2008 Supreme(Guj) 333

2009(1) GCD 310(Guj)(DB)
Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice J.C. Upadhyaya
Rajendrabhai D. Makwana & Ors.
Versus
State of Gujarat
Criminal Appeal No. 806 of 2002—Decided on 08-10/10/2008

Whether the conviction punishable under Sections 306 and 498-A of Indian Penal Code can be upheld ?

Headnote:Head Note :

       Criminal Procedure Code, 1973(Central Act 2 of 1974) — Suicide — Conviction — Under Section 306 and 498-A of the Indian Penal Code — Contended that the chit Exhibit 45 about suicide written by red and blue pencil which is a rare articles of these days — Inquest panchnama does not speak of the presence of chit on the person of the dead body — Dead body was lying unattended for a long time at the hospital before post mortem during which time the socalled suicide note could have been planted — No evidence to indicate that the so called natural writings were that of the deceased — The conduct of the first informant is unnatural as having rushed to the police station for registering FIR rather than rushing to his daughter on hearing about the deceased committed sucide — Held that the evidence of Dr. Gupta who had performed post mortem statement letter was in the bra, he handed over other articles with this chit to constable he is an independent witness no reason to favour the prosecution and falsely involved accused — Further post mortem room is surrounded by bushes and theory of planting by sombody is meted out — Further held that chit Exhibit 45 is proved like dying declaration by the evidence of hand writing expert he is also an independent witness he opined that the writings in chit Exhibit 45 are the writing of the same person send with the natural writings of the deceased in room of a note book, these are more or less of the nature of public documents and non challenged by the accused — Further held that the allegation that red and blue pencils are rare to be found these days would spill into insignificance as it is found that Exhibit 45 is written by the deceased — Further held that Exhibit 45 chit does not refer to the insedients envisaged under Section 107 of IPC — So conviction under Section 306 of IPC cannot be sustained — Conviction under Section 498-A confirmed — Appeal partly allowed.

       Held :

       If the contents of Exhibit 45 are seen, Court find that it was written in close proximity of time of the incident. The last sentence says that for the reasons stated in the earlier part of the suicide note, the deceased was committing suicide. These words would indicate that it must have been written soon prior to the commission of suicide by the deceased. [Para 13]

       Court finds that Exhibit 45 does not refer to the ingredients envisaged under Section 107 of the IPC. It is also to be noted with emphasis that since the marriage span was for a period of more than 7 years, presumption under Section 113-A and B would not be attracted. The other evidence led by the prosecution also does not indicate presence of any of the ingredients of Section 107 of the IPC and, therefore, in our view, the conviction of the appellants by the trial Court for offence punishable under Section 306 of the IPC cannot be sustained. [Para 15]

       The conviction under Section 498-A of the IPC is concerned, it is clear from Exhibit 45 that the appellants, other than Appellant No. 1, were responsible for the harassment meted out to the deceased. Deceased Lila has not made any allegation against Appellant No. 1 in the suicide note. However, the evidence of the first informant, his son and his wife, besides the oral evidence of neighbours, would go to show that for last quite sometime the deceased was being subjected to harassment and cruelty, Court find ring of truth in the evidence of these witnesses for the reason that a lady pregnant of 4 months and mother of a minor son aged about 7 years would not commit suicide unless there is extreme harassment and torture to her and for that purpose she herself points at the appellants other than Appellant No. 1. Considering the evidence as a whole, we are of the view that the trial Court was justified in holding that the charge for an offence punishable under Section 498-A was duly proved by the evidence led by the prosecution in form of suicide note Exhibit 45 and other oral evidence and the same, therefore, deserves to be upheld. [Para 17]

       Law Laid Down :

       Evidence of Doctor and hand writings experts are independent and no reason for them to favour the prosecution and falsely involved accused.