4 Whether This Case Involves A … vs Patel Pravinkumar Kashiram & … on 15 January, 2018

R/CR.A/46/1995 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL No. 46 of 1995

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 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)
Versus
PATEL PRAVINKUMAR KASHIRAM 2….Opponent(s)/Respondent(s)

Appearance :

Ms JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No.
1-3
Mr PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 – 3

CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
January 2018

CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N.

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KARIA)

By way of this Appeal, the State of Gujarat has

challenged the judgment passed by the Court of

learned Additional Sessions Judge, Mehsana in Sessions

Case No. 93 of 1994 dated 28th September 1994 vide

which, the present respondents/accused have been

acquitted by the trial Court for commission of offence

punishable under Sections 302, 304 [B], 498A of the

Indian Penal Code [“IPC” for short] and Sections 3 4

of the Dowry Prohibition Act, 1961.

The facts leading to the Appeal as unfolded during

trial are that – the complainant Chhaganbhai

Virchanddas Patel, resident of Khali has two sons and

three daughters. His son Vishnu is eldest among them

and daughter Ramila is younger to him, Kailashben is

younger to Ramila and Savita is younger to Kailashben.

Whereas, his son Ashwin is youngest among all his

children. His daughter Ramila’s marriage was

solemnized at village Gorad with one Mahendrakumar

Jesangbhai Patel. But, as they did not have harmonious

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relations with each other, they took divorce. As his son

Vishnu’s marriage was also solemnized there, he also

had taken divorce. After passage of twelve months, it

was decided to solemnized marriage of his daughter

Ramila with Pravinkumar Patel, resident of Dhanlaxmi

Society, Mahesana and in exchange thereof, it was also

decided to solemnize marriage of Bhikhiben – sister of

Pravinkumar with complainant’s son named Vishnu.

Thereby, these marriages were solemnized by way of

such exchange. Prior to two months of lodgment of the

complaint, when his daughter got remarried, a gold

chain was given to her, but it was forcefully taken away

from her by Pravinkumar ie., the son-in-law of the

complainant. The complainant’s daughter Ramila told

him that the said gold chain was sold out by her

husband-Pravinkumar. Thereafter, the complainant

advised his daughter to live harmoniously at her in-

laws’ and sent her back by stating that he would

purchase another gold chain for her. Prior to one week

of the incident i.e. on 26/09/1993, Ramila again came

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at the house of complainant and stated in presence his

son, his wife and his brother Bhagwandas that her

parents-in-law and husband have sent her to bring Rs.

20,000/- from her parents which they need for their

other house. She further stated that she has been

clearly told by her in-laws that they will not allow her to

enter into the house unless she brings the said amount.

All present there have pacified her and asked her to

send her father-in-law Kashiram or mother-in-law

Joitiben to discuss in this regard. When Ramila was

asked to go to her in-laws house after her brief stay for

three days at the complainant’s house, she denied to

go there without money. She told that her parents-in-

law and husband would not allow her to live there

peacefully without money. As a result of that the

complainant told her that he or his brother will come to

meet her in-laws in this regard in two days and thereby,

she was persuaded to go to her in-laws house. Due to

death occurred at Kanesara village in the morning on

31-12-1993, there was condolence meeting and the

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complainant went there to attend the same with some

persons of his area, there were persons from

Mahesana. As one of them came to know that we hail

from Khali village, he stated that a woman in

Dhanlakshmi Society, who also hails from Khali village

died due to burning. On knowing this, they inquired

further, but they did not state anything else. Moreover,

the complainant does not even know him. As his

daughter Ramila lived in Dhanlakshmi Society, the

complainant, his brother-Bhagwandas, Vishnubhai and

Amratbhai Shankarbhai hired a jeep and came to Unjha

to see her. He along with his nephew Kantibhai went to

bungalow no. 19B in Dhanlakshmi Society, where his

daughter resided and found that there were many

people standing surrounding the said house and Police

was carrying out investigation at rear side of the house.

When he went into the house, dead body of his

daughter was lying in the hall. Her external clothes

were all burnt; she had sustained severe burn injuries

all over her body and died. Therefore, he asked her in-

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laws Kashiram Prabhudas, Joitiben and son-in-law

Pravinkumar Kashiram who were present there and

they stated that some altercation had occurred on a

previous night; resultantly, Ramila has taken such a

step. Having said this, they did not state anything else.

But, he came to know via hearsay from surrounding

persons that Ramila was strangled by her in-laws and

husband; kerosene was poured on her and she was set

on fire at about 07:00 hrs in the morning. Moreover, he

came to know the fact that aforesaid three persons

quarreled with Ramila throughout the night. Therefore,

the complainant lodged a complaint against all the

respondents [accused] at the Mahesana City Police

Station. Having registered the said complaint, offence

was registered against the said accused.

In the present case, in order to prove its case,

prosecution examined complainant Chhaganlal

Virchandbhai as prosecution witness no. 1 at Exh. 13;

Bhagwanbhai Virchandbhai as PW-2 at Exh. 15; PW-3

Patel Kantilal Ambalal at Exh. 16; PW-4 Manubhai

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Hirabhai Barot at Exh. 17; PW-5 Kanubhai Hirabhai at

Exh. 19; PW-6 Vijaykumar Rameshbhai Rami at Exh. 21;

Medical Officer PW-7 Manilal Amthabhai Prajapati at

Exh. 23 [who performed post mortem of the deceased];

PW-8 Kanubhai Ramshilal at Exh. 26; PW-9 Ramabhai

Manilal at Exh. 27; PW-10 Maheshgiri at Exh. 28; PW-11

Lilaben Ramgiri at Exh.29; PW 12 Laxmanji Ranaji at

Exh. 30 and PW-13 Jassujo Rana at Exh. 47.

On the basis of evidence produced on the record

by the prosecution – both ocular as well as

documentary, it was held by the trial Court that the

prosecution had not been able to prove the guilt of the

accused beyond all reasonable doubt for commission of

offences; as aforestated. Accordingly, had acquitted all

the accused persons [respondents herein].

Feeling aggrieved by the said acquittal, the State

of Gujarat has filed the present Criminal Appeal under

Section 378 of the Code of Criminal Procedure.

We have heard Ms. Jirga D Jhaveri, learned

Additional Public Prosecutor for the appellant-State and

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Mr. Pratik B Barot, learned advocate appearing on

behalf of the respondents-original accused.

Learned APP Ms. Jirga Jhaveri appearing for the

appellant-State questioned legality of the judgment of

the learned Sessions Judge urging that the deceased

was wife of the A1, being not in dispute, the

circumstances which found favour with the trial Court

namely, that the deceased and the respondents were

living together and last seen together; [b] it was for the

respondents to give a reasonable explanation as to how

she died, as they were staying in a common house.

It is further submitted that the prosecution has

clearly proved its case beyond reasonable doubt

against the respondents accused by leading cogent and

satisfactory explanation. However, the learned trial

Judge has committed an error in not believing the

testimony of the material witnesses. That, dowry

demand was made by the respondents with the

deceased Ramilaben; particularly of Rs. 20,000/ for

purchasing a new house from the complainant. As she

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did not fulfill the demand made by the respondents on

a previous night of the incident, they indulged her in a

quarrel and on the next date, early in the morning, this

incident took place in the house of the respondents.

That, these versions were supported by the prosecution

witnesses, particularly father of the deceased as well as

other relatives, however, the learned trial Court has

committed a grave error in not believing the testimony

of the prosecution witnesses.

It is further submitted that soon before the

incident, respondents indulged in a quarrel with the

deceased and this fact was supported by two witnesses

from the prosecution side. That, the medical evidence

also supports prosecution case by examining Doctor

who performed the post mortem. That, the prosecution

witnesses of the scene of offence have also supported

the prosecution, however, the learned trial Judge has

committed grave error in not believing the testimony of

panch witnesses. That, the family members of the

deceased were not informed of the incident having

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taken place immediately. That, after the incident, the

accused never tried to break open the lock of the room

or even tried to save deceased-Ramilaben. That, the

Investigating Officer has also supported the prosecution

by proving statement of the prosecution witnesses who

have turned hostile.

That, the testimony of PW-10 Maheshgiri and PW-

11 Lilaben Ramgiri and other witnesses were recorded

by the Investigating Officer and in his deposition, their

statements were proved by him before the Court below.

That, due to dowry demand made by the respondents-

accused, deceased Ramilaben had received burn

injuries and the prosecution has successfully proved its

case under Section 304B IPC, and therefore, the order

acquitting the respondents by the trial Court requires

interference by this Court. Hence, it was requested by

learned APP Mr. Jhaveri to quash and set-aside the

impugned judgment passed by the learned Additional

Sessions Judge, Mehsana in Sessions Case No. 93 of

1994.

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Per contra, learned advocate Shri Pratik Barot

appearing on behalf of the respondents supported the

judgment and findings arrived at by the learned trial

Court to urge that the cause of death of the deceased

cannot be said to have been caused by strangulation.

That, the circumstantial evidence whereupon reliance

has been placed by the trial Court cannot be said to

have formed a complete link in the chain to arrive at

the guilt of the respondents. That, the testimony of

uncle of the deceased ie., PW-2 is completely contrary

to the deposition of the father of the deceased. That, in

the instant case, father of the deceased is only a crucial

witness from the prosecution side. That, PW-3 Patel

Kantilal Ambalal in his examination-in-chief has stated

that demand of Rs. 20,000/ was made from the

deceased, while in the cross-examination he admits of

there being no talk on this aspect and therefore, the

whole case of the prosecution destroys. Though this

witness supports the complainant, contrary to his

statement before the police on the aspect of demand of

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Rs. 20,000/ as dowry. That, mere cruelty or

harassment; if any, would not be enough to attract the

provision of Section 304B IPC. That, no cogent evidence

under Section 302 IPC was led by the prosecution. That,

the prosecution has clearly failed to establish homicidal

death which is the primary, if not solitary basis, in order

to convict the accused under Section 302 IPC. That, no

medical evidence is available with the prosecution and

no question was asked to any of the prosecution

witnesses examined before the Court by putting a

single question as to whether it was a homicidal death.

It is further argued that it is the first and foremost

aspect which was required to be proved by the

prosecution. On this issue, counsel for the respondents

placed reliance upon a decision of the Apex Court in the

case of Madho Singh vs. State of Rajasthan, [2010]

15 SCC 588.

Learned counsel for the respondents further

argued that the demand of dowry as alleged by the

prosecution is not fully corroborated by the prosecution

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witnesses. That, it can be a case of suicide by the

deceased, but not due to dowry demand made by the

respondents. That, the charge framed by the trial Court

vide Exh. 8 was never proved by the prosecution. It is

further submitted that Section 106 of the Evidence Act

would come into picture in such a case where death

has occurred in a common house and presumption

could be made against the accused persons. That,

although the same may be considered to be a strong

circumstance, but that by alone in absence of any

evidence of violence on the deceased cannot be held to

be conclusive evidence. On this issue, learned advocate

Shri Barot for the respondents has placed strong

reliance upon a decision of the Apex Court in the case

of Subramaniam v. State of Tamil Nadu Anr.,

reported in [2009] 14 SCC 415.

Learned advocate for the respondents drew

attention of this Court to another factual lacunae on the

aspect of no marks of violence having been found on

the person of deceased-Ramilaben; nay marks of

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strangulation on her neck. That, it was not possible to

enter into the room from outside, as it was locked from

inside the room. That, primary investigation was carried

out under Section 174 CrPC as the accidental death, as

dowry death was never proved by the prosecution. In

support of the above contention, learned advocate for

the respondents referred to a decision of the Apex

Court in the case of Bimla Devi v. Rajesh Singh

Anr., reported in 2016 SAR [Criminal] 577.

Concluding his arguments, learned advocate Shri

Pratik Barot appearing on behalf of the respondents

urged this Court to dismiss the present Appeal as the

prosecution has completely failed to prove guilt of the

accused beyond reasonable doubt.

Having carefully considered submissions made on

behalf of the respective sides, it appears that on one

side, the prosecution has tried to level allegations

against the respondents-accused for they having

committed murder of deceased-Ramilaben by

strangulation and pouring kerosene over her body with

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the held of each other and on the other side, it is the

case of the prosecution that there was a demand of

dowry made by the respondents-accused from the

victim, and she was subjected to physical and mental

cruelty prior to her death, and therefore, the accused

have committed an offence punishable under Sections

304B, 498A IPC read with Sections 3 4 of the Dowry

Prohibition Act, since the offence was committed within

a period of seven years of the marriage of deceased-

Ramilaben.

In order to convict the respondents-accused for an

offence punishable under Section 302 IPC, the first and

foremost aspect is to prove homicidal death by the

prosecution. The evidence available on record falls

short to prove homicidal death of deceased-Ramilaben.

According to PW-1Chanalal Virchandbhai, father of

the deceased, his daughter-Ramila was married to

Pravinkumar about one and a half years ago. Initially,

they were at good terms, but thereafter, he started

beating and harassing complainant’s daughter. He sold

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Ramila’s gold chain. When Ramila was brought to her

parental home to attend a social function of her elder

brother, she told that her husband-Pravinkumar and her

in-laws have demanded Rs. 20,000/. At that time, she

was sent back to her matrimonial house.

This witness has also deposed that he came to

know about this incident, when he went to Kanesara to

attend a condolence meeting. Upon being made aware

about the incident, he came at the accused’s house and

witnessed that her daughter was burnt. He came to

know through neighbours that when his daughter went

to take shower, she was strangled. Thereafter, she was

taken to the rear room of the residence where she was

burnt alive by pouring kerosene over her. His

deposition is not corroborated by any other

independent witness nor gets support from medical

evidences either.

Now, according to PW-2-BHagwandas

Virchandbhai, who happens to be brother of the

complainant and uncle of deceased Ramilaben, the

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marriage of Ramilaben was solemnized with A1

Pravinkumar, who sold her gold chain some 3-4 months

after their marriage. When Ramila informed them about

the incident, her father consoled her and told her that

they will buy for her a new gold chain. Thereafter, in-

laws of Ramilaben told her to bring Rs. 20,000/ from

her parents. When Ramilaben told these things to her

father, she was sent her back to her matrimonial house,

after persuasions, and thereafter, this witness received

news that Ramilaben was burnt. Nowhere from his

deposition, it culls out that the accused persons have

strangulated Ramilaben and burnt her alive after

pouring kerosene over her.

And whereas, PW-3 Kantibhai Ambaram in his

deposition has stated that Ramilaben did not have a

happy married life, as the accused persons were

harassing her. They also made a demand of Rs.

20,000/ from her and when she informed her father

about the same, he sent her back to matrimonial

house, after persuasion and thereafter, he received

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news that Ramilaben has got burnt. When this witness

went at Ramila’s matrimonial house, he witnesses that

Ramila was lying in burnt condition. This witness has

not testified that any of the accused persons have

strangled Ramilaben and burnt her, after pouring

kerosene. PW-4 Manubhbai Haribhai Barot is panch

witness of Inquest Panchnama of the dead body and

PW-5 Kanubhai Haribhai is panch to the panchnama of

the scene of occurrence, and whereas, PW-6

Vijaykumar Rameshbhai Rami is panch to the Seizure

panchnama which was drawn while collecting burnt

clothes, carboy of kerosene, etc.

Analyzing deposition of Medical Officer-Manilal

Amthabhai Prajapati, who entered the witness box as

PW-7, it appears he performed postmortem on

deceased Ramilaben and observed second and third

degree burn injuries on her body; except heels and toes

of both the legs, fingers and fingertips of both hands.

No internal injuries were found on her body. This show

that Ramilaben succumbed to burn injuries sustained

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by her, but it is not proved that she was strangled and

kerosene was poured on her to set her on fire.

Analyzing testimony of PW-8 Kanubhai Ramsilal,

this witness has stated that when he was sleeping in his

house on the day of incident, he heard noises coming

from the house of the accused who were indulged in

quarreling with the wife of Pravinkumar and therefore,

they were persuaded by him and Ramilaben was made

to sleep at Maheshbhai’s house. Even as per evidence

of this witness, it is not proved that the accused

persons had strangled Ramila and caused her death by

setting her on fire, after pouring kerosene on her.

PW-9 Ramabhai Manilal, PW-10 Maheshgiri

Kantigiri and PW-11 Lilaben Ramgiri have not

corroborated the case of prosecution in their respective

depositions, and therefore, they have been declared

hostile witnesses. Therefore, the prosecution has

clearly failed to prove that it was a case of homicidal

death.

Now, the question remains whether due to

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demand of dowry by the respondents-accused, the

deceased took extreme step to end her life within a

period of seven years of her marriage so as to attract

Section 304B of IPC ?

Before proceeding any further, it would be apt to

first take note of the fact that here is a case which

admittedly is of unnatural death and the death has

taken within seven years of the marriage of the

deceased. Therefore, prior to considering the

prosecution case as well as defence pleaded, it is

desirable to extract the relevant provisions of Section

304B, which relates to dowry death :

“304B. Dowry death.–(1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
‘dowry death’, and such husband or relative shall
be deemed to have caused her death.

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Explanation.–For the purpose of this
sub-section, ‘dowry’ shall have the
same meaning as in
Section of the
Dowry Prohibition Act, 1961 (28 of
1961).

(2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which
may extend to imprisonment for life.” The above
provision was inserted by Act 43 of 1986 and
came into force with effect from 19.11.1986.
There is no dispute about the applicability of the
above provision since the marriage and the
death occurred in the year 1994 and 1996
respectively.”

In order to convict an accused for the offence

punishable under Section 304B IPC, the following

essentials must be satisfied :

[a] the death of a woman must have been caused by

burns or bodily injury or otherwise than under normal

circumstances;

[b] such death must have occurred within seven years

of her marriage;

[c] soon before her death, the woman must have been

subjected to cruelty or harassment by her husband or

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any relatives of her husband;

[d] such cruelty or harassment must be for, or in

connection with, demand for dowry.

When the above ingredients are established by

reliable and acceptable evidence, such death shall be

called dowry death and such husband or his relatives

shall be deemed to have caused her death. If the

above-mentioned ingredients are attracted in view of

the special provision, the court shall presume and it

shall record such fact as proved unless and until it is

disproved by the accused. However, it is open to the

accused to adduce such evidence for disproving such

conclusive presumption as the burden is unmistakably

on him to do so and he can discharge such burden by

getting an answer through cross-examination of the

prosecution witnesses or by adducing evidence on the

defence side.

Section 113B of the Evidence Act, 1872 speaks

about presumption as to dowry death which reads as

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under:

“113-B. Presumption as to dowry
death.–When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the Court shall presume that such person
had caused the dowry death.

Explanation.–For the purposes of this
section, ‘dowry death’ shall have the same
meaning as in
Section 304B of the Indian
Penal Code (45 of 1860).”

As stated earlier, the prosecution under Section

304B IPC cannot escape from the burden of proof that

the harassment or cruelty was related to the demand

for dowry and such was caused “soon before her

death”. In view of the Explanation to the said section,

the word “dowry” has to be understood, as defined in

Section 2 of the Dowry Prohibition Act, 1961 which

reads as under:-

“2. Definition of ‘dowry’.–In this Act,
‘dowry’ means any property or valuable
security given or agreed to be given either
directly or indirectly–

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(a) by one party to a marriage to the other
party to the marriage; or

(b) by the parent of either party to a
marriage or by any other person, to either
party to the marriage or to any other
person, at or before or any time after the
marriage in connection with the marriage
of the said parties, but does not include
dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies.”

To attract the provisions of Section 304B, one of

the main ingredients of the offence which is required to

be established is that “soon before her death” she was

subjected to cruelty or harassment “for, or in

connection with the demand for dowry”. The expression

“soon before her death” used in Section 304B IPC and

Section 113B of the Evidence Act is present with the

idea of proximity test. In fact, learned senior counsel

appearing for the appellants submitted that there is no

proximity for the alleged demand of dowry and

harassment. With regard to the said claim, we shall

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advert to while considering the evidence led in by the

prosecution. Though the language used is “soon before

her death”, no definite period has been enacted and

the expression “soon before her death” has not been

defined in both the enactments. Accordingly, the

determination of the period which can come within the

term “soon before her death” is to be determined by

the courts, depending upon the facts and

circumstances of each case. However, the said

expression would normally imply that the interval

should not be much between the cruelty or harassment

concerned and the death in question. In other words,

there must be existence of a proximate and live link

between the effect of cruelty based on dowry demand

and the death concerned. If the alleged incident of

cruelty is remote in time and has become stale enough

not to disturb the mental equilibrium of the woman

concerned, it would be of no consequence.

With these principles in mind, let us analyze

evidence led in by the prosecution. Marriage of

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Ramilaben [since deceased] was solemnized with

Pravinkumar [A1]. Within seven years of their marriage,

Ramila died due to burn injuries on 31st December 1993

at her matrimonial home. Father of the complainant

lodged a complaint against the accused persons by

stating that before two months of the incident, when

his daughter Ramilaben visited them to attend a social

function at her elder brother’s home, she told that her

husband had sold the gold chain to which, the

complainant consoled her by stating that they will buy

a new gold chain for her and thereby she was sent back

to her matrimonial home with an advise to live in a

peaceful manner. However, before some two weeks of

the incident, daughter of the complainant visited her

parental home, at that time also, she in presence of his

brother, complainant’s wife and brother Bhagwandas

informed that a demand of Rs. 20,000/ was made by

the accused persons and she was instructed to bring

this amount from her father, as they have purchased a

new house and they were in need of money. She

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asserted that if she would not manage the amount, she

would not be allowed to stay at her matrimonial home.

After deliberation on the issue by the family members,

Ramilaben was sent back to her matrimonial home

without managing the funds demanded by the accused,

after some three days of her arrival at parental home.

Initially, she refused to go back to her matrimonial

home, however, on an assurance from the complainant

that the issue will be resolved, she went back. On 31st

December 1993, he was informed that Ramila was

burnt and therefore, the complainant himself, his

brother-Bhagwandas, Vishnubhai and Amratbhai

Shankarbhai hired a vehicle to reach at the residence of

Ramilaben. When they reached at the house, dead

body of Ramilaben was lying in the hall. Her external

clothes were all burnt. She had sustained severe burn

injures all over her body and succumbed to death, and

when asked, the respondents told that there was some

altercation, the previous night, and as a result thereof,

Ramila has taken such an extreme step. However, this

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witness came to know from the neighbours that

Ramilaben was strangled by her in-laws and kerosene

was poured over her body and she was set on fire at

about 7:00 hours in the morning. The complainant also

came to know about the quarrel which went on all

throughout the night at the residence of her daughter,

and hence, a complaint was lodged by him against the

accused persons. PW-1, who happens to be father of

the deceased Ramila has stated before the Court that

marriage life of his daughter in the beginning was quite

well, but thereafter, she was subjected to cruelty and

harassment at the hands of the respondents.

If we consider averments made by the

complainant in his complaint, it appears that nowhere it

is stated by him that any cruelty was perpetrated upon

his daughter by the respondents-accused persons.

There is material contradiction in the testimony of

these witnesses and complaint lodged before the

Police. Before the Court, the complainant has stated

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that when his daughter Ramilaben came at her parental

home on the festival of Diwali, he was informed that

gold chain given to her was sold out by her husband ie.,

A1. This statement does not get support from any of

the independent witnesses. In fact, he has admitted in

his cross examination that gold chain was given to her

by the respondents. This witness has further stated that

at a social function arranged at his elder brother’s

place, Ramilaben was invited where she informed of

demand of Rs. 20,000/ made by her mother-in-law.

There is nothing on the record that at what time, or on

which date, the alleged demand of Rs. 20,000/ was

made by the accused persons. There is material

contradiction in the deposition of this witness with

other prosecution witnesses on the aspect of demand

of dowry. The complainant further says that Ramila had

informed about such demand in presence of his brother

Bhagwandas Virchand, while his brother feigned

ignorance of any such talk. Thus, deposition of

complainant is quite contrary to his brother ie., PW-2. It

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is accepted by this witness that Ramila and daughter of

A2 A3 were married under satta system [exchange

system] prevailing in their custom where there is no

system of dowry in their community. Thus, when there

is no custom of dowry, indisputably there was no talk in

respect of demand of any dowry at the time of her

marriage with A1. Further, evidence is available to the

effect of second marriage of Ramilaben with

Pravinkumar [A1], as she sought divorce from her

previous husband due to there being no harmonious

relations with him. From the testimony of father, it is

difficult to accept the version of demand of Rs.

20,000/ by the accused persons. PW-2 Bhagwandas,

who is brother of the complainant, has tried to support

the prosecution by saying that Ramila had informed

him that accused persons have changed their

residence, and therefore, her mother-in-law demanded

an amount of Rs. 20,000/ from her. This witness has

stated that Ramila has informed this witness that

demand of Rs. 20,000/ was made to her by the

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accused persons. As per deposition of the complainant,

demand of Rs. 20,000/ was made by the accused

persons from his daughter Ramila and Ramila informed

him about the same in presence of his brother. While

this witness ie., PW-2 has not stated that Ramila had

informed anything in respect of demand of Rs.

20,000/. Thus, deposition of this witness is contrary to

the deposition of the complainant. This witness has also

admitted that in their community, there is a custom of

satta system, but there is no custom of dowry and

therefore also, it would be difficult to accept the

allegation of demand of dowry of Rs. 20,000/ made by

the accused persons. In fact, this witness in his cross

examination has admitted that whenever Ramilaben

used to visit his house, no complaint in respect of any

cruelty or harassment was ever made by her. This

witness has also admitted in his cross examination that

in a religious function “Katha” which was arranged at

his home, Ramila was invited and at that time, no

complaint of any nature was made by her. Whereas,

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the complainant says that in a social function at his

brother’s home, Ramila was invited where she stated of

demand of Rs. 20,000/ made by her in-law, while his

brother Bhagwandas says that there was no talk with

the deceased. Hence, demand of dowry of Rs. 20,000/

appears to be doubtful, so also the testimony of both

these brothers appears to be contrary to each other.

Analyzing further, PW-3 Kantibhai Ambaram has stated

that Ramila was subjected to cruelty by the accused

persons, and therefore, she was visiting her parental

home. This witness has stated that when he visited

Khali, Ramilaben was at her parental home where this

witness was informed by the deceased that she was

subjected to cruelty by her in-laws. In fact, the

complainant or his brother Bhagwandas have never

stated anything about harassment or cruelty meted out

to Ramila at the hands of A2 A3. Thus, testimony of

this witness is completely contrary to the deposition of

complainant and his brother-Bhagwandas. This witness

says that he was informed by deceased Ramilaben that

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frequent demand of money was made by the accused

persons. He has further deposed that before 2-3 days of

incident, Ramila had paid her visit at village Khali and

at that time also, it was informed by her that a demand

of Rs. 20,000/ was made by her in-laws. Here, this

Court would like to divert its attention to the deposition

of complainant and his brother PW-2, as they have

never stated in their testimonies that before 2-3 days of

the incident, Ramila came at village Khali and informed

about the demand of dowry of Rs. 20,000/ made by

her in-laws. Therefore, it can be said that this witness

has given contrary deposition. Complainant himself and

PW-2 have stated that there was a demand made for

the first time from deceased Ramilaben, while this

witness states that there was a frequent demand of

money from her in-laws. Therefore, it would be difficult

to rely upon such a contradictory statements made by

this witness. Thus, from the testimonies of these three

witnesses, it is not proved by the prosecution that any

physical or mental cruelty was given by the accused

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persons and/or demand of Rs. 20,000/ was made by

them. The other witnesses viz., PW-4 Manubhai

Haribhai Barot is panch witness to the Inquest

panchnama of the dead body; PW-5 Kanubhai Haribhai

is panch witness of the place of incident; PW-6

Vijaykumar Rameshbhai Rami is panch to the Seizure

panchnama. From their evidence, it is not proved that

any physical or mental cruelty was given to the

deceased Ramilaben. Medical Officer Manilal Amthabhai

Prajapati who entered the witness box at PW-7 has

stated that due to burn injuries sustained by the

deceased, she succumbed to death.

From the evidence produced on record by the

prosecution, it is not proved beyond reasonable doubt

that due to dowry demand made by the accused [in-

laws] or due to physical and mental cruelty to her,

Ramila committed suicide. PW-8 Kanubhai Ramsilal has

stated that on the previous night of the incident, there

was some altercation at the residence of the accused

persons and upon persuasion, Ramilaben was adviced

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to sleep at the residence of Mahesbhai. From the

deposition of this witness, it cannot be stated that any

physical or mental cruelty was given to Ramila; except

that there was altercation amongst the family members

in the neighbourhod. This witness has not stated about

there being any frequent quarrels with the deceased

Ramilaben and/or any cruelty given to her, nor any

evidence has come on the record through this witness

of any demand of dowry made by the accused persons.

More so, PW-8 Kanubhai Ramsilal refused to accept that

Ramila went to sleep at his house on the previous

night; as stated above. PW-9 Ramabhai Manilal; PW-10

Maheshgiri Kantigiri and PW-11 Lilaben Ramgiri have

not supported the prosecution case and they have

turned hostile, and therefore, no benefit can be given

to the prosecution by referring their testimonies before

the Court, though they were independent witnesses.

Further, it appears from the testimony of PW-12

Laxman that before registering the complaint, he had

already started investigation on receiving an order from

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PSO on 31st December 1993. He has informed PSO by

wireless message about accidental death and inquest

report was prepared together with panchnama of the

scene of offence by calling two panchas.

Thus, from the evidence as discussed hereinabove,

no case is made out by the prosecution under Section

304B or under Section 498A IPC, as the requirement of

law is that the harassment and cruelty should be “soon

before her death” and no evidence has come on record

for this purpose. In order to bring home conviction

under Section 304B IPC, it will not be sufficient to only

lead evidence showing that cruelty or harassment had

been meted out to the victim, but that such treatment

was in connection with the demand of dowry. The

phrase, “soon before her death”, no doubt is an elastic

expression and can refer to a period either immediately

before her death or within a few days or even a few

weeks before it, but the proximity to her death is the

pivot indicated by that expression. The legislative

intent in providing such a radius of time by employing

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the words “soon before her death” is to emphasis the

idea that her death should, in all probabilities, has been

the aftermath of such cruelty or harassment.

We have given our careful and thoughtful

consideration to the rival contentions putforth by either

side and have also scrutinized through the entire

material available on the record; including the

impugned judgment. It appears that the prosecution

has failed to prove its case beyond reasonable doubt

against the accused persons and the learned Additional

Sessions Judge, Mehsana was justified in doubting the

veracity of the prosecution case and recorded finding of

acquittal of all the respondents herein. The said finding

in no way suffers from vice of perversity.

In light of the above discussions, we find no

compelling substantial reason to interfere with the

judgment dated 28th September 1994 passed by the

learned Additional Sessions Judge, Mehsana in Sessions

Case No. 93 of 1994.

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Resultantly, the present Appeal fails and is,

accordingly dismissed. Bail bonds stand cancelled.

[SMT. ABHILASHA KUMARI, J.]

[B.N. KARIA, J.]
Prakash

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