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2006 Supreme(Guj) 185
Gujarat High Court
Judgename :A.M.KAPADIA, ABHILASHA KUMARI
STATE OF GUJARAT - Appellant
Versus
KALAVATIBEN LILADHAR - Respondent
CRIMINAL APPEAL 1526 Of 2003
Decided On : 03/10/2006
Headnote:Indian Penal Code, 1860 - Sections 306 and 498A - Accused, Sister of husband of deceased, tried on charges - Trial Court found that deceased died suicidal death but prosecution failed to prove that accused instigated and abetted deceased to commit suicide - State appeal - Informant, father of deceased, had turned hostile during trial - Deceased had shifted to a house near house of accused about two months prior to incident - Deceased had set herself on fire by pouring kerosene oil - In dying declaration recorded by Magistrate she stated that accused was every day quarrelling with her and instigated her brother i.e. husband of deceased - A reading of dying declaration revealed that quarrel between deceased and accused was nothing more than usual wear and tear in course of domestic interaction - It suggested no act of cruelty by accused upon deceased which could have led her or instigated her to commit suicide - Acquittal called for no interference.
Held : On conjoint reading of the testimony of P.W.4 and the dying declaration Exhibit-18 it is seen that the deceased came to reside at Rajkot near the house of the accused only two months before the incident. The accused is not residing with the deceased and is residing separately in her own house. No offence has been registered against the husband of the deceased and there is no evidence to the effect that the husband of the deceased has succumbed to the alleged instigation by the accused and committed any act of cruelty on the deceased. Moreover, it seems that the quarrel between the deceased and the accused was nothing more than the usual wear and tear in the course of domestic interaction. There is not an iota of evidence, leave alone any reliable or trustworthy evidence, to the effect that there were any acts of cruelty, either physical or mental, committed by the accused upon the deceased, which could have led her or instigated her to commit suicide. Neither is there any evidence on record that there was any demand for dowry. The alleged harassment which has been referred to by the deceased in the dying declaration does not appear to be of an incessant, persistent and unbearable nature, which could have led her to take the extreme step. (Para 14)
It is a settled proposition of law that for bringing home the charge under Sections 498-A and 306 of IPC, 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 IPC 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. In the instant case, no such evidence is forthcoming. Therefore, there is no evidence adduced on record showing that soon before the incident any other incident took place due to which she was instigated or abetted to commit suicide. (Para 15)
(ii) Criminal Procedure Code, 1973 - Section 378 - Appeal against acquittal - If other view is possible, appellate Court cannot substitute its own view by reversing acquittal into conviction unless findings of trial Court were perverse and contrary to material on record.
Result : Appeal dismissed.
( 1 ) THIS appeal under Section 378 of the criminal Procedure Code has been filed by the appellant -State of Gujarat, being aggrieved by the judgment and order dated 5. 9. 2003 of the learned Additional Sessions Judge, 6th Fast track Court, Rajkot in Sessions Case No. 193 of 1994, whereby the respondent " original accused (for short accused ) has been acquitted of the offences punishable under Sections 498 (A) and 306 of the Indian Penal Code (for short ipc ).
( 2 ) BRIEFLY stated the case of the prosecution,as culled out from the material on record, is that the deceased Tulshaben alias tulsiben was married to one Premjibhai, who is the brother of the accused. Two months prior to the incident the deceased and her husband had come to reside near the house of the accused on street No. 5, Santkabir Road, Gokulnagar, rajkot. It is the case of the prosecution that the accused used to frequently quarrel with the deceased on the issue of sharing water from the water tap. The accused was physically and mentally harassing the deceased.
( 3 ) ON the day of the incident i. e. 28. 2. 88 at about 12 noon the deceased committed suicide by pouring kerosene and setting herself on fire, allegedly due to the physical and mental cruelty inflicted upon her by the accused, which she could not bear any longer.
( 4 ) ON these facts, the complaint was filed by the father of the deceased, namely, Jethalal damjibhai. On the basis of this complaint, the fir was registered against the accused in the b Division Police Station, Rajkot vide c. R. No. 70/88. Pursuant to the registration of the complaint, the investigation was put into motion. During the course of investigation, inquest was held on the dead body of the deceased, which was sent for autopsy, panchanama of the scene of offence was prepared, statements of witnesses were recorded. At the end of the investigation, as sufficient incriminating evidence was found against the accused, she came to be charge-sheeted before the learned Judicial magistrate,first Class, Rajkot. As the offence under Section 306 of the IPC is exclusively triable by the court of Sessions, the learned magistrate committed the case to the Court of sessions, Rajkot, which came to be registered as Sessions Case No. 193/94. The learned addl. Sessions Judge, to whom the case was made over for trial, framed necessary charges against the accused, which were read over and explained to her. Accused pleaded not guilty to the charges and claimed to be tried and was put to trial.
( 5 ) IN support of the case of the prosecution as many as seven witnesses were examined and nine documents were produced, details of which have been narrated by the learned trial Judge in paras 3 and 4 of the impugned judgment.
( 6 ) AFTER the recording of the evidence of the prosecution witnesses was over, the learned trial Judge explained to the accused the circumstances appearing against her in the evidence of the prosecution witnesses and recorded her further statement under Section 313 of the Cr. P. C. In the further statement she denied the case of the prosecution in toto.
( 7 ) AT the end of the trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned trial Judge came to the conclusion that the prosecution has been able to establish that the deceased tulshaben died a suicidal death. However, the prosecution failed to prove beyond reasonable doubt, that the accused had instigated and abetted the deceased to commit suicide and that the deceased was subjected to physical and mental cruelty at the hands of the accused prior to the incident,which led her to commit suicide. On this finding, the learned trial judge acquitted the accused of the offences with which she was charged, which has given rise to the present appeal.
( 8 ) WE have considered the submissions and also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is re
