Safimahmad Ibrahim Vora Vs. State of Gujarat - Court Judgment

M.S. Parikh, J.

1. This appeal is directed against the judgment and order of conviction and sentence dated 11th August, 1989 passed in Sessions Case No. 227 of 1988 by the learned Additional Sessions Judge, District Kheda at Nadiad. The appellant-accused was convicted for the offences punishable under Sections 306 and 498A of the Indian Penal Code ('I.P.C.' for short) and sentenced to rigorous imprisonment for five years and fine of Rs. 200/- in default rigorous imprisonment for one month, for the offence under Section 306 of I.P.C. and rigorous imprisonment of one year and fine of Rs. 100/-, 15 days' rigorous imprisonment in default, for the offence under Section 498A of the I.P.C.

2. Briefly according to the prosecution case Shahida and accused Safi Mahmad Ibrahim had more than 15 years of married life and had a son of about 10 years. It is alleged that the accused who was previously serving with Vallabh Glass Factory at Vidyanagar, was relieved from his job about 2 to 3 years before the date of the incident and was rendered jobless and had gone astray. As per the evidence of parents of Shahida, namely (i) Ibrahimbhai Kasambhai (P.W. 2 - Exh. 21) and (ii) Hajraben Sabankarim (P.W. 3 - Exh. 22) Shahida was ill-treated by the appellant-accused. According to them so long as the appellant-accused had the job, the relations between him and Shahida were quite good, however, after the appellant-accused was rendered jobless he started frequently demanding money from Shahida, whereupon Shahida used to visit her parents' house and to inform them about demand of money from her husband. Thereupon the parents of Shahida were giving some money to her. Shahida also informed them that whenever she refused to give money, the appellant-accused was quarrelling with her. About 8 months before the incident, Shahida had gone to her parents' house and informed her parents that the quarrel was going on in the house and, therefore, she desired to stay with them. Shahida, therefore, stayed over at her parents house for about 2 to 3 months. Thereafter, the parents-in-law of Shahida had gone to the house of parents of Shahida and requested them to send Shahida, assuring them that no such quarrel would take place again. On said assurance Shahida returned to her matrimonial home. After her stay for a month at Bakrol, she went back to her parents' house and told her parents that she wanted to start a grocery shop and for that some provision should be made. Usmanbhai, her brother, gave her about Rs. 1500/- for opening the shop and Shahida after going to Bakrol opened the shop of miscellaneous grocery articles in the house where she was residing. The appellant-accused used to visit her at the interval of 2 to 3 days and after having his meals he was taking away the profit earned by Shahida. Some time thereafter the original accused Nos. 2 and 3 requested Shahida to go to some other house as they wanted to take the shop wherein Shahida was carrying on her small business. Shahida on taking the stand that she had opened the shop in her own house and that she would reside there only, the quarrel started and lasted for about 2 to 4 days. Thereafter the appellant-accused alongwith his brother and sister (original accused Nos. 2 and 3) started beating Shahida. It is also alleged in the evidence of the aforesaid two witnesses that when Ibrahim Kasambhai (P.W. 2) reached Kanjari at about 3-00 p.m. on the date of the incident, i.e., 28th June, 1988 his son Mahmand told him that Shahida had been burnt. On hearing this, the witness went to the Government hospital at Anand where the dead-body of the Shahida was lying with the burns all over her body. His complaint came to be recorded in the hospital. On the basis of the complaint, the accused came to be arrested and after the investigation was over they came to be charge-sheeted for the offences under Sections 302, 498A and 114 of I.P.C. before the Sessions Court at Nadiad.

3. Originally the charge under Sections 498A, 114 and 302 of I.P.C. was framed on 3rd April, 1989 at Exh. 3. Plea of the accused persons came to be recorded as per Exh. 4. All the 3 accused including the appellant-accused pleaded not guilty to the charge and claimed to be tried. It appears from the question No. 70 put up by the trial Court under Section 313 of the Criminal Procedure Code, the appellant-accused stated that on 28th June, 1988 at about 10-30 a.m. the appellant-accused No. 1 had gone to the Police Station and informed to P.S.I. Shri Rajput that his wife Shahida had committed suicide by sprinkling kerosene over her body. After the statements of the accused persons were recorded and after fully hearing the prosecution and the defence, the trial Court by order dated 10th August, 1989 appearing at Exh. 53 framed additional alternative charge under Section 306 of the I.P.C. and the plea in respect thereof of the accused-persons including the appellant was recorded. Both the sides, namely, the prosecution and the defence opted not to recall any of the witnesses or to lead any further evidence.

4. The learned Addl. Sessions Judge after duly appreciating the prosecution evidence on record, while acquitting appellant-accused of the charge under Section 302 of the I.P.C. convicted and sentenced him for the offence under Sections 306 and 498A of the I.P.C. as stated above. The learned Addl. Sessions Judge acquitted the other two accused persons of the charges levelled against them. The appellant has come in appeal against the judgment of conviction and sentence passed against him.

5. Mrs. Amy Yagnik, learned Advocate appearing for the appellant-accused while challenging the impuged order of conviction and sentence has made following two submissions:

(1) That there is no reliable evidence to connect the accused with the alleged offences under Sections 306 and 498A of the I.P.C.

(2) That the offence of murder under Section 302 of the I.P.C. and the offence of abetting the commission of suicide under Section 306 of I.P.C. being entirely different, distinct and inconsistent, it was patently illegal and erroneous for the trial Court to club the said two offences together.

6. It would be appropriate first to deal with the submission with regard to the offence of cruelty as per Section 498A of I.P.C.

Cruelty As Per Section 498A of I.P.C.: Two questions stare at us when we are required to deal with the prosecution evidence qua the provision contained in Section 498A of I.P.C. (i) Has the provision contained in Section 498A of I.P.C. yet not reached the eyes, ears and intellects of a common man? (ii) Has this provision yet not touched the minds of the persons dealing with a married woman as a chattel?

7. The above are the questions which make us to reproduce the provision I confined in Section 498A of I.P.C. It reads:

498A. Whoever, being the husband or the relative of husband of a woman, subjects such woman to cruelty shall be punished with imprisonment tor a term which may extend to three years and shall also be liable to fine. Explanation: For the purpose of this section 'Cruelty' means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or damage to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing 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.

On a plain reading of the aforesaid provision, it clearly appears that cruelty to a wife by her husband or the relative of husband is now made punishable. The provision was introduced by way of a separate Chapter, namely. Chapter XXA with the title 'Cruelty by husband or the relatives of the husband' by the Criminal Law (Second Amendment) 1983 (Act No. 46 of 1983) with effect from 25-12-1983.

8. The provision contained in explanation define 'cruelty' for the purpose of the substantive provision laying down the punishment for the offence. Accordingly for the purpose of the newly added provision contained in Section 498A: (i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or damage to life, limb or health, would amount to cruelty within the meaning of the term 'cruelty' appearing in the main provision. The word 'cruelty' would also mean as per Clause (b) - harassment of the woman where such harassment is with a view to coercing 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.

9. It has now to be seen whether the learned Addl. Sessions Judge has rightly found the accused-appellant guilty of the offence covered by the aforesaid provision. It may be noted that the evidence consisted not only of the relatives of deceased Shahida, but it also consisted of the circumstances disclosed from other evidence.

10. It would be appropriate to state at this stage a synopsis of the evidence placed on the record of the case.

(i) Evidence consisting of the evidence of panch witnesses and the Panchnama:

(a) Inquest Panchnama Exh. 8,

(b) The Panchnama of the clothes of the accused Exh. 9,

(c) The Panchnama of the clothes of deceased Shahida Exh. 12,

(d) Scene of offence Panchnama Exh. 36,

(e) Oral testimony of Yusufbhai Husenmiya P.W. 8 Exh. 38, who turned hostile,

(f) Sketch of the place of offence Exh. 41,

(g) The evidence of Circle Inspector Mr. Khodabhai Lallubhai Bhoi, P.W. 9 - Exh. 40.

(ii) Oral evidence of the relatives of Shahida:

(a) Oral testimony of father of deceased Shahida P.W. 2 - Exh. 21,

(b) Oral testimony of mother of deceased Shahida P.W. 3 - Exh. 22,

(c) Oral testimony of brother of deceased Shahida P.W. 6 - Exh. 32,

(d) Oral testimony of Isubbhai Ismailbhai, eye witness - relative of deceased Shahida, P.W. 4-Exh. 23, who has not been relieved by the learned Addl. Sessions Judge.

(iii) The evidence of independent witnesses consists of:

(a) Oral testimony of social worker Ashaben Kanaiyalal Dalai, P.W. 5 - Exh. 27, who produced the application given by deceased Shahida, appearing at Exh. 29,

(b) Oral testimony of P.W. 1 Dr. Champaklal Ochchhavbhai Patel, Exh. 16, the medical witness, who performed the post mortem of dead body of deceased Shahida,

(c) F.S.L. report Exh. 59.

11. The learned Addl. Sessions Judge after considering and discussing at length the aforesaid evidence came to the conclusion that the evidence of the only eye witness was not only believeable but was subsequently cooked up in so far as the charge under Section 302 of the I.P.C. was concerned. There was, however, abundant evidence for establishing the charge under Section 498A of the I.P.C. As per the evidence noted above, he came to the conclusion that during the period of three years before the date of incident, the appellant-accused did not undertake any occupation in order to maintain his family. He made frequent demands of money from his wife Shahida. He tortured and harassed her by pursuing such demands. On one occasion she was required to leave her matrimonial home and she was called back after assurance that she would not be ill-treated. She was frequently beaten by the accused-appellant. The event of the cruelty with which deceased Shahida was subjected by him increased day by day. Ultimately Shahida was required to start her small business of grocery in the residential house where she was alleged to have terminated her life. Attempt was made to drive her out of that house. On 27-6-1988, i.e., a day prior to the day of incident she was required to approach the institution, namely, Jagruti Manila Sangathan headed by its Chairman witness Ashaben Kanaiyalal Dalai. She was required to give an application to the said social worker on that day about how she was driven out of the house and showing the fact that accused-appellant had developed illicit relations with some other woman. She also stated the facts with regard to how she was tortured by her husband.

12. We have been taken through the whole of the evidence noted above. We do not agree with the submission that there is no independent, cogent and convincing evidence led by the prosecution for bringing home the charge of cruelty under Section 498A of the I.P.C. We find that the learned Addl. Sessions Judge has rightly appreciated the evidence. There is no reason to disturb his conclusion that the cruelty of the nature described in the explanation to Section 498A of the I.P.C. was established beyond reasonable doubt against the accused-appellant. This appeal in so far as the conviction and sentence under Section 498A of the I.P.C. is concerned should fail.

13. In so far as the conviction and sentence under Section 306 of the I.P.C. is concerned, Mrs. Amy Yagnik, learned Advocate for the appellant-accused submitted that the offence of murder under Section 302 of I.P.C. and the offence of abetting suicide under Section 306 of I.P.C. being entirely different, distinct and inconsistent, it was patently illegal and erroneous for the trial Court to club the two inconsistent charges in respect of the said offences. Her further submission was that there was no independent, cogent and convincing evidence to bring home the alleged charge of abetment of suicide under Section 306 of the I.P.C. According to her the alternative charge under Section 306 of I.P.C. could not therefore, have been framed at the fag end of the trial when the prosecution came out with allegations of asserted and unambiguous facts of homicide for the purpose of alleging offence punishable under Section 302 of I.P.C.

14. For the purpose of appreciating the aforesaid submission, it would be appropriate to set-out the provisions contained in Sections 218 and 221 of the Code of Criminal Procedure. Both the provisions read as under:

218. (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.

(2) Nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.

221. (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

It has been submitted on behalf of the appellant-accused that by no stretch of imagination it can he said that the offence under Section 302 of I.P.C. and offence under Section 306 of I.P.C. are co-related or would arise from same set of facts. In an offence punishable under Section 302 of I.P.C. a person is not putting an end to his or her own life, but some one else puts an end to his or her life. In case of offence punishable under Section 306 of I.P.C. a person himself or herself puts an end to his or her life. Thus the act which would make up an offence punishable under Section 302 of I.P.C. is different and distinct from the act which would make up the offence punishable under Section 306 of I.P.C. There is one more step in so far as application of Section 306 of I.P.C. is concerned. For the purpose of charging to some other person for the commission of the offence punishable under Section 306 of I.P.C. abatment has to be alleged and established. To put the submission in a simple form, the offence of murder is quite different and distinct from the offence of the abetment of commission of suicide. Both cannot stand together, side by side.

15. On a reference to the above referred provisions of Code of Criminal Procedure, what is important to be borne in mind is that the prosecution must not have any doubt as to a single act or series of acts which would constitute the transaction. The doubt must be as to the inference to be deduced from the facts comprising the transaction, thus making it doubtful which of several offences the facts which can be proved will constitute. It is, therefore submitted that the facts comprising commission of offence punishable under Sec302 of I.P.C. are incompatible with the facts comprising commission of offence punishable under Section 306 of I.P.C. To substantiate the aforesaid submission, reference is made to the Supreme Court decision in the case of State of West Bengal v. Laisal Hague : 1989CriLJ865 . Head note (A) speaks of Sections 218 and 221 of Code of Criminal Procedure (2 of 1974) and reads:

Section 218 embodies the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person have notice of the charge which he has to meet.

Section 221 which is an exception to Section 218 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person. There must not be any doubt as to a single act or series of acts which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it 'doubtful' which of several offences the facts which can be proved will constitute.

16. In the present case the prosecution was not at all in doubt about the facts forming the transaction to which Section 302 of I.P.C. would be attributable. A positive charge was framed under Section 302 of I.P.C. against the accused. The facts which were positively alleged by the prosecution were that the appellant-accused was treating his wife with cruelty as particularised hereinabove, that on the Fateful day at about 8-00 O'clock in the morning the accused aided by the other two accused dragged her into the house (from where her dead body was found), sprinkled kerosene on her and committed her murder by burning her aliveSuch facts were disclosed from the statement of the solitary eye witness Mr. Isubbhai Ismailbhai P.W. 4 - Exh. 23. Merely because, after the statement of the accused persons were recorded and before the matter was proceeded further with the arguments, it was felt that the evidence of this eye witness was not believeable, alternative charge of distinct and different offence punishable under Section 306 of I.P.C. could not have been framed without on the face of it causing prejudice to the accused. It has been submitted that it would be redundant and useless to afford any opportunity when the statements were recorded as per the original charge. The accused was on the face of the course adopted by the Court, embarrassed. The order passed by the learned Addl. Sessions Judge at Exh. 55 for addition of an alternative charge under Section 306 of I.P.C. was, therefore, not just and proper.

17. Learned Addl. P.P. submitted that the Court was empowered to add to or to alter the charge under Section 216 of the Code of Criminal Procedure. It is true that the Court is so empowered. At the same time, the order Exh. 55 indicates that the charge for the offence punishable under Section 302 of I.P.C. is maintained and as an alternative thereof, charge under Section 306 of I.P.C. is added. It has been laid down by the Supreme Court in the case of Kantilal v. State of Maharashtra : 1970CriLJ510 , that the Criminal Procedure Code gives ample power to the Courts to alter or amend a charge whether by the trial Court or by the appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him (Emphasis supplied).

18. In the present case at about 10 O'clock in the morning on the fateful day appellant-accused approached Vidhyanagar Police Station and gave information that upon having been asked to go to her parents' place to reside with them, his wife met with death on account of burns. Thus he had disclosed certain facts at the earliest point of time. Those facts obviously meant to convey that Shahida had committed suicide. Even in his statement under Section 313 of Criminal Procedure Code he had admitted the fact of Shahida having committed suicide. Now after Shahida had given her application to the social worker Ashaben, Exh. 27 on 27-6-1988, i.e., a day prior to the fateful day, she had some occasion to get into the house where she was staying and running a grocery shop. The investigation and the evidence remained silent about what happened thereafter till upto the time when she ended her life, the learned Addl. Sessions Judge, after having come to the conclusion that Shahida was cruelly treated by the appellant-accused, proceeded to presume that he must have either instigated Shahida or facilitated her to commit suicide. This is precisely what is not warranted by the provision of law. The marriage of the appellant-accused and Shahida was about 15 years old. Therefore, there was no question of drawing any presumption arising from the newly added provision of Section 113A of the Evidence Act, which reads as under:

When the question is whether the commissions 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.

19. Under the aforesaid circumstances, merely because the evidence of solitary eye witness with regard to the facts making up an offence punishable under Section 302 of I.P.C. was found to be not acceptable or believeable, there was no legal and valid justification for framing an alternative charge for a new and distinct offence under Section 306 of I.P.C. almost at the fag end of the trial.

20. In our view the facts and circumstances noted above as well as the stage at which the alternative charge was added call for the appellation of principle laid down by the Supreme Court in the case of Kantilal v. State of Maharashtra (supra) and in the case of State of West Bengal v. Laisal Hague (supra). We accept the submissions made on behalf of the defence and find that no amount of opportunity could cure the embarrassment or the prejudice that was likely to be caused by proposed alternative charge for altogether a different and a distinct offence arising from a different act or series of acts. The very order Exh. 55 and consequent addition of alternative charge, deserve to be quashed as being not in accordance with law. That being the position, the conviction and sentence of the appellant-accused under Section 306 of I.P.C. would not be legal and proper and would have to be quashed and set aside.

21. In view of the above discussion, the appeal is partly allowed. The impugned judgment and order of conviction and sentence in so far as the offence punishable under Section 306 of I.P.C. is concerned, are hereby quashed and set aside. The conviction and sentence in so far as the offence punishable under Section 498A are concerned, are confirmed. Since the appellant-accused has already undergone the sentence, he is ordered to be released forthwith, if not required for any other case.

(Rest of the Judgment is not material for the Reports).