2009 ALL MR (Cri) JOURNAL 330


Jagdishbhai Popatbhai Khokhani Vs. State Of Gujarat

Crl. Misc. Appln. No.7988 of 2008

24th November, 2008

Petitioner Counsel: B. M. MANGUKIYA and Ms. BELA A. PRAJAPATI
Respondent Counsel: MAULIK NANAVATI

Criminal P.C. (1973), S.439 - Bail - Applicant charged for offences under Ss.306, 504, 598-A and 114 of Penal Code and Ss.3 and 7 of Dowry Prohibition Act - Deceased wife 10 years after marriage consumed poison - Two minor children stating in evidence that accused was a habitual drunkard and used to quarrel with deceased - Prima facie case made out, bail refused. (Paras 11, 15, 17)

Cases Cited:
Hans Raj Vs. State of Haryana, 2005(5) ALL MR 205 (S.C.)=(2004)12 SCC 257 [Para 8]


JUDGMENT :- Rule. Learned APP Mr. Maulik Nanavati waives service of Rule on behalf of the respondent-State.

2. The present applicant - original accused in CR No.I - 44 of 2008, registered with Varachha Police Station, Surat, for the offences punishable under Sections 306, 504, 498-A and 114 of Indian Penal Code and under Sections 3 & 7 of Dowry Prohibition Act, has filed this Application under Section 439, Cr.P.C. for enlarging him on Bail. Since 27.1.2008 the applicant is in judicial custody.

3. It is alleged in the complaint by the complainant, brother of deceased Divyaben, that Divyaben @ Chandrika was married with Jagdishbhai Popatbhai Khokhani, present applicant, on 1.2.1998 and out of their wedlock two children were born. It is alleged that after birth of baby child the victim visited her parents house and told them that her husband - applicant is consuming liquor and not doing any work and quarreling with her without any reason and asked the deceased to bring money from her parents so that he can do some business. The victim Divya has also informed her parents that her in-laws are also giving mental and physical torture and demanding dowry. Thereupon the complainant gave money to her to save their marriage life. Often and often she informed her parents about the mental and physical torture being given by her husband and in-laws and due to the demand of money and torture given by her husband and in-laws, she consumed poison on 24.1.2008. The facts of consuming poison by Divya was informed to her parents by her in-laws and during treatment on 25.1.2008 she expired. Thereupon the complaint was lodged before Varachha Police Station, Surat. Investigation was carried out and thereafter the charge-sheet was filed.

4. After filing of charge-sheet the present applicant preferred bail application before the Sessions Court, Surat, being Criminal Misc. Application No.852 of 2008. The said application came to be dismissed by the learned Presiding Officer, Fast Track Court, Surat vide order dated 12.6.2008. However, the co-accused in the said case, who has filed Criminal Misc. Application No.633 of 2008, was released on bail.

5. Heard learned Advocate Mr. B. M. Mangukia for the applicant and Mr. Maulik Nanavati, learned APP for the respondent State.

6. It is contended by learned Advocate Mr. Mangukia that the applicant is innocent and no prima facie case is found against him. It is contended that the FIR which is lodged is an after-thought with a clear motive to book the present applicant in a serious offence. He has also contended that the marriage life of the applicant with the deceased is about 10 years. The allegations made in the FIR is baseless and false and just to disrepute the applicant and his family members the complainant has concocted the story and false complaint is lodged. It is also contended that the deceased has no proximate reason to consume poison and commit suicide. So, ingredients of Section 306 and other offences of I.P. Code are not satisfied. It is also contended that from the suicidal note there is nothing to say that she was abetted by her husband and her in-laws. He has also contended that co-accused in the said case has already been released on bail and on the ground of parity also the present applicant may be enlarged on bail. It is also contended that the applicant and his parents cannot be treated as abettor and the prosecution has failed prima facie to prove the evidence against the present applicant. It is also contended by Mr. Mangukia that the parents of the applicant are old aged and nobody is there to look after them and he is the only earning members in his family. So, on humanitarian ground also he prayed to exercise discretion in favour of the applicant.

7. Learned APP Mr. Maulik Nanavati has contended that from the contention of the suicidal note the deceased has high-lighted the conduct and behaviour of the present applicant and due to the habit of consuming alcohol the deceased was instigated by the applicant and after getting tired from the behaviour of the applicant and her in-laws and bad habit of her husband of consuming liquor, circumstances compelled her to consume poison. He has also contended that the two minor children of the applicant and the deceased have also in their Police statement narrated the harassment and torture given by the applicant to the deceased. He has also contended that ingredients of Section 107 and 108 of I.P. Code are prima-facie satisfied and just to maintain the feelings of the society he vehemently opposed the bail Application.

8. Mr. B. M. Mangukia, learned Advocate has relied upon the decision in the case of Hans Raj Vs. State of Haryana, reported in (2004)12 SCC 257 : [2005(5) ALL MR 205 (S.C.)], and contended that from the papers itself the present applicant cannot be cited as abettor or provocator. He has also contended that even the presumption also cannot be drawn. He has referred the above decision of Hon'ble Supreme Court and contended that the said ratio is also applicable in the present case.

9. I have gone through the observations made in the above decision. But, so far as the present case is concerned the prosecution has produced the evidence of two child witnesses, who are the children of the deceased and the applicant himself. Both the child witnesses have explained about the involvement of the present applicant in the said offence and they have also established the criminal wrong done by the present applicant and they have stated that the cruelty was always imposed on their mother (deceased) by the applicant. In the above decision the Hon'ble Supreme Court has gone through Section 113(A) of the Evidence Act, but, in the present case, looking to the fact of the present case the date of marriage is 1.2.1998 and the date of incident is 25.1.2008. So, from the evidence it appears that the span of marriage life of the deceased with the applicant is 10 years.

Section 113(A) of the Evidence Act, reads as under :

"113-A.Presumption as to abetment of suicide by a married women - When the question is whether the commission 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."

10. From the above provision of law the period of marriage life is required to be within 7 years. Therefore, the question of raising presumption would not arise. However, when the two witnesses, who are the children of the applicant and the deceased have themselves explained everything about the incident then the question of non-production of prima facie can not arise in the present case.

11. I have gone through the case papers as well as the contentions made by both the parties and also perused the suicide note. It is established fact that a married woman, mother of two minor children, has consumed poison after a span of 10 years marriage life, it is prima facie established that the applicant was habitual drunkard. In our Indian culture the woman can not tolerate such type of bad habit of her husband. Poor lady has no power to prevent her husband from such type of bad habit. It is true that she will always try to maintain harmony of the family and always look at the future of her children and will try to save her marriage life to the best of her ability and efforts.

12. So far as the question of instigation is concerned, Section 107 of I.P. Code defines abetment. Reading Sections 306 & 107 together, it is clear that if any person instigate any other person to commit suicide and as a result of such instigation of other person, commits suicide thereon causing instigation, is liable to be punished under Section 306, I.P. Code for abetting the commission of offence in any one of the ways set out in Section 107 of I.P. Code. The case of the applicant when falls under the first category, viz. instigation , a person to do a thing, in circumstances, the need to invoke Explanation - II does not arise and this principle is an established law.

13. It is true that commission of an offence of instigation would depend upon the facts of each case. Therefore, in order to decide whether a person has abetted by instigation for the commission of offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. Such being the case of instigative effect of the conduct used by opposite person (accused) must be judged on the basis of distraught condition to which the accused had driven the deceased. In the present case if applicant would have left the habit of alcohol and would not have harassed his wife (the deceased) and would have maintained family properly, then the deceased could not have nourished the idea of suicide and would not have committed suicide.

14. Abetment as defined by Section 107 of I.P. Code comprises (i) instigation to do that thing which is an offence; (ii) engaging in any conspiracy for doing of that thing; and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word "instigate" in the literary sense means to incite, set or urge on, stir up, good, formant, stimulate, provoke, etc. The dictionary meaning of word aid is to give assistance, help, etc.

15. In view of the above legal observation and discussion and from the perusal of the papers, it appears that due to the habit of the applicant to consume alcohol and subsequent conduct & ill-treatment, wife would have thought of committing suicide. A person who is under the influence of alcohol normally behaves abnormally which would result into such type of ill-treatment given to the married wife who is a mother of two minor children and in such circumstances she would have entered in the thought committing suicide to get out from such type of harassed marriage life.

16. From the statement of two minor children of applicant himself, it appears that they have also narrated the act of the applicant-accused harassing their mother and cruelty inflicted to their mother.

17. Against the present applicant, in my view, the prosecution has prima facie produced sufficient evidence to show that due to the provocation of applicant, his wife has consumed poison and committed suicide. When prima facie case is found against the applicant, it is not desirable to enlarge the applicant accused on bail. Accordingly, this Application is dismissed. Rule is discharged.

Petition dismissed.