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Arjan Jethabhai Harijan vs State Of Gujarat on 4 December, 2018

R/CR.A/1321/2003 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1321 of 2003

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE A.G.URAIZEE

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 ?

ARJAN JETHABHAI HARIJAN
Versus
STATE OF GUJARAT

Appearance:
MS SEJAL K MANDAVIA(436) for the PETITIONER(s) No. 1
MR K P RAVAL, APP (2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 04/12/2018
ORAL JUDGMENT

1. The present appeal under section 374 of the Code of Criminal
Procedure,1973 [‘the Code’ for short] emanates from the
judgement and order of conviction dated 10.10.2003 passed by
the learned Additional Sessions Judge, Fourth Fast Track
Court, Veraval in Sessions Case No 56 of 2001 whereby and

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R/CR.A/1321/2003 JUDGMENT

where-under, the appellant came to be convicted for the
offence punishable under section 498A of the Indian Penal
Code. [‘IPC’ for short] and directed to undergo imprisonment
for two years and also directed to pay fine of Rs. 2000/-. In
default of payment of fine, the applicant is directed to undergo
rigorous imprisonment for three months.

2. Brief facts of the prosecution case, as could be culled out from
the impugned judgement, are that Govindbhai Mangalbhai
Vaja, PW 1, who happens to be the brother of the deceased
Dikshaben. Govindbhai lodged a complaint with Kodinar
Police Station for offences punishable under sections 498A,
304B and 306 of IPC against the present appellant-Arjan
Jethabhai Harijan, his father Jetha Masri Harijan, his mother
Amarben Jethabhai Harijan and his sister-Samjuben Jethabhai
alleging inter alia that they demanded a sum of Rs. 40,000/-
from PW 1 through deceased who happened to be the wife of
the appellant. PW 1 could not meet the demand therefore, the
deceased Dikshaben was subjected to mental and physical
cruelty by appellant, his parents and sister. The deceased
Dikshaben could not bear the torture, mental as well as
physical, meted out to her. As a result, she ended her life by
jumping in to the well.

3. Complaint of PW 1 was investigated and charge sheet came to
be filed against the appellant, his parents and sister in the
Court of learned JMFC, Kodinar. As the offence is committed

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R/CR.A/1321/2003 JUDGMENT

by the appellant and other co-accused persons was exclusively
triable by the Court of Sessions, the learned Magistrate
committed the case to Sessions Court under section 209 of the
Code, where it was numbered as Sessions Case No. 56 of
2001.

4. Charge vide Exh 1 came to be framed against the appellant
and other co-accused persons who pleaded not guilty and came
to be tried. The prosecution, in order to bring home the case
against the appellant adduced the following oral evidence:

A. Complainant

1. PW 1 , Govindbhai Mangalbhai Vaja was examined at
Exh 15

B. Prosecution Witnesses

1. PW 2, Maniben Mangabhai was examined at Exh 17

2. PW 3, Shamjibhai Mangaljibhai was examined at Exh
18

3. PW 5, Keshubhai Mangalbhai was examined at Exh 23

4. PW 6, Meenaben Mangalbhai was examined at Exh 24

5. PW 9, Muliben Govindbhai was examined at Exh 28

6. PW 10, Kadubhai @ Naranbhai Karsanbhai was
examined at Exh 29

C. Medical Officer

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R/CR.A/1321/2003 JUDGMENT

1. PW 11, Dr. J.J.Rachchh was examined at Exh 31

D. Panchwitnesses

1. PW 7 Karsanbhai Pujabhai was examined at Exh 25

2. PW 8 Nagalben Karsanbhai was examined at Exh 27

3. PW 12 Laxmanbhai Bheemabhai Gohel was examined at
Exh 33

E. Police Witnesses

1. PW 4 Head Constable Umarbhai Ismilebhai PSO was
examined at
Exh 19

2. Police Sub Inspector L.J.Higrajiya, Investigating Officer
was examined at Exh 35

5. The prosecution also produced and relied upon following
documentary evidence:

FIR produced at Exh 16
Station Diary produced at Exh 20
Postmortem Report produced at Exh 32
Inquest panchnama produced at Exh 26
Panchnama of scene of offence produced at Exh 34

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R/CR.A/1321/2003 JUDGMENT

6. After conclusion of the evidence of the prosecution, statement
under section 313 of the Code of the appellant and co-accused
persons came to be recorded wherein their case is of complete
denial. In support of their defence, they examined following
defence witnesses:

1. DW 1, Haribhai Jethabhai was examined at Exh 41

2. DW 2, Laxmanbhai Sidibhai Gohil was examined at Exh
42

3. DW 3, Principal G.P.Thakar was examined at Exh 44

4. DW 4, Rajabhai Ranabhai was examined at Exh 46

7. Following documentary evidence was produced on behalf of
the appellant and co-accused persons in the evidence of
defence witnesses.

1. Attendance Sheet produced at Exh 45

2. Constitution of Dowry practice produced at Exh 47

8. The learned Trial Judge convicted the appellant for offence
punishable under section 498A of IPC and directed him to
undergo rigorous imprisonment of two years and also directed
to pay fine of Rs. 2000/-. In default of payment of fine,
directed to undergo rigorous imprisonment of three years. The
learned Trial Judge acquitted the appellant of charges under
sections 304B and 306 of IPC. The other accused persons were
acquitted of all the charges. The appellant being aggrieved by

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R/CR.A/1321/2003 JUDGMENT

the conviction under section 498A of IPC, has preferred this
appeal.

9. I have heard Ms. Sejal Mandavia learned advocate for the
appellant and Mr. K P Raval learned APP for the respondent-
State. I have also perused the record and proceedings of the
case.

10. Ms. Sejal Mandaviya vehemently submitted that the
learned Trial Judge has committed a serious error in
convicting the appellant under section 498A of IPC. In
absence of any cogent and reliable evidence, she stoutly
submitted that evidence of PW 1 and other material witnesses
suffered from material contradictions. She also submitted that
witnesses examined on behalf of the prosecution are related
witnesses being brother, mother, sister of the deceased. She
therefore urged that the appeal may be allowed and conviction
may be set aside.

11. Mr. K.P.Raval learned APP has strongly opposed this appeal.
He submitted that the evidence of PW 1 and other witnesses,
though related, is consistent and does not suffer from material
contradictions or embellishment. He submitted that their
testimonies are natural and there is no reason to discard and
disbelieve their testimonies. He further submitted that the law
only requires careful scrutiny of the testimonies of related
witnesses and if such testimonies are found reliable and

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R/CR.A/1321/2003 JUDGMENT

trustworthy, conviction can be based on such evidence. He
submitted that the learned Trial Judge has found the evidence
of all the witnesses reliable and trustworthy by assigning
cogent reasons and therefore no interference is warranted in
the impugned judgement and order of conviction. He
submitted that the marriage span between the appellant and
deceased Diksha was around one year and therefore,
presumption under section 113A of the Evidence Act would
come into play and therefore, the learned Trial Judge was
justified in convicting the appellant under section 498A of
IPC.

12. In order to appreciate the argument canvassed at the bar,
it would be appropriate to have bird’s eye view of the evidence
of relevant witnesses to find out whether the appellant had
meted out any mental or physical cruelty to his wife-deceased
Dikshaben.

13. Govindbhai Mangalbhai Vaja PW 1 who is the brother of
deceased Dikshaben is the original complainant. It emerges
from his testimony that the marriage between the appellant and
deceased was performed around one year before the incident.
After their marriage, deceased Dikshaben started her
matrimonial life by living with the appellant and her in-laws at
village Khan. He stated in his testimony that the appellant
used to beat the deceased and demand money from the
deceased. He further stated that his sister was sent to parental

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R/CR.A/1321/2003 JUDGMENT

home after beating her. The appellant and his father came one
week after to take the deceased back. At that time, PW 1 had
asked them to go with two persons of their community.
Thereafter, on next day, the deceased was sent to her
matrimonial home with her mother Maniben, PW 2. He further
stated that around after fifteen days, he went to the house of
the appellant where he found that everything was alright. The
deceased came to his house one month thereafter and on being
asked, she told that her mother-in-law, father-in-law and sister-
in-law (nanand) were instigating the appellant to ask deceased
to bring money from brother i.e. PW 1 otherwise they do not
want to keep her.

14. It is very clear from the testimony of PW 1 that when the
deceased came to her parental home for the first time, she
made a grievance that appellant alone was demanding Rs.
40,000/- and subjecting her to mental and physical ill-
treatment.

15. Thereafter, when PW 1 went to see the deceased at her
matrimonial home, he found everything alright and the only
grievance made by the deceased was that upon instigation by
her in-laws, the appellant was asking her to bring money from
PW 1. He was threatening that he did not want to keep her. It
is thus very much clear from the evidence of this witness-
complainant that after the first incident, when the appellant

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R/CR.A/1321/2003 JUDGMENT

and his father were counseled not to ill-treat the deceased and
not to demand money, at least the ill-treatment part of the
misfortune of the deceased Dikshaben had stopped and there
was no physical ill-treatment meted out to her by the appellant.
On his visit to the matrimonial home of the deceased. PW 1
was only told that the appellant was telling the deceased that
he was not keeping her if the demand for money is not met. In
any case, there was no physical and mental ill-treatment.

16. Maniben Mangabhai, PW 2, mother of the deceased is
examined at Exh 17. She has also deposed more or less on the
line of testimony of PW 1. It emerges from her testimony that
her daughter was subjected to ill-treatment for not bringing Rs.
40,000/- and that the appellant and other accused persons had
thrown her daughter into a well. The testimony of this witness
does not reveal the nature of ill-treatment or cruelty which was
meted out to the deceased. She has stated in too general terms
that her daughter was subjected to ill-treatment on account of
not bringing Rs. 40,000/-.

17. Shyamjibhai Mangalji, PW 3, the brother of the
deceased was examined at Exh 18. He only stated in his
testimony that the marriage life between the appellant and the
deceased was good for sometime after the marriage but
thereafter, she was physically and mentally ill-treated and was
asked to bring Rs. 40,000/- from her parents. As the demand
for money was not met, he stated that his sister jumped into a

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R/CR.A/1321/2003 JUDGMENT

well because of ill-treatment on account of non-fulfillment of
demand of money.

18. Keshubhai Mangalbhai Vaja, PW 5, is the brother of
deceased Diksha. He also stated in his testimony that the
deceased was subjected to mental and physical cruelty by the
appellant on account of demand of Rs. 40,000/-. He also stated
that lastly, his sister had come to parental home six months
before the incident. Similar is the evidence of Meenaben
Bhikhabhai, PW 6, who is the sister of the deceased. She was
the panch of inquest panchnama but then she, in her testimony,
stated that she had come to know that there was a demand of
Rs. 40,000/-. One Nagalben Karsanbhai, PW 8, was also sister
of the deceased. She was also one of the panchas of inquest
panchnama. She stated in her testimony that the deceased had
told to her sister-in-law (bhabhi) that she had problem at her
matrimonial house. Her sister-in-law Muliben told this fact.

19. The witnesses have consistently stated in their respective
testimonies that the deceased Diksha was treated with cruelty
on account of non-fulfillment of demand of Rs. 40,000/- but
the analysis of the evidence of these witnesses makes it clear
that except PW 1, brother of the deceased, rest of the witnesses
have stated in their testimonies that the incident had happened
six months before. While according to PW 1, the incident had
happened around one month before. Moreover, if the
complaint is seen, it is alleged therein that there was a demand
of Rs. 25,000/-. Witnesses in their respective evidence before

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R/CR.A/1321/2003 JUDGMENT

the Court have stated that there was a demand of Rs. 40,000/-.
Essentially, the issue which requires consideration is whether
there was immediate provocation for the deceased to end her
life and that the ill-treatment meted out to her was so incessant
that she had no option but to end her life. Sofar as offence
punishable under sections 304B and 306 are concerned, the
Trial Court has acquitted all the accused persons including the
appellant but the Trial Court has chosen not to convict the
appellant under section 498A of IPC on the basis of evidence
of the material witnesses. Scrutiny of material witnesses does
not reveal that there was incessant, unbearable mental and
physical torture meted out to the deceased by the appellant.
The main thrust of the allegation was that the in-laws and
sister-in-law (nanand) of the deceased were instigating the
appellant. The learned Trial Judge has not believed the
prosecution case on this material aspect and therefore, if the
main allegation of instigation on part of the parents in-laws,
appellant and sister-in-law of the deceased is discarded, in my
view, no evidence remains which would connect the appellant
with the offence punishable under section 498A of the Code. It
is a settled proposition of law that in first place, the
prosecution has to establish that there was an ill-treatment
meted out to the hapless wife and there has to be further
evidence to clearly indicate that such harassment and cruelty
was so frequent and unbearable that the wife would be led to
end her life. Upon microscopic analysis of the evidence of the
prosecution, I do not find any such evidence to record a

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R/CR.A/1321/2003 JUDGMENT

conclusion that the appellant had meted out any cruelty to the
deceased warranting his conviction under section 498A of
IPC. I am therefore of the view that the conviction of the
appellant for the offence punishable under section 498A of the
Code cannot be sustained. The impugned judgement and order
of conviction warrants interference in this appeal.

20. For the foregoing reasons, the appeal succeeds and is
hereby allowed. Judgement and order of conviction dated
10.10.2003 passed by the Additional Sessions Judge, Fourth
Fast Track Court, Veraval, in Sessions Case No. 56 of 2001 is
hereby quashed and set aside. The appellant is acquitted of the
charges leveled against him under section 498A of the Indian
Penal Code. Fine, if any, deposited by the appellant be
refunded to him.

Bail bonds furnished by the accused stand discharged. R P
to be transmitted back to the concerned Trial Court forthwith.
Criminal Appeal is disposed of.

(A.G.URAIZEE, J)
JYOTI V. JANI

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