IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 102 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
STATE OF GUJARAT….Appellant(s)
SINDHI JAYPRAKASH GORADHANDAS 5….Opponent(s)/Respondent(s)
MS. JIRGA JHAVERI ADDL.PUBLIC PROSECUTOR for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 4 – 6
MR ND NANAVATI, ADVOCATE for the Opponent(s)/Respondent(s) No. 2 – 3
MR PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 4 – 6
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 15/04/2015
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) State has filed this appeal calling in question the legality and validity of the judgment of acquittal rendered by the learned Additional Sessions Judge, Junagadh on 22.10.1992 in Sessions Case No. 72 of 1991. The original accused were charged for offence punishable under Section 149 and 302 of the Indian Penal Code. They were also charged for offence under Sections 498A and 304B read with Section 114 of the Indian Penal Code. An alternative charge was later on framed charging the accused for offence under Section 306 of the Indian Penal Code. All the accused were acquitted of all the charges, upon which, the State has preferred this appeal. At the time of arguments, it was pointed out that accused No.1-Jayprakash Goradhandas expired on 22.10.2010. A copy of the death certificate was produced. The appeal, therefore, abates qua the said accused.
2. Briefly stated, the prosecution version was that Gita, the daughter of the first informant, P.W.1 Ishwariben Mangaram, was married to accused No.1-Jaiprakash. The married life lasted for about two years. During such period, whenever Gita visited her parents’ house, would complain about ill-treatment and harassment by the husband and his relatives. On 3.1.1991, Gita was found hanging from ceiling with a dupatta tied around her neck. She had died due to such hanging. According to the prosecution, the husband and the relatives had between the night of 2.1.1991 and 3.1.1991 committed murder of Gita. They had also been harassing her and making dowry demands. They, therefore, in addition to Section 302 of the Indian Penal Code, were charged for the offence under Section 498A. As an alternative charge, offence of abettment of suicide was added.
3. Ishwariben-P.W.1, the first informant was examined at Exh.22. According to her deposition, Gita’s marriage took place before two years of the incident. During such period, Gita had visited her parents’ house at Morbi. On about eight occasions during her visits, she would complain about the harassment by constant taunting by the in-laws. They also complained about insufficient dowry brought by her. Her husband- accused No.1 did not like her. They had once taken Gita and her husband to Haridwar and other places to ensure marital relations between them.
On the date of incident, her husband received a call at a shop informing him that Gita was serious. The witness, her husband and her brother Kherajbhai went to Junagadh at Gita’s in-laws place by taxi. They reached there at 1.30 hours in the afternoon. They went upstairs in the house in a room where Gita’s body was placed on a cot. In-laws informed that Gita committed suicide by hanging. She refused to believe that Gita would commit suicide and was sure that the in-laws done away with her since they were not satisfied with the amount of dowry that Gita had brought at the time of marriage. After completing the last rites, they left to Junagadh late at night and reached Morbi next day early morning. She filed the police complaint on 5.1.1991.
In the cross-examination, she agreed that the marriage had taken in the presence of relatives and elders of the community. Whatever items given at the time of marriage would be in presence of such elders. A list of such things would also be prepared. She, however, clarified that over and above such items, many other things would have to be given.
She was shown several photographs of Gita and her husband along with other family members taken during Hardwar trip, which were exhibited. She was also shown a letter written by her husband to Gita’s R/CR.A/102/1993 JUDGMENT relatives, which were produced at Exh.32. Being in Sindhi language, a translated copy of this letter was kept at Exh.32A.
She agreed that after writing the said letter, her husband had gone to Junagadh to pick up Gita, at which time, he had stayed at the house of Gita’s in-laws. After marriage Gita’s husband had come to their house on a couple of occasions and would stay with them. When her husband had gone to Junagadh to pick up Gita, she was carrying fetus of 2-3 months. She, however, did not know whether Gita was taking treatment from one Dr. Jasani. She was not aware that at that time Gita’s in-laws told her husband that because of such treatment Gita could go with him only after 15 days.
The defence also suggested that Gita and her husband had celebrated their first marriage anniversary at Junagadh, and that her in- laws had bought several dresses for her, and also opened her account in the post office, in which sizeable investment was made in her name.
She agreed that Gita’s in-laws did give her pocket money, but clarified that such amount was very small, and they always demanded its account. She denied that since her husband in the police statement had exonerated the in-laws of the daughter, she had filed the police complaint.
4. In the First Information Report Exh.86, which this witness lodged, she had stated that whenever Gita would visit her house, she would complain about her ill-treatment and harassment by the husband and the in-laws for inadequate dowry. She had stated that at the time of marriage they had given ornaments and other articles costing nearly Rs.3.00 lacs, which Gita’s in-laws found them not enough.
5. Mangaram Karamchand P.W.8, Exh.29 was Gita’s father. He had R/CR.A/102/1993 JUDGMENT a garment and footwear store in Morbi. In his deposition, he stated that Gita’s husband did not like her. Relatives of the husband used to harass her. They often demanded dowry. After her marriage, Gita had come to Morbi 7-8 times. She would complain about harassment by the in-laws for dowry. Her husband did not like her. For cordial relations between the husband and wife, he had taken them to Haridwar. On 31.12.1990, he had gone to Junagadh to Gita’s house. He wanted to pick her up for coming to marriage of his son. Gita’s father-in-law, however, told him on telephone that he could pick her up after fifteen days.
On 3.1.1991 at 9.45 in the morning, he received a phone call from Junagadh at his shop. He was not at the shop at that time, and therefore called back to one Isumal Sheth at Junagadh, who informed him that Gita was serious. He along with his wife and Kherajbhai went to Junagadh in taxi and reached there at 1.30 p.m. Gita had died by hanging. They attended her cremation and left in the night. When the postmortem was being done, police of Junagadh approached him. He, however, told them that he was very upset, and was not in a position to give his statement. The police, therefore, did not record his statement. Only when the accused filed bail application, he came to know that police has recorded a statement purportedly given by him. He had, therefore, given an application to the District Superintendent of Police declaring that he had never given any such statement.
In the cross-examination, he was shown the constitution of his community, which provide a list of things to be given at the time of marriage. He, however, stated that this list is not always adhered. He could not give the details of the items given at the time of marriage, nor could he provide for the source of purchase of such items.
He admitted that letter Exh.32 dated 8.5.1989 was in his R/CR.A/102/1993 JUDGMENT handwriting. It was written about four months after the marriage. He had written the letter to call the daughter and son-in-law first time after marriage as per their custom.
During the Haridwar visit, they had also gone to Delhi, Agra and Fatepur Sikri. He admitted that photographs exh.42 and 43 were taken during such trip. At the time of going to Haridwar, his daughter Gita was also at Morbi when son-in-law also came to Morbi and stayed with them. During the two years of Gita’s marriage, he had gone to Junagadh about eight times and every time he would stay with Gita’s in-laws. In Junagadh, he had other relatives, including two in-laws of his daughters. Gita’s mother-in-law also used to visit his relatives with Gita. He was shown photographs exh.30 and 31, but did not know if such photographs were taken during Gita’s first marriage anniversary celebrations.
He did not know whether Deputy Mamlatdar, Junagadh had visited when the inquest panchnama was being made. When police visited the house of the accused, he was on the second floor. The police had also contacted him, and asked him whether he wanted to say anything. He denied that his detailed statement was recorded on 3.1.1991. He admitted that in his police statement dated 5.1.1991 he had stated that Junagadh police had recorded his statement on the date of the incident. However, since he was very upset he had not stated anything.
The defence suggested that Gita had visited her parents house at Morbi in December 1990 on the occasion of naming of the grandson of the witness or that even Gita’s husband was present during such ceremony and stayed there for three days. He denied that in his police statement dated 3.1.1991 he had disclosed that he had picked up Gita for such occasion and that even Jaiprakash had come for the occasion. He also denied that in such statement he had made no complaint about the ill-
R/CR.A/102/1993 JUDGMENT treatment of his daughter by her in-laws, specifically stating that she had no harassment from their side.
He further stated that immediately upon seeing Gita’s dead body he realized that she was murdered. He, however, agreed that in the procession on 3.1.1991 for taking Gita’s body to the crematorium, he had also participated.
He further stated that after seeing the dead body he was taken to another room where he lost his consciousness. He denied that he had never become unconscious. When he regained his consciousness he saw his brother-in-law Kherajbhai. He could not state when he regained his senses, but agreed that till then Gita’s body was not taken to crematorium. However, by the time he regained his senses, Gita’s postmortem was over, and her dead body was brought back home.
6. Kherajbhai, Gita’s maternal uncle, P.W. 6 was examined at Exh.48. He had accompanied Gita’s parents to Junagadh on the date of the incident. He stated that when postmortem was going on, police had contacted him outside the postmortem room. He had, however, stated that he was mentally not stable, and would, therefore, not like to give the statement then.
In the cross-examination, he agreed that whenever he went to Junagadh, he did not come to the house of any other relative. He would mostly stop at Junagadh for changing a bus to go to Sattadar. Besides this, he had gone to Junagadh on a couple of occasions, during which time, he had stayed in the house of the accused.
7. In addition to these three family members, the prosecution also examined various other witnesses residing in the neighbourhood at Morbi R/CR.A/102/1993 JUDGMENT in connection with Gita’s ill-treatment by her in laws. It is not necessary to take detailed note of their depositions, suffice it to record that such witnesses are Rukshmaniben Savjibhai P.W.3, Exh.45, Jayaben Vrujlal P.W.4, Exh.46, Savjibhai Mavjibhai, husband of Rukshmaniben, P.W.5, Exh.47 and Manjulaben Vasudev, P.W. 7, Exh.58. According to all these witnesses, whenever Gita would come to Morbi she would sometime visit them and complain about her harassment by the in-laws. Savjibhai Mavjibhai, P.W.5 merely referred to such complaints made by Gita to Rukshmaniben Savjibhai. His version, therefore, was wholly hearsay.
8. Dr. Devshibhai Raghavbhai Makwana, P.W.2, Exh.33 had carried out the postmortem. He produced postmortem note at Exh.36. He had noticed a ligature mark over the thyroid cartilage, which was 24 cm long and some 2 cm wide. No other injury was found on the body. He had opined that death was due to hanging. In the cross-examination, he agreed that signs of death by hanging in case of homicide and in case of suicide would be different. In case of homicidal hanging, other external injuries would normally be visible due to resistance that the person might offer. The present one was not a case of death by strangulation. All signs were consistent with suicide by hanging.
9. The inquest panchnama Exh.72 also did not show any sign of other violence on the body of the deceased.
10. Ranjitsinh Gopalsinh Raol, P.W.13, Exh.82, was the Police Sub Inspector at Junagadh City Police Station at the relevant time. He had received information of unnatural death given by the husband of the deceased. He had proceeded to enquire. He had recorded the statement of Gita’s father at about 2.30 in the afternoon. In the cross-examination, he stated that when he reached the house, Gita’s parents and uncle Kherajmal were present. Gita’s body was identified by her father. He R/CR.A/102/1993 JUDGMENT had recorded his statement in another room, which took about 20 minutes. He was in stable mental condition to be able to give the statement. He agreed that in such statement Mangaram had stated about presence of Gita and her husband during the ceremony of naming his grandson.
11. Investigation was carried out by Jaising Jodhabhai Barad P.W.14, Exh.85. He was Police Inspector of City Police Station, Junagadh. He gave details of steps undertaken by him for investigation.
12. This in a nutshell is the evidence on record. On the basis of such evidence, learned Additional Public Prosecutor submitted that the trial court committed a serious error in acquitting the accused. She submitted that at any rate, the allegations of extreme harassment by the in-laws was established through reliable evidence of various witnesses, including independent witnesses. The accused were demanding more dowry. When Gita’s family could not fulfill such demands, she was being ill- treated. She pointed out that the unnatural death took place within two years of the marriage. Presumption provided under the Evidence Act, therefore, would arise. On the other hand, learned counsel Shri N.D. Nanavati defended all the accused submitting that the trial court has given cogent reasons for not accepting the prosecution version. There was sufficient evidence to suggest that Gita was being treated well at her matrimonial house. This being a case of appeal against acquittal, if two views are possible, the court would not convert the judgment of acquittal into one of conviction.
13. Entire prosecution theory revolves around the deposition of three important witnesses, namely, Gita’s mother, father and her maternal uncle. We may recall that on 3.1.1991, during the time when Gita’s postmortem was going on, there was presence of police personnel as wellR/CR.A/102/1993 JUDGMENT as the Deputy Mamlatdar. In fact, statement of Gita’s father was also recorded by Ranjeetsinh Gopalsinh Raol P.W.13 on 3.1.1991 itself. However, according to Mangaram, Gita’s father, he was not in a state of mind to give any statement, and this statement was not his. We would refer to this aspect a little later. Primarily, Ishwariben P.W.1, Gita’s mother, had referred to ill-treatment of Gita by her in-laws on account of insufficient dowry. She had also claimed that Gita’s husband did not like her daughter because she was too short. According to her, Gita’s in-laws were harassing her and this Gita narrated to her during her many visits to Morbi. Broadly this was also what Mangaram P.W.9, Gita’s father, had to say. This was sought to be supported by Gita’s uncle Kherajbhai P.W.6. However, this version was in stark contrast to Mangaram’s first version before the police on 3.1.1991 itself. According to such statement, which P.W.13 Shri Raol recorded, Mangaram had given a clean chit to all family members of Gita. Later on Mangaram stated that he has not given any such statement since he was extremely upset. Mangaram stated that he had lost consciousness after seeing the dead body of his daughter. He did not know when he regained consciousness, but stated that by that time Gita’s dead body was already brought back after postmortem. Thus, according to him, he had lost consciousness for a very longtime. We may recall that Mangaram and other relatives of Gita reached Junagadh at about 1.30 in the afternoon. This claim of having lost consciousness was not supported by any other witnesses. Neither his wife P.W.1, nor his brother-in-law P.W.6 referred to Mangaram losing consciousness during any time. In fact, Mangaram admitted that he had participated in the procession for taking Gita’s dead body to the crematorium. Further, Mangaram is one who identified the dead body of Gita. According to Shri Raol, P.W.13, Mangaram was stable and was able to give his statement. In fact, Shri Mohan Savjibhai Vegad, P.W.10, Exh.75, the Deputy Mamlatdar, in his cross-examination stated that he had asked for a relative to come forward to identify the dead body, upon which, Gita’s R/CR.A/102/1993 JUDGMENT father, who had come from Morbi came forward. He was taken to the room where the dead body was lying. He informed that Gita had married to Jaiprakash some two years back. He agreed that at that time Mangaram was fully conscious and stable. The panchnama was made in the room where the dead body was lying. Mangaram was in another room from where he was called for such purpose. In such room, not only the Mamlatdar but other police people, including Police Sub Inspector Shri Raol were present.
14. Thus, Mangaram’s theory that he had lost consciousness to further his claim of not being mentally stable so as to give his statement to the police on 3.1.1991 was totally falsified. We may recall that after the entire post-death ceremony was over, in which Gita’s father and other relatives participated, the First Information Report was lodged after a delay of nearly two days. Quite apart from such factors, there were several other indications to suggest that the theory of Gita’s relatives that she was being ill-treated by her in-laws was rightly not accepted by the trial court. According to these witnesses, Gita had visited her parents house about eight times after marriage without complaining about ill- treatment by the in-laws. However, admittedly, Gita and her husband had accompanied Gita’s parents and brother on a tour to Haridwar, during which time they also visited Delhi, Agra and Fatepur Sikri. Though Gita’s father and mother referred to such tour in order to bring harmony between the couple, various photographs taken during such tour and exhibited would show no such tension or ill-will between the couple. It has now come on record that Mangaram, Gita’s father, would often visit Junagadh. He had other relatives at Junagadh, but would invariably stayed with Gita’s in-laws. Even Kherajbhai, Gita’s maternal uncle, whenever visited Junagadh, stayed with her.
15. The defence had also suggested that Gita’s in-laws bought clothes R/CR.A/102/1993 JUDGMENT for her, gave her pocket money, had opened account in post office and made investment in her name. The couple had also celebrated the first marriage anniversary at Junagadh. Mangaram also had written a letter to Gita’s in-laws some four months after marriage to invite the newly wed couple to his house for the first time. Mangaram had also gone to Gita’s house on 30.12.1990, i.e. barely few days before the incident to pick up Gita. As per the defence, Gita was 8-12 weeks pregnant and she was being treated by doctor. Gita’s father-in-law assured that she could go to her house after fifteen days once the treatment is over. The unfortunate incident happened shortly thereafter. By all accounts of medical evidence, it was a case of suicide and not homicide. There were no signs of violence before the death. Only visible mark was of a ligature around the neck. The doctor agreed that all signs were consistent with suicide by hanging. It was neither a case of forcible hanging nor a case of strangulation before hanging. The theory of homicide, therefore, must be completely discarded. The precise time of death also could not be ascertained. Merely because the dead body was found in the bedroom of the lady would not cause a burden on the defence to explain her unnatural death, which, in any case, was not homicidal, but suicidal. It was entirely possible that in the early morning hours, finding isolation in a bedroom, the girl might have taken the extreme step. The defence suggestion that being upset by not being sent home with her father on 30th December she could have taken such extreme steps and not on account of harassment and persistent dowry demands also was eminently probable.
16. The evidence of neighbours noted above about alleged ill-treatment of the girl by her in-laws must be summarily discarded. When we have found such testimony of Gita’s close relatives on account of inherent improbabilities and multiple contradictions, no reliance can be placed on otherwise hearsay evidence of the neighbours claiming that she had disclosed to them about her harassment of the in-laws. All in all, we are R/CR.A/102/1993 JUDGMENT of the opinion that there was sufficient evidence that relations between two sides also not strained, which could be seen from the fact that Gita’s father and other relatives would stay with her at Junagadh when they had an occasion to visit the said town. These are not signs consistent with extreme harassment and cruelty by the in-laws of the girl as alleged by her parents. If Gita was being continuously harassed and tortured, if the dowry demand by the in-laws was persistent and unbearable, if Gita was constantly under pressure because Gita’s husband did not like her, there was no reason for the couple to take a pleasure trip with Gita’s parents and there would no occasion for Gita’s relatives to stay with her in-laws’ house at Junagadh on multiple occasions.
17. We must remind ourselves that we are dealing with an acquittal appeal. Even if two views are otherwise possible, the Court would not convert the judgment of acquittal into one of conviction. Unless there was strong evidence on record suggesting that the findings of the trial court were wholly baseless and perverse, the court would not interfere in a judgment of acquittal.
18. In the result, the appeal is dismissed. Record and proceedings be transmitted to the trial court.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.)