ABEDALI JAMINALI Vs. STATE OF GUJARAT
LAWS(GJH)-2016-8-88
HIGH COURT OF GUJARAT
Decided on August 05,2016

Abedali Jaminali Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.) The present appeal, under Section 374 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code'), is directed against the judgment and order dated 11/01/2000, passed by the learned Additional Sessions Judge, Court No. 8, City Sessions Court, Ahmedabad, in Sessions Case No. 52 of 1997, whereby, the appellant herein - original accused came to be convicted for the offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and for the offence punishable under Section 498A of the IPC, he was sentenced to undergo rigorous imprisonment (RI) for three years and a fine of Rs.500/ and in default of payment of fine, to undergo, further RI for fifteen days, whereas, for the offence punishable under Section 306 of the IPC, to undergo RI for five years and a fine of Rs.1,000/ and in default of payment of fine, to undergo, further RI for one month.
(2.) Facts in nutshell of the prosecution case are that on 01/06/1996, Khurshidbanu, the deceased wife of the appellant herein - original accused namely Abedali Jaminali, gave a complaint to Vatva police, Ahmedabad mainly alleging that her marriage took place with the accused before eight years and she was residing with her husband, three children born out of the said wedlock and the motherinlaw and the brotherinlaw. Her husband, the appellant herein - original accused was running a pan galla, which he had given on rent for about last one year to the date of incident. Her motherinlaw was begging and helping in the house. When her marriage took place, the accused was without any work and whenever, he needed money, he used to give physical and mental torture to the deceased , which, she was tolerating for all these years after marriage. On 26/05/1996, the appellant - accused had to go Ajmer for praying for which, he had sold out the wrist watch and after returning home, he told his wife, the deceased, that since he had sold the wrist watch, bring Rs.900/ from your father as he wanted to purchase the new one. The accused also allegedly threatening her that he would not allow her to go to her parental house and would cutoff the relations with them and by saying so, he used to beat her. From last three days of the incident in question, the appellant accused allegedly to have been giving the physical and mental torture to the deceased and telling her to bring Rs.900/ to purchase the wrist watch. On the day of incident also, in the morning, the appellant - accused allegedly quarreled with her and beaten her on the said count and as the same had become unbearable, the deceased took the extreme step and committed suicide by pouring kerosene and set her ablaze and died in the hospital during treatment. Thus, the appellant - accused committed the offence alleged against him, for which, a complaint came to be lodged for the offences punishable 498A and 306 of the IPC. For the sake of convenience, the parties herein are referred as per their original status. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed charge against the accused, which was read over to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: JUDGEMENT_88_LAWS(GJH)8_2016.htm
(3.) Heard Mr. M. M. Tirmizi, the learned advocate for the appellant - original accused and Mr. K. L. Pandya, the learned Additional Public Prosecutor for the respondent - State. 3.1 Mr. Tirmizi, the learned advocate for the appellant - accused submitted that the trial Court has committed a grave error in convicting the accused; the impugned judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence alleged against the present appellant - accused. He took this Court through the oral as well as the entire documentary evidence on record, more particularly, the depositions of PW1 Saiyad Hussainmiya Haidermiya, the father of the deceased, at exh. 10, PW2 Saiyadkhatun Hussainmiya Bukhari, the sister of the deceased, at exh. 11, PW3 Abzalhussain Hussainmiya Bukhari, the brother of the deceased, at exh. 12 and contended that these witnesses, who are the blood relations of the deceased, have not supported the case of the prosecution and they have been declared as hostile. Moreover, from the crossexamination of the said witness by the prosecution, nothing substantial has come out so as to connect the accused with the crime. Moreover, drawing attention of the Court to the deposition of PW5 Nasirhussain Khilafathussain Bukhari, the panch witness of the Panchnama of place of offence at exh. 15, recorded vide exh. 26, submitted that, this witness has also not supported the case of the prosecution. The learned advocate for the accused then invited attention of the Court to the deposition of PW4 Jagdish Sunderlal Parmar, the Executive Magistrate at exh.23 as well as the Dying Declaration of the deceased at exh. 25 recorded by him so also the deposition of PW6 Ramkumarsinh Jagatpalsinh Rajput, the Investigating Officer who had also recorded the complaint given by the deceased immediately after the incident in question, at exh. 27, the deposition of two doctors viz. PW7 Dr. Kamlesh Prahladbhai at exh. 29 and PW8 Dr. Pratimaben Bharatkumar Oza at exh. 35 and submitted that, as such, so far as ingredients of offence punishable under Section 498A of the IPC are concerned, he is not submitting much on the said aspect and considering the fact that maximum punishment prescribed for the said offence is awarded by the trial Court, he requested to reduce the sentence to the period already undergone by the accused i.e. of approximately 13 months. 3.2 So far as offence punishable under Section 306 of the IPC is concerned, the learned advocate for the appellant - accused submitted that the ingredients of the said offence have not, at all, been proved by the prosecution and there is no direct or indirect evidence is forthcoming on record to show that the accused had induced the deceased to take such an extreme step and there appears no incriminating material to show incitement, conspiracy and/or intention/ mens rea and thus, the conviction imposed upon the accused for the offence punishable under Section 306 of the IPC is bad in law, more particularly, there is no evidence forthcoming on record. Moreover, when the near relatives of the deceased have not supported the case of the prosecution, the impugned judgment and order may be quashed so far as conviction for the offence punishable under Section 306 of the IPC is concerned. 3.3 In support of his submissions, the learned advocate for the accused has relied upon following decisions: 3.3.1 Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 1 SCC 750, more particularly, para 17, which reads as under: "17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide." 3.3.2 Kishori Lal Vs. State of M.P., 2007 10 SCC 797, more particularly, the Head Note 'B', which reads as under" "B. Penal Code, 1860 - S. 107 and S. 109 - Abetment - Ingredients - Held, the offence of abetment is a separate and distinct offence provided in IPC and a person abets the doing of a thing by instigation conspiracy or intentional aid - Where act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished for the punishment provided for the original offence "Abetted" means specific offence abetted - Hence, offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence". 3.3.3 Ramesh Kumar Vs. State of Chhattisgarh, 2001 9 SCC 618, more particularly, para 22, which reads as under: "22. Sections 498A 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 498A 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. However, merely because an accused has been held liable to be punished under Section 498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing form the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improbablises the theory of his having abetted suicide." 3.4 Making above submissions, he requested to allow the present appeal by reducing the sentence to the period he had already undergone so far as offence punishable under Section 498A of the IPC is concerned and acquitting the appellant - accused from the charge for the offence punishable under Section 306 of the IPC.;


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