had left his daughter and gone to Una. Later on, he had moved an application for custody of his daughter and had obtained a search warrant on the basis of which he had got the custody of his daughter and the deceased came to reside with him at Una where she stayed at his home for four to six months. Thereafter, his son-in-law and his elder brother as well as his daughter s father-in-law had come to fetch his daughter. At that time, they had asked him whether he was ready to send his daughter to which he had said that if they kept her properly, he was ready to send her. Hence, they had taken his daughter to Veraval and her father-in-law had taken the responsibility of treating her well. Thereafter, for three to four months, his daughter was treated well. Subsequently, his daughter and son-in-law separated from her in-laws. Thereafter, he received news from people who were coming from Veraval that things had still not improved and that his son-in-law was not giving sufficient money for running the house and that despite the fact that they were residing separately, her husband s brother Pradip was coming and quarreling with her and abusing her. Thereafter, he had gone to his daughter s house at Veraval once and his daughter had told him that her husband was quarreling with him. He had, therefore, asked his son-in-law to stay together peacefully. When his wife expired, his son-in-law and daughter had come to his house at which point of time his son-in-law had told him that he needed Rs.2,000/-. He had informed him that since his wife had expired, he did not have the means to give him such an amount and that as and when he is in a position to arrange for such funds, he would give him the same. Thereafter, his daughter and son-in-law had left for Veraval. Within a period of one month since the last time his daughter had come to his house, she had sprinkled kerosene on herself and set herself ablaze. He has further deposed that his daughter had died on account of the harassment meted out to her by her husband.

10. In his cross-examination, it has been revealed that prior to her marriage, they were aware that his daughter would have to live in a joint family and that at the time of her death, a period of seven years of marriage had elapsed. He has further deposed that after her marriage, as and when she had any work, his daughter used to visit his house at Una. In his cross-examination, it has been revealed that a certificate of the Una Medical Officer had been issued on 10th January, 1986 diagnosing his daughter s mental condition. He has accepted that after a settlement was arrived at and his daughter s in-laws had taken her to her matrimonial home, his and his daughter s relations with his son-in-law had become normal. That thereafter, he always received good news in connection with his daughter from Veraval.

11. P.W.4 Aminaben Umarsha has been examined at Exh.16. She has deposed that the deceased and her husband were residing in her house as tenants. The said witness has been declared hostile as she has not supported the prosecution case.

12. P.W.6 Manilal Virjibhai has been examined at Exh.19. He had acted as a panch of the scene of offence panchnama. He also happens to be living in the neighbourhood. In his cross-examination, it has been revealed that he alongwith one Babubhai had doused the flames. Upon asking the deceased as to what had happened, she was not speaking. Thereafter, arrangements had been made to call her husband Dilipbhai who had come after half an hour. The deceased had not stated anything as regards how the incident had taken place. He has accepted that he had never heard or seen any kind of quarrel or dispute going on in the house of the deceased. When the police had come to record his statement, he had stated that he did not have any suspicion. If anything happens in the house of the deceased, the same could be heard at his house. On the day of the incident or on the previous day, nothing regarding her being beaten with a stick had been either heard or seen.

13. P.W.9 Dilipkumar Rameshchandra Agrawat has deposed to the effect that he had received a vardhi regarding Labhuben Dilipkumar Mochi having been admitted for treatment at the Municipal Hospital and her condition being serious. He had, therefore, gone to the said hospital and recorded the statement of the deceased who had stated that in the morning, her brother-in-law Pradip had hurled filthy abuses at her and had beaten her. At that time, her husband was also present but he had not restrained Pradip. Thereafter, her husband Dilip had also beaten her with a stick. Hence, she had taken the same to heart and having been subjected to physical and mental harassment, and as she was being beaten frequently, she wanted to die, and hence, she sprinkled kerosene on herself and tried to commit suicide. In his cross-examination, it has been revealed that when he went to the hospital, he had met the doctor. When he met the patient, it was around 11:15 a.m. He had asked the doctor as to whether the patient was in a position to give her complaint, whereupon the doctor had informed him that she was conscious. Hence, he had started recording the complaint. The first information report had been recorded between 11:00 to 11:30 hours and it had taken him twenty to thirty minutes to write down the same. The doctor had orally informed him that the patient was in a position to give a statement. He has accepted that he had not obtained any written endorsement of the doctor that the patient was conscious. He has further deposed that he had not requested for any injury certificate from the doctor. He has deposed that when he recorded the first information report, there was no sign on her thumbs of her thumbprint having been taken prior thereto.

14. A perusal of the first information report reveals that it is stated therein that the husband of the deceased was working as a cobbler in the name and style of Footwear near Lalji Mulji Transport. Her paternal home is at Una and her mother had expired. Her father is working as a cobbler at Una. Her mother-in-law, father-in-law and brother-in-laws are residing separately. In the morning at 9:30, her brother-in-law Pradip had come to their house and in the presence of her husband had given filthy abuses and had beaten her and thereafter left. After he left, her husband had argued with her and had told her that henceforth he would not eat at home and that he did not want to see her face and had beaten her with a stick on her hands, legs and body and had gone away from the house. After the incident took place, she was frustrated that her husband, time and again, without any reason, used to beat her and subject her to mental and physical harassment, he was not earning anything and on many occasions, she and her children had to go to sleep hungry. Being fed up with the frequent beating by her husband and having formed a belief that it was better to die than to suffer the daily beatings, in the morning at 10:30, when except for her children no one else was at home, she poured kerosene on herself and set herself ablaze. She has stated that she has taken the extreme step on account of the harassment caused to her by her husband and brother-in-law.

15. On an overall view of the evidence which has come on record it is revealed that two dying declarations of the deceased have been recorded, one by the Executive Magistrate between 12:10 to 12:20 hours on 22nd September, 1990. Before him, the deceased had stated that her brother-in-law had hurled filthy abuses at her and had inflicted blows on her and that she had sprinkled kerosene on herself and committed suicide. She has also stated that her husband used to beat her everyday in the evening and was not giving money for running the house and that in the morning, she had been given blows on her hand and leg with a stick, and hence, she had taken the extreme step. In the second dying declaration which has been recorded by the police officer between 12:30 to 12:55 hours, the deceased has given a detailed first information report setting out various details about what her husband and her father are doing. The main allegations regarding her brother-in-law having hurled abuses at her and beaten her up and her husband not providing her with food and subjecting her to mental and physical harassment are also there. In the first information report, it is further alleged that her husband had told her that he did not want to see her face and that he would henceforth not come home for meals and that he had beaten her on her hands, legs and body and had gone away from the house. These further facts are not reflected in the dying declaration recorded by the Executive Magistrate.

16. The dying declaration recorded by the Executive Magistrate bear the endorsement of the Medical Officer stating that she is conscious to give the dying declaration. The Medical Officer Dr. Pragjibhai Manjibhai Sonariya has deposed that at the time when the dying declaration was recorded, the patient was in a conscious state of mind and that he had made such an endorsement on the dying declaration. However, from the evidence which has come on record, it is revealed that at the time when the deceased was brought to the hospital at 10:45 a.m., she was unconscious and not in a position to give her history. From the testimony of the Medical Officer, it is revealed that within ten minutes of her being admitted to the hospital, she had been given an injection of a drug named Pathodene which would affect the mental stability of the patient. Such injection was given so that the patient would get the strength to bear the shock on account of the burn injuries. Thus, from the deposition of the Medical Officer, it is revealed that at 10:45 a.m. when the patient was brought to the hospital, she was unconscious and was not even in a position to narrate her history. However, when the dying declaration came to be recorded at 12:10 hours, the doctor had made an endorsement to the effect that she was conscious and fit to record her dying declaration. The evidence on record further reveals that both, the Executive Magistrate as well as the PSI who have recorded the first information report, have taken the thumb impression of the deceased on the dying declaration and the first information report. The record shows that the dying declaration was recorded prior to the first information report, inasmuch as, the dying declaration was recorded between 12:10 hours to 12:20 hours whereas the first information report was recorded between 12:30 to 12:55 hours. However, the PSI who has recorded the first information report has denied that the first information report had been recorded after the statement had been recorded by the Executive Magistrate. He has further stated that at the time when he took the thumb impression of the deceased, her fingers did not bear any ink mark.

17. Thus, an apparent contradiction has been brought on record whereby though from the timings of the first information report and the dying declaration, it is revealed that the dying declaration was recorded prior in point of time and the first information report was registered immediately thereafter, the PSI who has recorded the first information report states that there was no ink mark on the thumb of the deceased at the time when he took her thumb impression on the first information report. Under the circumstances, both, the dying declaration as well as the first information report, become suspect.

18. Besides, a perusal of the dying declaration reveals that the patient appears to be slightly incoherent inasmuch as she has narrated things in the present tense like her brother-in-law comes and abuses her and inflicts blows. The contents of the first information report are more in the nature of rambling by a person who is delirious. Having regard to the fact that the Medical Officer has deposed that the patient was subjected to injections which would affect her mental stability, it appears that the view taken by the learned Judge that the patient was not in a fit state of mind at the time when her dying declaration came to be recorded as no such endorsement was made by the doctor, is a plausible view and cannot be said to be perverse. From the deposition of the Executive Magistrate, it is revealed that he had not taken the opinion of the Medical Officer as to whether or not the patient was in a position to understand the questions which are put to her.

19. Thus, on an independent appreciation of the evidence which has come on record, it is not possible to state that the prosecution had established beyond reasonable doubt that the deceased was conscious and in a fit state of mind at the time when the dying declaration came to be recorded. Under the circumstances, it would not be safe to base a conviction solely on the dying declaration of the deceased. It is, therefore, necessary to examine as to whether the prosecution has led any evidence to corroborate the dying declarations given by the deceased. In this regard, reference may be made to the testimony of Muljibhai Punabhai, the father of the deceased. He, however, was not present at the time when the deceased was admitted to the hospital and reached there only after she had expired. Under the circumstances, he is not in a position to depose as regards the mental state of his daughter at the time when the dying declarations came to be recorded. From his testimony, it appears that there were disputes between his daughter and her in-laws on account of which he had brought her to his house. At that time, she had also been given treatment in respect of some mental illness and the doctor had also given a certificate dated 10th January, 1986 in respect thereof. Apparently, therefore, the deceased had undergone some treatment in respect of her mental condition. From the deposition of the said witness, it is further revealed that after his daughter was taken by her in-laws after settling the matter with them, things between her and her husband were normal. The aforesaid statement is required to be examined in the light of the depositions of the neighbours namely, Aminaben who has not supported the prosecution case as well as the witness Manilal Virjibhai who is a neighbour of the deceased and has stated that considering the proximity of his house to the proximity of the house of the deceased, it was possible to hear anything going on in the house of the deceased. That on the day of the incident, or even prior thereto, they had never heard any sounds of her being beaten with a stick. Under the circumstances, except for the bare say of the father of the deceased, there is no corroborative evidence brought on record in support of the allegations of harassment meted out to the deceased. In the aforesaid premises, it cannot be said that the prosecution has established beyond doubt that the deceased had committed suicide on account of the harassment meted out to her by the accused.

20. At this juncture, reference may be made to the decision of this court in the case of State of Gujarat v. Bharatbhai Balubhai Lad & Ors.

(supra) wherein the court has held thus:-

7. So far as the abetment made by the accused to the deceased to commit suicide is concerned, according to us, there is no evidence. It is a settled legal provision of law that for bringing home the charge under Sec. 306 of I.P.C., there must be some evidence adduced on record showing that soon before the incident there was some harassment and torture to the deceased at the hands of the accused. Sec. 107 of I.P.C. Is with regard to the abetment and as per the provisions of this Section, there must be some evidence that soon before the incident there must be some incident due to which she was prompted, instigated or abetted to commit suicide.

9. The principle of law which has been explained in each of the above-referred judgments of the Supreme Court is that before a person can be held guilty for abetting the commission of suicide, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended the consequences of the act namely suicide and abetted the suicide within the meaning of Sec. 107 of I.P.C. Mere harassment or cruelty which drags the woman to commit suicide is not sufficient to constitute the offence under Sec. 306 of I.P.C.

10. Applying the principle laid down by the Supreme Court in above-referred to judgments to the facts of instant case, we are of the considered opinion that mere allegations which are general in nature with regard to the deceased was subjected to mental and physical cruelty at the hands of the accused, offence under Sec. 306 cannot be proved.

21. Having regard to the principles enunciated in the decisions referred to hereinabove, it is apparent that the dying declaration of the deceased is not sufficient to bring the acts of the respondents within the ambit of section 306 I.P.C., inasmuch as, merely on the allegation of harassment to the deceased, the ingredients of abetment are not constituted. Before a person can be held guilty for abetting the commission of suicide within the meaning of section 107 I.P.C, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended that suicide should be the consequence of their acts.

In the facts of the present case, the prosecution has failed to establish beyond reasonable doubt the charge under section 306 I.P.C.

22. As regards the charge under section 498-A I.P.C., it may be germane to refer to the decision of the Supreme Court in the case of Girdhar Shankar Tawade (supra) wherein the court has held that if suicide is ruled out then in that event the applicability of section 498-A can be had only in terms of Explanation

(b) thereto which in no uncertain terms records harassment of the woman and the statute itself thereafter clarifies it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce 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.

23. In the facts of the present case, as noted hereinabove, the ingredients of section 306 I.P.C. are not attracted in the present case. Under the circumstances, section 498-A would be applicable in the facts of the present case only in terms of Explanation (b) thereto. On the evidence which has come on record, namely the dying declarations of the deceased as well as the deposition of her father, there is no material whatsoever to demonstrate that any unlawful demand for any property or valuable security had been made by the accused. Under the circumstances, there is total absence of any of the requirements of the statute in terms of section 498A of the Indian Penal Code.

24. In the light of the above discussion, it is apparent that the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt. Besides, even if on the same set of facts it may be possible to take a different view, it is settled legal position as held by the Supreme Court in Mahendra Pratap Singh (supra) that if on appraisal of the evidence and on considering the relevant attending circumstances, it is found that two views are possible, one, as held by the trial court, for acquitting the accused and the other for convicting the accused, in such a situation, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable and perverse or unsustainable, the High Court should not interfere with the order of acquittal.

25. In the facts of the present case, for the reasons recorded hereinabove, it cannot be said that the conclusions drawn by the trial court are in any manner unreasonable and perverse so as to warrant interference.

26. In the result, the appeal fails and is accordingly dismissed.

( Harsha Devani, J. ) hki Page of 24

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