R/CR.A/504/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 504 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
STATE OF GUJ….Appellant(s)
Versus
SUNILKUMAR I THAKAR 3….Opponent(s)/Respondent(s)
Appearance:
MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the Appellant
ABATED for the Opponent(s)/Respondent(s) No. 3
MR K J PANCHAL, ADVOCATE for Respondents Nos. 1, 2 4
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 08/12/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
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1. By way of this appeal, the appellant – State of
Gujarat has assailed the judgment and order dated
02.03.1994, passed by the learned Additional Sessions
Judge, Bharuch, whereby the respondents (original
accused) have been acquitted of the offences
punishable under Sections 302, 304B (2), 306 and 498A
of the Indian Penal Code, 1860 and Sections 3 and 4 of
the Dowry Prohibition Act, 1961 (“the Dowry
Prohibition Act” for short).
2. Sonalben (deceased) was the wife of respondent
No.1 Sunilkumar Indulal Thakar. Indiraben Indulal
Thakar is the motherinlaw of the deceased. Indulal
Ganpatrao Thakar was the fatherinlaw of the
deceased, who has since died and the appeal qua him
has abated. Pannaben Mukeshbhai Bhatt is the married
sisterinlaw of the deceased. The marriage between
respondent No.1 and the deceased took place on
04.02.1990 at Borsad. The case of the prosecution is
that on the night intervening 12.10.1990 and
13.10.1990, between 1:00 AM to 2:00 AM, respondent
No.1 caused the death of the deceased with the help of
respondents Nos.2 and 4 (mother and sister
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respectively). Alternatively, respondents Nos.1, 2 and
4 have also been charged with harassment to the
deceased for dowry which led her to commit suicide.
Hence, they are also charged with abetment of suicide.
As per the case of the prosecution, the respondents
used to harass and torture the deceased and demanded
utensils, a doublebed and a scooter from Rajanikant
Bapalal Patel, father of the deceased, at the time of
marriage. These articles were given to the respondents
and were accepted by them. During the wedding, it is
alleged that respondent No.1 demanded Rs.2,000/ to
alight from the vehicle and an amount of Rs.10,000/
to sit in the wedding Mandap which was paid by the
father of the deceased. Respondents Nos.1, 2 and 4 are
also alleged to have driven the deceased to commit
suicide by making demands for dowry.
3. Upon investigation, as sufficient material was
found against the respondents, a chargesheet was
filed in the Court of the learned Judicial Magistrate,
First Class, who committed the case to the Court of
Sessions. The charge was framed against the accused at
Exh.10. Later on, the charge was modified and Sections
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3 and 4 of the Dowry Prohibition Act were came to be
added on 28.03.1993. The respondents denied the
allegations levelled against them and claimed to be
tried. The prosecution examined eight witnesses in
support of its case and produced voluminous
documentary evidence.
4. The learned Sessions Judge, after appreciating
and examining the oral and documentary evidence
acquitted respondents Nos.1, 2 and 4 of the offences
with which they were charged, on the ground that the
prosecution had failed to produce sufficient material
to prove their guilt.
5. The statements of the accused persons under
Section 313 of the Code of Criminal Procedure, 1973
(“the Code” for short), were recorded. In his
statement under Section 313 of the Code, respondent
No.1 has stated that his wife, Sonal, was of a
stubborn nature. Before her marriage, she had a love
affair with somebody and she often used to say that
she does not want to live, as she has no interest in
life. He used to counsel her and tell her to forget
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her past and advise her to live in the present.
However, Sonal did not listen to him and often used to
get angry without any reason. When Sonal got angry,
she lost control of herself and said that she does not
want to live and may commit suicide.
6. As per the explanation given by respondent No.1
in his statement under Section 313 of the Code, on the
day of the incident he had gone for work in the
afternoon. He returned home at 10:00 PM. His wife,
Sonal, was not present at home; therefore, he opened
the door with his own key and entered the house. He
got a telephone call from Sonal that she was at
Jagdishbhai’s house and that he should join her there.
Respondent No.1 went to Jagidshbhai’s house. After
taking dinner, both Sonal and he returned home. At
11:00 PM, he put on the television and was watching
it. Sonal was writing Diwali cards to her relatives.
After she finished writing, she went to the bedroom.
Respondent No.1 dozed while watching television and
did not know when he fell asleep. Sonal did not come
to wake him up, as usual. When he awoke, he went to
the bedroom and saw Sonal hanging with her dupatta
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from the fan. He tore the dupatta from the middle,
lifted Sonal’s body and laid it on the bed.
Thereafter, he called up his friends Yogeshbhai (PW2)
and Girishbhai (not examined). When Yogeshbhai
arrived, he informed the Police and Sonal’s parents.
He also telephonically informed the parents of
respondent No.1 at Vadodara regarding the incident.
Respondent No.1 further states that he has never
inflicted any physical or mental torture upon his wife
Sonal. His parents and sister have also never tortured
or harassed her in any manner. Nor have they ever
asked for any article or money. He states that a false
case has been foisted upon them.
7. Assailing the judgment of the Trial Court,
Mr.Hardik Soni, learned Additional Public Prosecutor,
has submitted that the Trial Court has given
unnecessary weightage to a supposed love affair of the
deceased before her marriage. What actually happened
is not on record and has emerged only in the statement
under Section 313 of the Code.
7.1 That the deceased died an unnatural death within
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seven months of marriage. No complaint has been made
by respondent No.1 to the parents of the deceased
regarding her socalled suicidal tendencies. The
presumption under Section 113A of the Indian Evidence
Act, 1872 would, therefore, come into play.
7.2 That the conduct of the accused is required to be
noticed. Instead of taking the deceased to the
hospital, he straightaway called up his friend Yogesh,
who informed the Police and the parents of the
deceased.
7.3 That the weight of the deceased was between 56 to
59 Kilograms. Had she hung herself from the ceiling
fan, there would be damage to the fan or blades, which
is not the case. Hence, there is every likelihood that
respondent No.1 strangled the deceased and hung her
body.
7.4 That the findings of the Trial Court regarding
the discrepancies in the deposition of PW3, father of
the deceased, and the letter written by him to the
Superintendent of Police, Bharuch, are not proper. The
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finding that there is no allegation of dowry demand or
torture in the said letter cannot be read out of
context as the letter had been written to conduct a
fair investigation. It is not necessary that each and
every detail is required to be mentioned. Pw3 is of
the view that his daughter was murdered, therefore, he
had demanded proper investigation. It cannot be said
that there are contradictions in his deposition and
the letters written by him. Even if there are some
contradictions, they are minor in nature and the
testimony of the complainant cannot be discarded on
this ground.
7.5 That the deceased was eight to ten weeks pregnant
so there was no reason for her to commit suicide, as
stated by respondent No.1. In the alternative, it is
submitted by the learned Additional Public Prosecutor
that, if the Trial Court did not find sufficient
material to convict the accused under Section 302 IPC,
they could have been convicted under Sections 304B(2)
and 306 IPC. Failure to do so has occasioned
injustice. The prosecution witnesses have deposed
regarding the harassment and the demands for dowry
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meted out to the deceased. However, their depositions
have not been considered in proper perspective by the
learned Judge.
7.6 That respondent No.1 was last seen together in
the company of the deceased. Hence, he would be the
prime suspect and his involvement in the murder of the
deceased is made out.
7.7 On the basis of the above submissions, the
learned Additional Public Prosecutor has urged that
the appeal be allowed and the judgment of acquittal be
reversed.
8. Strongly opposing the above submissions, Mr.K.J.
Panchal, learned counsel for respondents Nos.1, 2 and
4, has submitted that the prosecution has utterly
failed to prove its case beyond reasonable doubt. The
case rests solely upon circumstantial evidence as
there are no eyewitnesses to the incident. The chain
of circumstances pointing out to the guilt of
respondents Nos.1, 2 and 4 is not at all complete.
Several doubts emerge from the evidence on record and
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the strong possibility that the deceased committed
suicide, as she was of a sensitive nature and was
depressed about her previous love affair, cannot be
ruled out.
8.1 That respondent No.1 and his family members have
never demanded any dowry from the deceased or her
family members. On the contrary, there is evidence on
record, in the shape of the letters of the deceased,
that respondent No.1 had ordered a doublebed for the
deceased and had asked her to choose the design. He
was also about to purchase a refrigerator from the
bonus he was likely to receive. This has been stated
by the deceased herself in her letter to her parents.
In the voluminous letters on record, the deceased has
not once stated that she is being harassed or tortured
or that respondent No.1 and his family members are
demanding dowry from her. The tone and tenor of the
letters suggests a cordial married life.
8.2 That is an admitted position that respondent No.2
– motherinlaw of the deceased and respondent No.4,
her married sisterinlaw, were residing separately.
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Hence, there is no question of harassment from them.
The marriage of the deceased took place on 04.02.1990.
The deceased resided with respondent No.1 at Bharuch
for two or three days thereafter and returned to her
parents’ place at Mehsana, to appear in an
examination. She came back with respondent No.1 in the
month of July, 1990. In the seven months of married
life, she has stayed at her parents’ place at Mehsana
from February to July. Therefore, in the short span of
three or three and a half months when she resided with
respondent No.1, there is nothing on record to suggest
that any harassment was meted out to her.
8.3 That the charge regarding torture to extort dowry
and the deceased being done to death for non
fulfilment of dowry demands, is not supported by any
evidence on record. In the initial information given
by PW3, no such allegations were levelled against the
respondents. It is only later on, at the intervention
of the leaders of the community when an article
regarding the death of the deceased appeared in a
newspaper, that allegations regarding the murder of
the deceased for dowry were made by the complainant,
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by writing letters to the Police authorities, Chief
Minister and Home Minister.
8.4 That it has come on record that after her death,
all articles belonging to the deceased were returned
by the respondents to her parents.
8.5 That PW3, father of the deceased, is not a
truthful witness as he has made several improvements
and embellishments in his testimony before the Court.
He has stated different versions at different times.
The story regarding an alleged extramarital
relationship of respondent No.1 with a lady called
Shaila, has not been proved and no material regarding
this allegation is produced on record. Nor is there
any evidence regarding his being a drunkard. In short,
there is no evidence to connect the accused with the
commission of the alleged offence.
8.6 That the evidence of PW7, Dr. Bharat Vadilal
Mehta, who performed the Postmortem of the deceased,
states that the cause of death is “asphyxia following
hanging” and not due to strangulation. The Postmortem
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was performed by a panel of two doctors and the
opinion is of both doctors.
8.7 That, had there been any grain of truth in the
story of the prosecution that respondent No.1
strangled the deceased and then hung her from the fan,
there would have been signs of violence in the room
which were not found as per the Panchnama of the Scene
of Offence. Further, there were no marks indicating
violence on the body of the deceased.
8.8 That there is no recovery or discovery of any
objectionable or incriminating article at the instance
of the respondents. The dupatta used by the deceased
for hanging herself was seized by the Police but not
sent to the Forensic Science Laboratory for
examination.
8.9 That the conduct of respondent No.1 when he found
his wife hanging cannot be questioned. He was shocked
and was crying. His first reaction was to call his
friend Yogeshbhai, who also found him crying when he
arrived. Respondent No.1 was not in a position to call
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his own relatives or those of the deceased and it was
Yogeshbhai who informed the Police and relatives by
telephone. This cannot be considered as unnatural
conduct on the part of a griefstricken husband.
8.10 Though it may be true that respondent No.1
was last seen together in the company of the deceased,
however, the onus to prove how the deceased died is
not upon him. He is required to give a plausible
explanation, which he has done in his statement under
Section 313 of the Code. The letters written by the
deceased to respondent No.1 have been exhibited and
reveal the oversensitive nature of the deceased. It
is for the prosecution to prove its case beyond
reasonable doubt, which it has failed to do.
8.11 That the deceased has committed suicide
because she was not desirous of having a child and
found herself pregnant. She did not want a child so
early in her marriage as she had applied in a Bank for
employment. The deceased was of a hypersensitive
nature and the fact that she was pregnant could have
led her to commit suicide. None of the charges
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levelled against the respondents are made out. There
is no evidence of dowry demand or abetment of suicide
and the ingredients of the said offences are not
present. The prosecution has utterly failed to
establish that the deceased was treated with cruelty
by the respondents or that they are involved in her
death.
8.12 That the view taken by the Trial Court is
plausible and probable, considering the facts and
circumstances and evidence adduced in the case. Hence,
the said view, being a possible one, may not be
disturbed.
8.13 In support of the above submissions, learned
counsel for the respondents has relied upon certain
judgments.
(1) The first judgment relied upon is in the case of
Subramaniam Vs. State of Tamil Nadu and Another
reported in (2009) 14 SCC 415, where the Supreme
Court has held as below:
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“23. So far as the circumstance that they had
been living together is concerned, indisputably,
the entirety of the situation should be taken
into consideration. Ordinarily when the husband
and wife remained within the four walls of a
house and a death by homicide takes place it will
be for the husband to explain the circumstances
in which she might have died. However, we cannot
lose sight of the fact that although the same may
be considered to be a strong circumstance but
that by alone in the absence of any evidence of
violence on the deceased cannot be held to be
conclusive. It may be difficult to arrive at a
conclusion that the husband and the husband alone
was responsible therefor.”
(2) Reliance is next placed upon the judgment in the
case of Mula Devi and Another Vs. State of
Uttarakhand reported in (2008) 14 SCC 511, in which
the judgment in the case of State of Rajasthan Vs.
Raja Ram reported in (2003) 8 SCC 180, has been
discussed by the Supreme Court, wherein the law
relating to circumstantial evidence has been
delineated. The relevant paragraphs from State of
Rajasthan Vs. Raja Ram (supra) are as under:
“15. In Hanumant Govind Nargundkar and Anr. V.
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State of Madhya Pradesh, (AIR 1952 SC 343),
wherein it was observed thus: “It is well to
remember that in cases where the evidence is of a
circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn
should be in the first instance be fully
established and all the facts so established
should be consistent only with the hypothesis of
the guilt of the accused. Again, the
circumstances should be of a conclusive nature
and tendency and they should be such as to
exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain
of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent
with the innocence of the accused and it must be
such as to show that within all human probability
the act must have been done by the accused.”
A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra,
(AIR 1984 SC 1622). Therein, while dealing with
circumstantial evidence, it has been held that
onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or
plea. The conditions precedent in the words of
the this Court, before conviction could be based
on circumstantial evidence, must be fully
established. They are:
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(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully
established. The circumstances concerned must or
should and not may be established;
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty; (3) the circumstances
should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so compete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.”
(3) In the case of Dasari Siva Prasad Reddy Vs.
Public Prosecutor, High Court of A.P., the Supreme
Court has discussed the aspect of last seen together,
in the following terms:
“23. However, there is one circumstance which is
suggestive of the strong possibility of the
presence of the accused at his house. As per PW
3’s evidence which was believed by the trialPage 18 of 45
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R/CR.A/504/1994 CAV JUDGMENTcourt, the appellant contacted him in the morning
at a.a. And brought PW 3 to his house giving a
hint that something untoward happened to his
sister (i.e. the deceased). Added to this, the
accused, in the normal course, is expected to be
at his house in the night. However, these factors
need not give rise to an irresistible inference
that the accused remained in the house in the
previous night and the accused alone must have
been responsible for the murder. At best, it can
be said that the view taken by the trial court is
not the only possible view. But, that is not
enough to reverse the acquittal.”
(4) The judgment in the case of Arun Kumar Sharma
Vs. State of Bihar reported in (2010) 1 SCC 108, has
also been referred to, wherein the judgments and order
of conviction passed by the Trial Court and the
Appellate Court were set aside and the accused was
acquitted of all offences. However, this judgment is
not required to be discussed in detail as the
respondents herein have already been given the benefit
of a clear acquittal by the Trial Court.
(5) The next judgment on which reliance is placed by
the learned counsel for the respondents is that in the
case of Jose Alias Pappachan Vs. SubInspector of
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Police, Koyilandy And Another reported in (2016) 10
SCC 519, wherein the characteristics of suicidal death
and death due to strangulation have been discussed.
The relevant paragraphs are as under:
“52. On an overall consideration of the evidence
available on record, it would be, in our view,
wholly unsafe to hold the appellant guilty of the
charge of murder of his wife by strangulating her
with the nylon rope as seized and then hanging
her from the roof with the saree to complete the
act. The circumstantial evidence adduced by the
prosecution in our assessment falls short of the
requirement in law to return a finding of guilt
against the appellant without any element of
doubt whatsoever. The fact that both the accused
persons had been exonerated of the charge of
cruelty under Section 498A IPC and that the co
accused, who allegedly had assisted the appellant
in the perpetration of the crime had been fully
acquitted by the courts below of all the charges
also takes away the wind from the sails of the
prosecution.
53. It is a trite proposition of law, that
suspicion however grave, it cannot take the place
of proof and that the prosecution in order to
succeed on a criminal charge cannot afford to
lodge its case in the realm of “may be true” but
has to essentially elevate it to the grade of
“must be true”. In a criminal prosecution, the
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court has a duty to ensure that mere conjectures
or suspicion do not take the place of legal proof
and in a situation where a reasonable doubt is
entertained in the backdrop of the evidence
available, to prevent miscarriage of justice,
benefit of doubt is to be extended to the
accused. Such a doubt essentially has to be
reasonable and not imaginary, fanciful,
intangible or nonexistent but as entertainable
by an impartial, prudent and analytical mind,
judged on the touch stone of reason and common
sense. It is also a primary postulation in
criminal jurisprudence that if two views are
possible on the evidence available, one pointing
to the guilt of the accused and the other to his
innocence, the one favourable to the accused
ought to be adopted.”
9. In the background of the above legal and factual
submissions, it would be fruitful to advert to the
relevant oral and documentary evidence on record.
10. PW1, Ashwin Natvarlal Talati, is the Panch
Witness of the Panchnama of the Scene of Offence. He
deposes regarding the factum of drawing up the said
Panchnama and his appending his signature thereupon.
He states that he acted as a Panch Witness because he
was available and the Police told him to sign the
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Panchnama. He does not remember whether any other
person was present there at that time. He further
states that the bed, in the bedroom, was a little away
from the wall and was crooked.
11. The Panchnama of the Scene of Offence is at
Exh.42. It is stated therein that a piece of
multicoloured dupatta (green, yellow, brown and red)
was hanging from the fan and the other half had been
freshly cut. The roof was about nine feet above the
ground and the fan was about seven feet and eight
inches from the floor. The other half of the
multicoloured dupatta was found on the bed. No marks
were found on the dupatta.
12. PW2, Yogeshbhai Nagjibhai Patel, the friend of
respondent No.1, was the first to arrive at the spot
after the respondent called him. He states that on the
day of the incident he returned home from work late at
night after the second shift. He received a telephone
call from respondent No.1, calling him to his house.
This witness went with Girishbhai to the house of
respondent No.1 and found nobody in the drawing room,
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the door of which was open. He then went to the
bedroom and got the impression that the deceased was
sleeping on the bed. Respondent No.1 was sitting
there, crying. On asking him what had happened,
respondent No.1, still crying, pointed towards a
dupatta hanging from the middle of the fan. This
witness states that as it appeared that the deceased
was dead, he informed their other friends and the
parents of the deceased and respondent No.1
telephonically. Thereafter he, accompanied by
Girishbhai, went to the Police Station to inform the
Police. The complaint was recorded, which is at
Exh.44.
In crossexamination, this witness states that in
his complaint he had stated that the saree was hanging
from the middle of the fan, from its base. He states
that he knew the deceased. The deceased and respondent
No.1 had a happy married life. He further states that
respondent No.1 had told him that he had fallen asleep
while watching television at night. When he awoke and
entered the bedroom, he found Sonal hanging. He
further states that on 15.10.1990, the parents of the
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deceased and other persons from Borsad had come in a
tempo to the house of respondent No.1 and damaged his
property, which he came to know later.
13. The complaint given by PW2 to the Police is at
Exh.44. It is stated therein that he had been called
by respondent No.1 telephonically late at night at
about 2:00 AM. He went there on his scooter with
Girishbhai and saw the door open. When they entered
the bedroom, they saw Sonal lying on the bed.
Respondent No.1 was crying. They asked him what had
happened and why he was crying. Respondent No.1 showed
them the Saree hanging from the fan. It is stated that
respondent No.1 had told him that he was watching
television in the other room till late at night and
fell asleep. When he awoke and entered the bedroom, he
saw his wife, Sonal, hanging from the fan. He cut the
Saree, brought her body down and put it on the bed. As
he felt that Sonal was dead, he informed Vinodbhai,
who lived in the society, as well as the parents of
the deceased and respondent No.1, regarding the
incident.
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14. The father of the deceased, Rajnikant Bapalal
Patel, has been examined as PW3. He states that there
is no custom of giving dowry in his community.
However, the parentsinlaw of his daughter informed
him that their son was a Chemical Engineer, therefore,
they would have to give dowry at the time of marriage.
According to this witness, the parents of respondent
No.1 demanded cash, a doublebed, a scooter and a
refrigerator. When the engagement took place,
respondent No.2 wrote a list of articles that were to
be given, in her own handwriting, which is at Exh.58.
This witness further states that he was told to give
an amount of Rs.2,000/ to respondent No.1 for
alighting from the car which he gave, though there is
no such custom in his community. The mother of
respondent No.1 told him to pay an amount of
Rs.10,000/ for her son to sit in the Mandap. After
consulting his relatives, he had paid Rs.10,000/ and,
thereafter, the wedding ceremony began. According to
this witness, his daughter Sonal went to her
matrimonial house and then returned to his house in
order to appear for her B.A. Examination. After the
examination was over, respondent No.1 came to pick her
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up and demanded kitchen utensils and a doublebed.
Utensils worth Rs.2,000/ were given to respondent
No.1 and he and Sonal returned to Bharuch with the
said utensils. This witness admits that respondent
No.1 and Sonal lived at Bharuch, separately from the
parents of respondent No.1 and his married sister, who
lived in Vadodara and Surat, respectively.
This witness states that on 17.09.1990,
respondent No.1 and his daughter had come to attend
the ‘Besna’ ceremony of his sisterinlaw. After it
was over, respondent No.2 (motherinlaw of the
deceased) asked him why he was not giving the articles
as agreed upon. The respondents returned in the
evening but his daughter Sonal stayed back. That
evening, his daughter cried and informed her relatives
that she did not want to return to her matrimonial
home. She said this in the presence of his brothers
inlaw Navinkumar Thakar and Madhubhai Thakar, mother
and fatherinlaw of this witness, his wife and other
relatives. On asking her the reason, Sonal is stated
to have said that respondent No.1 has the bad habit of
consuming liquor and has an extra marital affair with
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a girl named Shaila, which she does not like. It is
for this reason that she does not want to go back to
him. According to this witness, Sonal also stated that
if the articles, as demanded, are not given by them,
the respondents would kill her. The relatives then
counselled Sonal to return as the festival of Diwali
was approaching and it was her first Diwali in the
matrimonial home. Sonal was, therefore, sent to
Bharuch with a cousin of this witness, named Dinaben.
This witness further narrates that early in the
morning of 13.10.1990, he received a telephone call
informing him that Sonal’s condition was not good and
he should reach Bharuch immediately. He, accompanied
by his wife and son, left Mehsana for Bharuch at 4:00
AM and reached there at around 8:00 to 8:30 AM. When
they went to the house of respondent No.1 and called
Sonal, there was no reply. A man pointed towards a
room and so they went to the room and saw Sonal’s body
lying on the bed. Her legs were hanging to the ground
and her maxi had come upto her thighs. Her clothes
were disorderly. On coming close, they found that
Sonal had died. Foam was coming out from her mouth and
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browncoloured marks were found on her neck. This
witness states that his wife examined the body and
found a sticky substance on her private parts. This
witness further states that there were scratch marks
on her neck and semen stains on her thighs.
PW3 states that he has worked as a Medical
Practitioner for the last thirty years and, according
to him, it seemed that someone had killed Sonal by
strangling her.
This witness further states that a man named
Kishorebhai Jamadar, belonging to his community, had
told him to inform other persons from Borsad, his
native place. As they did not arrive on time, they
cremated the body. He states that after reading an
article in the newspaper regarding the death of his
daughter, he felt that she had been killed by
strangulation. When they were leaving after the
‘Besna’ was over, respondent No.3 stated that they
should take an amount of Rs.10,000/ as he wanted his
son to remarry. Therefore, a cheque of Rs.4,000/ and
a promissory note of Rs.6,000/ was given to this
witness. The promissory note is signed by respondent
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No.1.
This witness further states that at the time of
his daughter’s death, she was pregnant. She had
informed them regarding this fact by letter, stating
that Dr.Kapadia had told her so. This letter was
jointly written by both Sonal and respondent No.1. It
was also stated in the letter that both of them are
happy regarding her pregnancy.
In crossexamination, this witness states that in
the document at Exh.58, the articles required to be
given by the bridegroom have also been mentioned. He
states that when he saw Sonal’s body, he told the
Police that it is not a case of hanging and expressed
his suspicions regarding her death.
This witness admits that in his statement before
the Police, he has not stated that a demand of
Rs.2,000/ was made by respondent No.1 at the time of
the wedding, for alighting from the car. Nor has he
stated that Rs.10,000/ was demanded by respondent
No.2 as dowry on the ground that her son is a Chemical
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Engineer. It is also not stated that a doublebed,
scooter and refrigerator were demanded.
PW3 further admits that he has not stated before
the Police that when he saw the deceased lying on the
bed, her feet were hanging above the ground, her maxi
had come upto her thighs and her clothes were in a
disorderly condition. He states that he does not know
whether it is written in his Police statement that
foam was coming out from Sonal’s mouth and there were
brown abrasions on her neck, or that his wife examined
Sonal’s private parts and found a sticky substance and
semen marks on her thighs and a scratch mark on her
neck. He states that he does not know whether it is
written in his Police statement that on 17.09.1990,
during the ‘Besna’ of Truptiben, respondent No.2 asked
him why he was not giving the articles as agreed upon,
or that the deceased had told him that respondent No.1
has the bad habit of drinking liquor and has an extra
marital affair with a girl called Shaila, which she
does not like. He states that he does not know whether
it is written in his Police statement that Sonal had
told him to give the articles that were demanded, else
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she would be killed.
Denying the contents of his Police statement
given on 13.10.1990, PW3 states that he did not state
before the Police that no physical or mental torture
was given to his daughter Sonal by respondent No.1 or
her inlaws, or that they were living separately. He
denies having stated that his daughter had never
complained of any harassment from the respondents to
him or his wife.
This witness further denies having stated before
the Police that he had heard from respondent No.1 and
his father that Sonal was pregnant by two months but
she did not want to keep the child and wanted to abort
it. He denies stating that there was a discussion
regarding this between respondent No.1 and Sonal and
respondent No.1 told her that they would not take any
decision without discussing this issue with Sonal’s
parents, or on a sudden impulse, without thinking,
Sonal had ended her life by hanging herself from the
fan and committed suicide. He denies having stated
before the Police that he has no other suspicions.
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PW3 further states that on 24.10.1990, he found
many suspicious aspects in the matter, therefore, he
wrote a letter to the Superintendent of Police for
proper investigation as he feared that his daughter
was killed.
He further admits that after 15.10.1990, the
respondents returned the articles belonging to the
deceased. He denies that he had come to the house of
respondent No.1 on 15.10.1990 with other persons in a
tempo and damaged the household articles. He admits
the letters written by the deceased as being in her
own handwriting.
15. PW4, Hasumatiben Rajnikant, is the mother of the
deceased. Her testimony is more or less along the
lines of her husband, PW3. She has deposed regarding
the dowry demands alleged to have been made by the
respondents from them.
16. PW5, Dinaben Amrutlal Bhatt, is the aunt of the
deceased. According to this witness, she and the
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deceased travelled together from the parental house of
the deceased after the ‘Besna’ of Truptiben was over.
They boarded the local train from Borsad to Bharuch
and travelled together for about three hours. During
this time, Sonal had told her that her husband
consumes liquor and is fond of arranging “mehfils”
(gatherings). According to this witness, Sonal
informed her that her motherinlaw, fatherinlaw and
sisterinlaw used to tell her that in spite of the
fact that her father is a Doctor, she had brought
nothing with her and used to torture her regarding
this aspect. This witness states, in cross
examination, that Sonal’s husband, fatherinlaw,
motherinlaw and sisterinlaw used to torture her.
17. PW6 is Madhubhai Ambalal Thakar, who is not
related to the deceased but appears to be a leader of
the community to which her father belongs. He
reiterates the story regarding the dowry demand and
Sonal’s disclosure regarding this to her relatives,
after the ‘Besna’ of Truptiben was over. He states
that Sonal had said that respondent No.1 used to
consume liquor, was fond of “mehfils” and time and
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again demanded a scooter, refrigerator and cash from
her father. He also used to taunt her. According to
this witness, Sonal also disclosed that respondent
No.1 used to torture her mentally and her inlaws used
to visit Bharuch frequently in order to harass her.
When respondent No.1 took Sonal to Vadodara, he used
to call his sister respondent No.4, who also used to
taunt the deceased. It is for this reason that Sonal
did not want to go to her matrimonial house.
This witness states that it does not appear that
Sonal committed suicide on her own but she could have
been driven to do so due to mental torture. That the
community leaders had got together and discussed the
issue and arrived at the conclusion that, in order to
prevent such incidents from occurring, some action
should be taken. They, therefore, made an application
dated 14.10.1990 to the Chief Minister, with a copy to
the Superintendent of Police, Bharuch, upon which all
leaders of the community had signed.
18. Dr.Bharat Vadilal Mehta, who performed the
Postmortem on the body of the deceased, has been
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examined as PW7. This witness states that there was a
ligature mark of 1.5 centimeters on both sides of the
neck of the deceased and foam was coming out from her
mouth and nose. However, there were no marks of injury
on the other parts of her body, including her private
parts.
19. PW8, Kalusinh Sujosinh Rathod, is the
Investigating Officer. Contradicting the testimonies
of PW3, father of the deceased and PW4, mother of
the deceased, he states that PW3 did not state before
him that respondent No.1 had demanded an amount of
Rs.2,000/ for alighting from the car and respondent
No.2 has not asked for Rs.10,000/ as dowry for her
son, on the ground that he is a Chemical Engineer.
This witness states that the respondents have not
stated before him that when they went to the house of
the deceased, they saw her feet hanging above the
ground or that her maxi had come upto her thighs and
her clothes were disorderedly and she was foaming from
the mouth. They did not state that there were brown
coloured abrasions on both sides of her neck. On the
contrary, this witness has stated that PW3 had stated
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before him that his daughter and respondent No.1 were
happily married and his daughter was not tortured
physically or mentally by her husband or any other
person. That his daughter has never complained of any
harassment from them either to him or his wife, by
letter or word of mouth.
20. The Postmortem Report is at Exh.98. The
Postmortem has been performed by PW7. He and another
doctor, have signed thereupon. The cause of death is
stated to be:
“In our opinion, cause of death is due to
Asphyxia following hanging”
21. Several letters written by the deceased to
respondent No.1 and her parents are on record, which
assume importance as they are indicative of the mental
state of the deceased and reveal the kind of family
life she shared with respondent No.1.
22. Upon appreciation and evaluation of the entire
oral and documentary evidence on record, we find that
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the Trial Court is correct in concluding that the
death of the deceased was an unnatural one. We also
find that the conclusion of the Trial Court that there
is no material on record to indicate that the deceased
was done to death by respondent No.1, with the aid of
respondents Nos.2 and 4, or tortured physically and
mentally for dowry, to be correct. The conclusion
arrived at by the Trial Court that the deceased
committed suicide for some reason of her own, maybe
because of a failed previous love affair, cannot be
said to be improbable, looking to the nature of the
evidence on record.
23. We have carefully scrutinised and evaluated the
entire evidence and perused the reasons recorded by
the learned Judge in support of his findings. After
doing so, we find ourselves in full agreement with the
same, for the following amongst other reasons.
23.1 There is no evidence on record regarding any
marital discord between the deceased and respondent
No.1. On the contrary, the letters of the deceased to
respondent No.1 indicate that after meeting him, she
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had regained faith in love, after the previous
disillusionment suffered by her. A letter dated
03.12.1989, written by the deceased to respondent No.1
before their marriage, is indicative of her feelings
in this regard. It appears from the said letter that
the deceased had suffered some kind of disappointment
earlier, due to which she had become “like a stone”.
She has stated that she likes respondent No.1 and
desires to be in his company, but would require a
little time. There are several other letters on record
indicating the relationship between respondent No.1
and the deceased. In a letter dated 08.03.1990,
written after their marriage, the deceased has
referred to another letter from respondent No.1,
asking her to choose a design for a doublebed that he
intended to order for her. In another letter dated
13.03.1990, she states that she had buried feelings
like love, sympathy and faith five years ago and had
become “like a stone”. This may be indicative of an
earlier, failed love affair. Another letter dated
23.09.1990, written by the deceased to respondent
No.1, reveals her excitement regarding the impending
purchase of a television set by him. She writes that
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she would like to come home quickly so that she can
watch television. In a letter dated 09.10.1990,
written jointly by respondent No.1 and the deceased to
the parents of the deceased, it is stated by
respondent No.1 that Sonal is pregnant, her pregnancy
test is positive and she is in good health. In the
part written by the deceased, she has stated that she
is well and has informed her brother Dipu regarding
her pregnancy but told him not to reveal it to anyone.
In another letter dated 06.09.1990, written by the
deceased to her parents, she has stated that
respondent No.1 would soon be purchasing a
refrigerator from the bonus he would be receiving.
23.2 These letters reveal that far from demanding
dowry, respondent No.1 was trying to fulfil his
obligations as a husband and was purchasing household
and electronic goods for the deceased in order to
provide her with the comforts of life. In none of her
letters has the deceased even remotely referred to any
kind of illtreatment, harassment, torture or dowry
demand by respondent No.1 or his family members. The
letters indicate a cordial marital relationship
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between husband and wife and no strife with his family
members.
23.3 The allegation that respondent No.1 has
committed the murder of the deceased by first
strangling her and then hanging her body from the fan,
appears to be a figment of the imagination of PW3,
who never ever whispered regarding illtreatment of
his daughter or dowry demands in his initial statement
to the Police. On the contrary, he had stated that he
has no suspicions regarding respondent No.1 or his
family members as his daughter was never tortured,
either physically or mentally, by them and she and
respondent No.1 were living a happy married life. It
appears that it is only after the intervention of the
leaders of the community, such as PW6, that PW3
began nurturing the idea of converting the apparently
suicidal death of his daughter into a murder by
implicating respondent No.1 and his family. Even the
parents and married sisterinlaw of respondent No.1,
who are admittedly living separately in different
cities, have been roped in. There is no shred of
evidence regarding any dowry demand. The list at
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Exh.58 is regarding customary articles, required
during a marriage ceremony by both sides.
23.4 There is no material on record suggesting
that the deceased was killed by first strangling her
and then hanging her body from the fan. PW7, Dr.
Bharat Vadilal Mehta, has categorically stated that
the death of the deceased was due to asphyxia,
following hanging. The word ‘hanging’ has been used as
the cause of death in the Postmortem Report prepared
by two doctors. Had it been a case of strangulation,
the word ‘strangulation’ would have been used instead
of ‘hanging’. There is a difference between
strangulation and suicide by hanging and the Doctors
are competent to medically differentiate between the
two.
23.5 Several contradictions appear in the
statements of the father and mother of the deceased
given before the Police and their depositions before
the Court. Dinaben, PW5, also emerges as a tutored
witness. It appears that the story of murder and dowry
demand has been introduced as an afterthought, after
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careful deliberation with community leaders. The
allegations made by PW3 and his letters to the Chief
Minister, Home Minister and the Superintendent of
Police, give different versions and are inconsistent
with each other. Most important, the allegations made
in the said letters have not been substantiated by
producing cogent or credible evidence on record.
23.6 The parents of respondent No.1 were
admittedly living separately at Vadodara while
respondent No.1 and the deceased lived at Bharuch.
Respondent No.3 the married sisterinlaw of the
deceased, lived in her matrimonial home at Surat.
There is no material, whatsoever, to connect these
respondents with the commission of the alleged crime
or dowry demands.
23.7 The version that respondent No.1 demanded
Rs.2,000/ to alight from the car and Rs.10,000/ to
sit in the Mandap and respondent No.2 demanded dowry
for her son as he was a Chemical Engineer, appear to
be an afterthought as a result of consultation with
community leaders who decided to make the case an
example so that such incidents do not recur. However,
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there is ample evidence on record, in the shape of the
letters of the deceased, to indicate that she had
received a setback in her love affair before marriage
that had turned her into a “stone”. The tone and tenor
of her letters to respondent No.1, even before
marriage, indicate her hypersensitive nature and
propensity to dwell in the past rather than the
present. She had told her brother not to disclose her
pregnancy to anyone. As per the explanation given by
respondent No.1, the deceased did not want to conceive
a child and when she found she was pregnant, she
wanted to abort it. She, therefore, took the extreme
step and ended her life.
23.8 It is not for the respondents to prove their
defence but for the prosecution to prove its case
beyond reasonable doubt, which it has utterly failed
to do. Why the deceased committed suicide cannot be
answered with any certainty. However, the entire
weight of evidence, including the medical evidence,
points strongly towards a suicidal death rather than
death by strangulation.
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23.9 The presence of respondent No.1 in the house
on the fateful night, being the husband, is entirely
natural. It cannot give a boost to the theory of “last
seen together” sought to be propounded by the
prosecution, in the absence of any corroborative
material indicating that he had killed the deceased
and her death was not a suicidal one.
24. The case rests upon circumstantial evidence and
the prosecution has failed to establish the chain of
incriminating circumstances against the respondents.
No such facts have been established by the prosecution
that can be said to be consistent only with the
hypothesis of the guilt of the respondents, ruling out
every other hypotheses. The chain of circumstantial
evidence is far from complete and the links of the
chain are scattered and uncohesive. The nature of the
evidence adduced in the present case is so flimsy that
it would be highly imprudent to base the conviction of
the respondents upon it. In our view, the Trial Court
has properly appreciated the evidence and arrived at a
legally correct conclusion, by acquitting the
respondents.
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25. We, therefore, find no justifiable reason to
interfere with the judgment and order of acquittal
recorded by the Trial Court.
26. The appeal fails and is dismissed.
27. Bail bonds, if any, stand cancelled. The R P be
sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.)
(B.N. KARIA, J.)
piyush
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