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Harshadbhai Bharatbhai Ramavat vs State Of Gujarat on 5 July, 2018

R/CR.A/1413/2007 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1413 of 2007
With
R/CRIMINAL APPEAL NO. 106 of 2008
With
R/CRIMINAL REVISION APPLICATION NO. 596 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G. SHAH

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 ?

BHARATBHAI JAMNADAS RAMAVAT
Versus
STATE OF GUJARAT

Appearance:

MR SB TOLIA, ADVOCATE FOR MR JAYPRAKASH UMOT(3581) for the
PETITIONER(s) No. 1
MR KL PANDYA, ADDL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

Date : 05/07/2018

CAV JUDGMENT

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R/CR.A/1413/2007 CAV JUDGMENT

1. Heard learned advocate Mr. S. B. Tolia with learned advocate

Mr. Umat for the appellants – accused in Criminal Appeal Nos.1413

of 2007 and 106 of 2008, as well as for all the respondents in

Criminal Revision Application No.596 of 2008, whereas learned

advocate Mr. S. T. Kotia for original complainant being petitioner

in Criminal Revision Application No.596 of 2008 and learned APP

Mr. K. L. Pandya for the State being prosecuting agency. All these

matters are arising out of common judgment dated 15.11.2007 in

Sessions Case No.36 of 2005 by the Additional Sessions Judge of

Fast Track Court of Porbandar @ Porbandar.

2. Before the Sessions Court, in such Sessions Case in all there

were 5 accused, amongst which accused No.1, appellant of

Criminal Appeal No.106 of 2008 is husband of the victim, since his

wife has died at his house. Whereas accused Nos. 2 and 3 are

brothers of the accused No.1. Thereby brother in law of the victim.

Accused Nos. 4 and 5 are respectively father in law and mother in

law of the victim. However, by impugned judgment, the Sessions

Court has already acquitted accused Nos.2, 3 and 5 and, therefore,

when the Sessions Court has convicted accused Nos. 1 and 4 i.e.

husband and father in law of the victim, both have preferred

separate appeals considering the fact that conviction of both of

them is different.

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3. By impugned judgment, the Sessions Court has convicted the

accused No.1 – husband of the victim to undergo 10 years rigorous

imprisonment under Section 306 of the Indian Penal Code and

Rs.25,000/- penalty or to undergo two years rigorous imprisonment

for non payment of such fine. Whereas he is also convicted for 3

years rigorous imprisonment with Rs.10,000/- fine and for non

payment of fine, 1 year of rigorous imprisonment under Section

498A of the Indian Penal Code. However, both these conviction are

to be undergo concurrently and, therefore, practically total

conviction is 10 years and Rs.35,000/- fine.

4. Whereas accused No.4 being appellant in Criminal Appeal

No.1413 of 2007 i.e. father in law of the victim has been convicted

only under Section 498A of the Indian Penal Code with a

punishment of three years rigorous imprisonment and Rs.10,000/-

fine or to undergo 1 year rigorous imprisonment for non payment

of fine.

5. In both appeals, appellants being original convict accused

have challenged the order of conviction and sentence. Whereas in

Criminal Revision Application No.596 of 2008, original complainant

being father of the victim has challenged the impugned judgment

for converting the conviction of accused Nos. 1 and 4 and acquittal

of accused Nos. 2, 3 and 5 into conviction under Section 302 of the

Indian Penal code instead of conviction under Section 306 and

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498A of the Indian Penal Code.

6. In view of above factual situation, all these three matters

were heard together and disposed of by this common judgment.

7. If we peruse the record of Criminal Revision Application

No.596 of 2008, by an order dated 04.08.2010 it was simply

ordered to be tagged along with such criminal appeals only

because of the disclosure before the Court that appeals preferred

by convicted accused are admitted and pending. Thereby,

practically such revision was never considered on merits and never

admitted for further consideration. It is also found from record

that though original complainant has filed, revision petition against

acquittal, prosecution agency has not challenged the impugned

judgment, in any manner.

8. Therefore, at first instance, it would be necessary to verify

and scrutinize that whether there is any substance in the appeal or

not and if there is substance in the appeal, which requires to

modify such impugned judgment of conviction or sentence, then

there is least chance of interfering with the judgment of acquittal,

unless, there is an extraordinary case in favour of prosecution to

modify the acquittal into conviction in revision petition by the

complainant, more particularly, when prosecution has not

challenged such judgment either for converting the conviction of

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accused Nos. 1 and 4 from conviction under Section 306 and 498A

of the Indian Penal Code to conviction under Section 302 of the

Indian Penal Code or reversing the acquittal of accused Nos. 2, 3

and 5 so as to convict them under Section 302 of the Indian Penal

Code.

9. All the parties have argued the matter at length and refer

several evidence on record which is according to them confirming

their stand so as to conclude that death of the victim was not

suicidal, but she was killed by the accused. Before discussing the

evidence and factual details, let us recollect the case of the

prosecution before the trial Court in nutshell, which can be

summarized as under;

9.1 Accused No.1 Harshad and victim Alpaben @ Alkaben were

got married on 08.08.1997. – The fateful incident wherein Alpaben

was found dead in her room was happened on 04.10.2004 i.e. after

7 years and 2 months from the date of marriage and, therefore,

there is no scope of considering the presumption against husband

or to shift the burden of proof upon him so far as incident of death

of his wife is concerned. – As usual there is a story of ill-treatment

by the in laws to the victim contending that after marriage there

was no disturbance for initial 8 months and all the accused and

victim were residing in joint family but thereafter, all the accused

have started ill-treating the victim and she was harassed and

tortured. There is specific allegation that the accused No.4 father

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in law has asked for undue demand by holding the hand of the

victim and since, victim could not tolerate such demand, she had

gone to her parental house at Bhavnagar and stayed there for 5

years. Thereafter, upon compromise between the parties, she had

been to the house of her in laws at Porbandar where she stayed for

10 days but during such period again, accused have started

quarreling with her on small issues and again harassed and

tortured her and also beaten her. – It is also alleged that thereafter

when she had been to her inlaw’s house during Janmastami, she

was again ill treated and she had went back to her parental house.

Because of such ill treatment, victim has conveyed to her parents

that she does not want to stay in the house of her in laws and she

would like to stay separately with her husband. However, it was not

agreed upon by the accused and, therefore, she has asked for

divorce from her husband. However, accused has denied to get

divorce from her and with a common intention of all, the accused

with the intention to kill her, when she had been to Junagadh at her

sister’s house, called to come to Porbandar under the pretext of

getting transfer from Bhavnagar to Porbandar. It is an undisputed

fact that victim was serving as a teacher in Bhavnagar district and

that her parental house is at Bhavnagar, whereas her matrimonial

house at Porbandar which is at sufficient distance to reach in short

time. – It is further alleged that on 04.10.2004 when victim had

been to the house of her in laws for getting transfer from

Bhavnagar to Porbandar at about 1:00 a.m. i.e. after midnight, the

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accused have tied up the victim’s hands by rope and killed her by

pressuring her neck and for the purpose they have created

unlawful assembly. Therefore, after investigation, investigating

agency has filed a charge – sheet under Sections 34, 302 and 498A

of the Indian Penal Code against all the accused.

10. Whereas the case of the accused is to the effect that, in fact a

separate flat was purchased for accused No.1 and victim and she

has agreed to get her services transferred from Bhavnagar to

Porbandar, for which she came to Porbandar but she wants to stay

separately immediately from day one and when her in laws have

conveyed her that to start a separate house with kitchen requires

some preparation and financial support and, therefore, asked her

to wait for some time. It is also submitted that otherwise separate

house is purchased for husband and wife, there was no reason to

deny to allow them to stay separately but to start a new house they

need some time, but unfortunately, victim does not want to wait for

any more and instead of waiting for couple of days, she has

committed suicide by hanging herself with a fan in the house of the

accused and, therefore, it is the case of a suicide and not murder

and thereby, they should be acquitted.

11. Before discussing any evidence or any details, some

undisputed facts may be recollected here vize;

(1)The incident was happened on 04.10.2004 i.e. after 7 years

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and 2 months from the date of marriage being 08.08.1997.

(2)The total stay of victim with an accused i.e. husband and in

laws is seemed to be only for less than a year in total i.e. 8

months and first instance and couple of days on two

occasions thereafter, that too after the gap of 5 years.

(3)There is no evidence that after those 3 occasions when she

has been alleged to have ill treated she has ever been at the

house of her in laws.

(4)It is not the case that she was residing with the in laws for a

long time for last 6 years.

(5)It is also an undisputed fact that irrespective of cause and

reason of allegations, the in laws have agreed to allow the

accused No.1 and victim to stay separately and for the

purpose, flat was purchased.

(6)It is an undisputed fact that even after marriage, victim has

joined the services as a teacher in Bhavnagar district

knowing fully well that such services is not transferable.

(7)It is an undisputed fact that husband is having practice as

BHMS Doctor at Porbandar and, therefore, he is unable to

shift his residence from Porbandar to somewhere in

Bhavnagar district where he has to start fresh, becuase in

Porbandar he has got reputation since his father was also

BHMS Doctor who is accused No.4.

(8)It is also an undisputed fact that though accused No.1 had

called the victim to come to Porbandar, the victim has on her

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own agreed to go to Porbandar with accused No.1 so as to

get her services transferred from Bhavnagar to Porbandar

district. In that case, there is least chance of having any

apprehension of ill treatment by her in laws, else she would

not agree, either to go to Porbandar or to get her services

transferred from Bhavnagar to Porbandar.

12. Therefore, considering the circumstantial evidence, prima

facie, it seems that when victim has agreed to get herself

transferred from Bhavnagar to Porbandar and went to Porbandar

for the purpose, there may not be any ill treatment at least by the

husband, when it is an undisputed fact that she is ready to stay at

Porbandar, if her husband resides separately from his family.

13. In view of above factual details, prima facie, it seems that

there is no reason for the respondents to kill the victim, who was

otherwise not residing at her in-laws’ house, since more than 5

years and when she herself has asked for divorce and accused No.1

has refused to take divorce from her. Otherwise to get rid from the

victim, accused No.1 would have agreed to get divorce and would

not take a risk of calling her at his house and then to kill her, as

alleged.

14. However, rival contentions are in detail and it is mainly with

reference to the position of dead body after the incident and cause

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of dispute between husband and wife with reference to improper

behavior by the accused No.4 being father in law of the victim.

14.1 So far as cause of death is concerned, it is vehimitically

argued by the complainant and prosecution that there were marks

on hand to show that there were injuries as if hands were tied. For

the purpose, they have relied upon the evidence of Dr.Ganesh

Pryarelal Govekar being PW No.13 at exhibit 17. It is submitted by

the complainant and prosecution that said Doctor, who has

performed the Postmortem of the victim at Bhavnagar has

categorically deposed in para 11 to 13 that ligature mark on wrist,

was possible by mudamal article No.2, which is found from the

place of incident and ligature mark on neck of the victim is possible

by piece of sari which was used to kill the victim. It is also

observed that if somebody was killed by hanging then there will be

no injury mark on other parts of the body. When more than one

person tied up the hands of the victim and hanged her, then there

is a possibility of injury which found on the body of the victim.

However, such 2-3 suggestions that too put forwarded as

suggestion in examination in chief alone and by the Doctor of

Bhavnagar who has performed postmortem second time then the

original postmortem performed at Porbandar and when

complainant is residing at Bhavnagar, one has to be careful in

coming to the conclusion solely based upon such suggestive

questions and answers for confirming conviction, because, it is an

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undisputed fact that except these three lines, entire evidence on

record including deposition of some witnesses so also postmortem

note issued by him confirms that the death of the victim was due to

hanging and even in his oral evidence, the same doctor has

admitted during cross examination in para 14 to 45 as under;

‘Gujarati’ is not his mother tongue. – Injury Nos. 2 to 5

mentioned in Column 17 was not examined by cutting the skin and

thereby, it was not examined internally. – No such injury was

examined by microscopic test. – The outer appearance confirms

bruises (continuance) only.- He admits observations on page 145 in

the medical jurisprudence and toxicology by Dr. K. S. Narayan,

which confirms that above injuries are called postmortem staining.

He admits that in column 12 of the postmortem note, it is

categorically disclosed that the postmortem lividity on posteriors

because of pressure. Postmortem lividity is also seen on both heels

and the word ‘postmortem lividity’ is synopsis to word ‘postmortem

hypostasis’ and word ‘postmortem staining’. – He admits that after

death because of stoppage of blood circulation, there would be

postmortem staining due to capillovenous distention, which shows

bluish purple or purplish red marks which looks like bruises or

continuance. It is caused by stoppage of circulation, the stagnation

of blood in blood vessels, and its tendency to sink by force of

gravity. The blood tends to accumulate in the small vessels of the

dependent parts of the body. Filling of these vessels produces a

bluish – purple colour to the adjacent skin. – He also admits that

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other disclosures from the different medical jurisprudence which

confirms that if body would move, such postmortem staining was

also get changed. – In paragraph 25 now he categorically admits

that it is true that when dead body of the victim was brought from

Porbandar to Bhavnagar, distance between which is approximately

300 kms. in vehicle by keeping her dead body laying in such

vehicle, it is possible that because of movement of vehicle, the

marks were found on the hands of the body of the victim and that

such postmortem stains was possible during such transfer and that

when he has examined the dead body the blood in the dead body

was in fluid condition and thereby lengthy cross examination in

previous para is material wherein Doctor has to admit that such

injuries were possible because of postmortem staining and more

particularly when dead body was transferred for approximately 300

kms. – Doctor has further admitted in paragraph 26 that

postmortem lividity were defused and spread and he admits

all the comments in different medical jurisprudence which

were placed in his hands and read it, wherein it is

categorically stated that isolated patches of postmortem

lividity may be mistaken as bruises. – Doctor has admitted all

other comments read out to him in medical jurisprudence in

paragraph 27 to 42 also. However, its reproduction is not material

at this stage, when doctor has categorically admits that it is true

that to decide that whether signs on dead body is of postmortem

staining or bruises such injury is to be examined by opening that

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part of the body. – It is admitted position that it is categorically

admitted by the doctor that he has not examined such injuries the

way in which it is required by opening that part of the body. –

Doctor has admitted that if body part is cut and open and if it is

bruises, blood would found in clotted position, whereas if there is

post mortem staining and body part is cut and opened, then blood

will not be found in clotted position and it would found in liquid

position as a drop. Even at the cost of repetition it is recollected

that thereby unless such injuries are verified by cutting the body,

even doctor cannot opined that whether it is postmortem staining

or bruises. Therefore, even if in examination in chief it is stated

that injuries found on body are possible if hands are tightened, it is

only a general opinion and cannot confirm that victim’s hands were

tied by rope, so as to kill her by hanging; – such postmortem

staining is possible when body is travelled long distance; – In

present case, body has been transferred for almost 300 kms. and

such injuries are possible even during such travel; – Doctor has in

paragraph 29 accepted that considering the time of death

and second postmortem there is possibility of mistake in

considering postmortem staining as bruises and

continuance; – In paragraph 33 of his cross – examination

doctor has no option but to admit that he cannot say with

clarity and confirmed that injuries on death body of the

victim was postmortem staining or bruises. In paragraph 38

of his cross examination, the Doctor has again categorically

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admits that the ligature mark found on the dead body can be

possible only during hanging since it is only on upper side

whereas in case of strangulation; as alleged and for which

complainant wants accused are to be convicted; the ligature

mark did not found on upper side but on transverse

directions. The dead body of the victim was having ligature

marks towards upper side of the injury. In paragraph 39

Doctor has further admits that the ligature marks found on

the dead body were suggesting that it is the case of hanging

and, therefore, in postmortem note he has given cause of

death as hanging asphyxia. – It is an undisputed fact that in

postmortem note cause of death is “asphyxia due to

hanging”, and there is no reference of strangulation. –

Doctor has admitted that there is no presence of poison as

per the bicera report and after examination of exhibit 79, a

report by first doctor has categorically opined in paragraph

41 that death of the victim was because of hanging. – Doctor

has also admitted in paragraph 43 there were no signs of

struggle by the victim and, therefore, in absence of signs of

struggle he is confirming that this is the case of suicidal

hanging.

14.2 Therefore, amongst 28 witnesses this key witness, a Doctor,

who has performed postmortem of the dead body of the victim at

Bhavanagr at the place where complainant is residing and which is

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almost 300 kms away from the place of incident now there is no

scope to disbelieve the version of such doctor which is discussed

herein above and, therefore only because of some answers in para

11 to 13 in his examination in chief against suggestive questions

and his opinion cannot be relied upon to convict the accused under

Section 302 of the Indian Penal Code as prayed for in revision

petition by the complainant.

15. The details of all the evidence recorded by the Sessions Court

is very well disclosed in paragraph 5 whereby, there are as many as

28 witnesses and as many as 32 documents produced by the

complainant for proving the commission of crime. Though minimum

circumstantial evidence is sufficient whereas in present case, the

evidence of Dr. Ganesh Pyarelala Govekar who is doctor in

confidence of the complainant and at Bhavnagar has categorically

deposed on oath that death of the victim was because of suicidal

hanging and not strangulation as alleged by the prosecution and

complainant, there is no scope of converting the conviction from

Section 306 and 498A to 302 of the Indian Penal Code as prayed

and alleged by the prosecution and the complainant. Because of

such observations and discussion the revision application needs to

be dismissed.

16. It is also undisputed fact that first doctor who has performed

postmortem at Porbandar i.e. Dr. Vipulbhai N. Modha as PW No.12

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at exhibit 64 has in categorically terms confirmed that cause of

death is suicidal hanging, in his examination in chief itself.

Whereas in his cross examination prosecution has brought several

factual details on records which is in conformity of his opinion and,

therefore, it is not reproduced. However, it is to be recorded that,

in fact, accused have taken care of proving the death as a suicidal

hanging by such doctor, because of which Dr. Govekar could not

deny several factual details. However, when both the doctors have

finally concluded that cause of death is suicidal hanging, there is

no option but to held that it is the case of suicide only and not

strangulation. Therefore, there is no scope to convert the acquittal

into conviction or to modify conviction under Section 306 to

conviction under Section 302 of the Indian Penal Code.

17. Rest of the oral as well as documentary evidence are not

much material to be discussed herein because it is by Doctor who

has performed postmortem at Porbandar namely Dr. Vipul Modha,

postmortem note issued by him which confirms that cause of death

is asphyxia by hanging and in deposition, such doctor has

specifically confirms such opinion that it is a suicidal death. This

witness was also cross examined at length wherein he has

confirmed all the factual details which were confirmed by Dr.

Ganesh Pyarelal Govekar, PW No.13 at exhibit 72 who has

performed postmortem at Bhavnagar. The deposition of Forensic

expert and investigating officer as well as few other witnesses are

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not much material except to confirm that investigating officer has

admitted the contradiction by the witnesses and rest of the

witnesses has narrated the factual details with reference to

investigation and inquiry made by them. The investigating officer

being PW No.26 at exhibit 120 namely Dhanjibhai has in detail

admitted all the contradictions of all the witnesses though he has

tried to support his prosecution, which is obvious. The scrutiny of

deposition of the Investigating Officer on the contrary makes it

clear, he admits several statement by witnesses before him that

none of the witness has ever disclosed about ill tratment to the

victim by her father in law i.e. appellant No.4 though there was

some general story about harassment by all the in laws. However,

as disclosed herein above there is little scope of any harassment.

18. Then the only question remains is whether conviction under

Section 306 and 498A of the Indian Penal Code can sustain when

now it is concluded that cause of death is suicidal hanging and not

by strangulation by the accused or somebody else. For the purpose,

appellants have referred and relied upon several deposition and

documents amongst evidence on record. List of which is as under;

PW/DW EXH. PARTICULARS
NO. NO.
1 16 Jitubhai Premjibhai Bhamaniya (Panch of
inquest panchnama)
17 Inquest Panchnama
2 18 Meraman Lakhabhai Kodiyatar (Panch of
inquest panchnama)

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3 19 Mulubhai Hathiabhai Vadodara (Panch of

panchnama of things recovered from the scene
of offence.)
20 Panchnama of things recovered from the scene
of offence.

4 25 Daxaben Ramniklal Rathod (Panch of inquest
Panchnama)
5 26 Ashok Bahnushankar Thakar ( Panch of seizure
panchanama of ceiling fan)
6 29 Narendra Mansukhdas Agravat (Panch of
seizure panchanam of ceiling fan)
7 30 Manish Damodar Oza (Panch of scene of
offence panchnama)
31 Scene of offence panchanama
8 32 Rajesh Govindbhai Bhamaniya (Panch of scene
of offence panchnama)
9 42 Guvantrai Purshottamdas Acharya
(Complainant/Father of the deceased)

Mark Letter dated 02/12/1997 written by the
42/1 deceased
43 Original FIR/Statement of complainant
49 Marriage invitation card of the deceased and
accused No.1
50 Xerox copy of pages of the notebook of the
deceased.

            61     Letter dated 29/11/1997 written by the
deceased.
10 62 Hansaben Gunvantrai (Mother of the
deceased)
11 63 Swatiben Kishankurma (Sister-in-law of the
deceased)
12 64 Dr. Vipul Nanalal Modha (Doctor who
performed first PM)
65 P.M. Note (Porbandar)
69 Final cause of death
13 72 Dr.Ganesh Pyarelal Govekar (Doctor who
performed second PM)
73 P.M. Note (Bhavnagar)
14 80 Jyotiben Rajendrabhai Nimavat (Elder sister of
the deceased)

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15 81 Ketanbhai Vijaybhai Gohel (Known to accused
No.1 Harshadbhai)
16 82 Jitendrabhai Biharibhai Ramavat (Madhav
Travels)
17 84 Jaydevsinh Khengarsinh Chudasama
(Neighbour of complainant)
18 85 Dr. Sanjay Joshi
19 86 Kalyani Maheshbhai Gandhi (Neighbour of
complainant)
20 87 Kaushikabhai Banesinh Makwana (Mobile
Scientific Officer)
93 Registrar of Accident Death
23 104 Prafulbhai Mathudaradas Athara (Deputy
Mamlatdar)
24 114 Jashwantkumar Ramjibhai Mothaliya (Dy.S.P.
Porbandar)
25 118 Dr.Dilipbhai Amrutlal Vyas (Medical Officer,
Porbandar)
26 120 Dhanjibhai Thakarsibhai Vadliya (Police
Inspector, Kamlabaug Police Station,
Porbandar)
27 124 Dr.Bharatkumar Kalidas Ramavat (Relative of
complainant)
143 Queries asked of FSL officer
155 FSL Report
168 Transfer orders of deceased
DW -1 178 Rashmiben Pankajbhai Chaudhari (Tenant of
present appellant)
2 180 Dr.Ranjitbhai Prabhubhai Lakhani
(Gynecologist, Porbandar)
3 182 Dr.Yogeshbhai Mansukhbhai Soni (Accused
No.1 Hardhad working in his hospital)
4 183 Maldebhai Hathiyabhai Odedara (Dairywala)

19. The second major issue needs to be considered and answered

is with reference to allegations regarding ill treatment and

abatement to commit suicide. So far as abatement to suicide is

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concerned, a factual details categorically confirms as discussed

herein above that, after the marriage, victim has stayed with the

appellants initially for 8 months and thereafter she had been to the

place of her choice either at the place of her parents or at the place

where she was serving as a teacher, independently and separate

from her husband and in laws i.e. present appellants. Therefore,

there was no case of ill treatment for long period of 6 years during

married life of 7 years and two months. However, there is

allegation that after the gap of 5 years there was an attempted to

settle the dispute between the parties and during such exercise

when victim had been to the house of the appellant on two

occasions, again there was ill treatment and therefore, she has not

stayed together with appellants. Thereafter, incident has taken

place almost after a year. For such one year again victim had

stayed in Bhavnagar district where she was serving as a teacher

and, therefore, at least for last one year from the date of incident

there was no cohabitation. Practically, during the marriage life of 7

years 2 months, the cohabitation was only on 4 to 5 occasions

amongst which approximately for 8 months immediately after the

marriage then after the gap of 5 years on few occasions for couple

of days only and after such cohabitation for couple of days again

there was a gap of one year when she has committed suicide, when

she joined the house of in laws from Junagadh to Porbandar. It is

undisputed fact that just before the incident, the victim had been to

Junagadh from her residence of Bhavnagar at the residence of her

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sister, from where she had been to Porbandar. Therefore, in

absence of any specific evidence, because of statement of few

witnesses regarding ill treatment, there is no evidence to confirm

that there was continuous ill treatment which ultimately leads the

victim to commit suicide. To that extent charges under Section

498A would not survive. Otherwise also when the trial Court has

acquitted accused Nos. 2, 3 and 5 from such charges, there is

reason to believe that there is no evidence regarding charges

under Section 498A at least against respondent Nos. 2, 3 and 5.

20. So far as accused Nos. 1 and 4 are concerned who are

convicted under Section 498A, the provisions of Section 498A

needs to be recollected here. The provisions of Section 498A

defines the word "cruel"for the charges under Section 498A of the

Indian Penal Code;

"498A. Husband or relative of husband of a woman subjecting
her to cruelty
Whoever, being the husband or the relative of the husband of
a woman, subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation.-For the purposes of this section, "cruelty"
means-

(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or

(b) harassment of the woman where such harassment is with
a view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to
meet such demand.]"

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20.1 Therefore, bare reading of such definition of cruelty makes it

clear that either it should be likely to drive the woman to commit

suicide or to cause grave damage to life or health of the woman or

harassment with a view to coerce her or any person related to her

to meet any unlawful demand for any property or valuable security

or is on account of failure by her or any person related to her to

meet such demand.

21. The scrutiny of evidence which is referred by both the sides

makes it clear that any of such evidence does not speak about

harassment, so as to coerce the victim or anybody on her behalf to

meet any unlawful demand for any property or valuable security

which may be called as a dowry. Therefore, when there is no

demand of dowry and when there is no case to that effect by the

complainant, the only cause remain is whether there is any act

which drives the woman to commit suicide i.e. abatement of suicide

which is punishable under Section 306 of the Indian Penal Code,

which provides that if any person commits suicide, whoever abets

the commission of such suicide, shall be punished with

imprisonment of either description for a term which may extend to

ten years, and shall also be liable to fine.

21.1 Though there may not be any direct evidence to abatement of

suicide which would drive any person to commit a suicide,

Unfortunately there is serious allegations against respondent No.4

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being father in law of the victim by the complainant and other

witnesses that victim has conveyed her about attitude and activity

of respondent No.4 by saying that he has caught her hand and

wanted to take disadvantage of the position. However, available

material on record does not confirm that there is sufficient and

cogent evidence to believe such story. To prove such allegation,

complainant and prosecuting agency are relying upon deposition of

the witnesses and some documentary evidence which is

summerised and discussed as under;

(1)PW 9 at exhibit 42 - complainant being father of the victim

has stated on oath that he has been told by his wife Hansaben

that victim has told her that her father in law has spoken her

name and caught her hands and put improper demand.

However, it is also stated by him that thereafter, she had

been to her in laws on 2 to 3 occasions where she stayed for

2 to 3 days and during those period though there is

allegations regarding ill treatment, there is no allegation

regarding any improper activity by accused No.4. In support

of such version, witness has produced on record copy of

diary, said to be written by the victim, which is taken on

record as exhibit 48.

(a) However, in his cross - examination, he has to admit

that though he has stated in his examination in chief

that appellants were not ready to keep the victim and

they want to get divorce from the victim but he has not

Page 23 of 38
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disclosed such story in the complaint, but he has stated

in his complaint, which is signed by him and proved on

record at exhibit 43; that victim wants to stay

separately from her in laws with her husband. Though

witness has stated that because of such reason i.e.

because victim wants to stay separately with her

husband there was harassment to her and therefore all

the accused have killed her, the contradiction in

complaint and deposition certainly results into benefit

in favour of the accused to extend benefit of doubt in

their favour against conviction because complainant

being father of the victim has changed his version

drastically from his complaint.

(b) witness has also admitted that whenever victim was

coming to Bhavnagar, her father in law was coming

with her to drop her at Bhavnagar. Such fact is

corroborated by letter of the victim at exhibit 61, which

would be discussed herein after, in which also victim

has stated that her father in law has taken good care of

her, which falsify the allegations against accused No.4

father in law of the victim regarding his improper

demand from the victim because if it is so, victim would

not travel with him for 300 kms from Porbandar to

Bhavnagar on different occasions. The letter at exhibit

61 by the victim confirms such position.

Page 24 of 38
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(c) The witness father of the aged daughter does not

want to admit that victim has aborted a child in April

1998 and such story was never disclosed by the

complainant, therefore appellants were right in

submitting that in fact victim was carrier oriented

woman and does not want a child and that was the only

issue between husband and wife.

(d) the witness has no option but to admit that in diary

at exhibit 48, which is produced by him, there is

categorical endorsement / writing that victim has got

her pregnancy aborted on 11.04.1998 and was taken to

the hospital on 25.03.1998 at Porbandar. It is

undisputed fact that she had been to Bhavnagar on the

next date i.e. 26.03.1998. It is also admitted by the

evidence that victim was studied till B.A. B.Ed. and

serving in village Ambra in Talaja taluka as Vidhya

Sahayak. Witness has also admitted that in diary at

exhibit 48 and 50 victim has nowhere endorsed that she

had been harassed by the accused either physically or

mentally. Victim was staying at Bhavnagar from 5 years

and attempt of compromise was started by appellant

No.1 by making a phone-call. He also admits that while

applying for postmortem report at exhibit 59, he has

disclosed that his daughter has died by accident. He

also admits that his daughter wants to stay separately

Page 25 of 38
R/CR.A/1413/2007 CAV JUDGMENT

from joint family with her husband and that appellant

No.1 has purchased a flat also. He also admits that

when victim was at Porbandar she has also at liberty

and facility of calling them on phone, which suggest

that practically there may not be much harassment at

Porbandar or at least she has never complained about

such harassment to the complainant on phone. It is

admitted position that victim has not disclosed anything

about accused No.4 directly to the witness and to that

extent so far as this witness is concerned those

allegations are hearsay. There is detail cross

examination of the witnesses to verify his credentials.

However, only material portion has been discussed

herein.

(2) Prosecution is solely relying upon exhibit 48, a diary alleged

to have been written by the victim. However, in such diary

there is very vague statement regarding attitude of accused

No.4 but there is categorical statement in such diary, which

does not have any authenticity that it is written by the victim

only, that in fact victim wants to get divorce from the

appellant No.1 and probably the dispute is with regard to the

properties. The writing regarding allegations against father

in law are in altogether different handwriting. If we read

allegations, wherein there is no name of appellant No.4 but it

seems that when victim has asked for divorce appellant No.1

Page 26 of 38
R/CR.A/1413/2007 CAV JUDGMENT

has categorically stated that he would not get separated from

the family and so called allegations is only in the name of old

man that old man has taken her name without reference to

accused No.4. Such conversation is with reference to

Bhavesh and Chetnaben i.e. sister and brother in law of the

victim and not with reference to appellant No.4 and

complainant and prosecution are identifying Bharat as old

man in such writing. However, minute writing makes it clear

that probably this writing is not by the victim at all, since

there is reference of friend agreement after taking divorce

and there is also reference of getting married again after

divorce by performing civil marriage and transferring the

property and such writing is with reference to mother.

Though it is not clarified in such evidence that reference is

for whose mother, we have to believe that it is mother of the

concerned husband, when there is no such factual details

between victim and the appellant No.1 i.e. wife and husband

in the present case. The writing of such diary gives an

impression that it is probably by some other woman for her

dispute or with reference to some other issues and not with

reference to any dispute between the victim and appellant

No.1. Few more letters by the victim to the appellant no.1

are produced on record which nowhere discloses anything

which is alleged by the complainant against appellant.

(3) However, letter dated 29.11.1997 at exhibit 61 written by

Page 27 of 38
R/CR.A/1413/2007 CAV JUDGMENT

the victim to her in laws is material, writing of such letter on

the contrary confirms that victim was in good relation with

the in laws including her parents in law and other family

members. whereas, last line in this letter is referring

appellant No.4 disclosing by the victim that appellant No.4

has taken good care of her when came to drop her from

Porbandar to Bhavnagar and she also conveyed her mother in

law that her father in law has reached to Ahmedabad safely.

(4) However, PW No.10 mother of the victim Hansaben at

exhibit 2, PW No.14 Jyotiben Rajendrabhai, sister of the

victim at exhibit 8 and PW No.19 Kalyaniben M. Gandhi,

neighbour of the complainant at exhibit 86 so also PW No.11

Swatiben Kishankumar, Bhabhi of the victim at exhibit 63

categorically deposed on oath that victim has conveyed her

about illegal demand by her father in law i.e. appellant No.4.

They also admits about abortion by the victim and her

services in Bhavnagar district for more than 5 years.

Hansaben also admits that victim was frequently visiting

their house at Bhavnagar and every time appellant No.4 i.e.

father in law of the victim used to come to Bhavnagar from

Porbandar and ever time he used to stay for day or two. This

suggest that probably the story of allegations against

appellant No.4 is afterthought and there is no substance in

such allegation.

(5)PW No.63 Bhabhi of the victim admits that there is material

Page 28 of 38
R/CR.A/1413/2007 CAV JUDGMENT

contradiction in her statement before the police and her

deposition in as much as it is disclosed by her in her

statement before the police that in fact victim wants to stay

separately from her in laws only with her husband.

(6)PW No.14 sister of the victim has to admit that during initial

stay for 8 months at her matrimonial house, victim has got

pregnancy but immediately on returning to Bhavnagar she

has got her pregnancy aborted.

(7)PW No.19 neighbor of the complainant has though referred

the victim for her allegation against appellant No.4,

considering the overall circumstances and evidence, such

evidence alone cannot be sufficient to prove the allegation

which can certainly be termed as a heresay evidence.

22. However, when there is some evidence on record regarding

illegal demand by appellant No.4 and probably non support by

appellant No.1 in such situation when the trial court has

considered such circumstantial evidence against appellant Nos. 1

and 4, even if the conviction of appellant Nos. 1 and 4 is to be

confirmed under Section 306 only, in given circumstances their

sentence can certainly be looked into when there is a possibility of

taking different view then view taken by the Sessions Court.

23. Deposition of PW No.27 at exhibit 124 is of Bharatkumar K.

Ramavat who is relative of the complainant. He produced on record

Page 29 of 38
R/CR.A/1413/2007 CAV JUDGMENT

two letters addressed to him by appellant No.4 i.e. father in law of

the victim, whose name is also coincidentally Bharatbhai. This

witness has disclosed altogether a different story that appellants

are asking for divorce but victim has denied it. However, during

cross examination he has admitted that police has never recorded

his statement. Such deposition on the contrary disturb the

prosecution story but in any case it does not prove anything against

appellants.

24. Whereas in their further statement in writing at exhibit 185

appellants have agreed to allow the victim and appellant No.1 to

stay separately but victim was abandoned to start such house

without any delay and when considering the financial arrangement,

she was requested to wait for couple of days and instead of waiting

for couple of days, she has committed suicide which has resulted

into such situation.

25. In view of above facts and circumstances, I do not see any

reason to confirm the sentence part by impugned judgment even

though conviction may be confirmed only with a view to avoid to

take different view then the view taken by the learned Sessions

Judge, who is having benefit of scrutinizing the oral as well as

documentary evidence which is recorded in its presence only by

interpreting the same evidence differently when it is so possible.

Page 30 of 38
R/CR.A/1413/2007 CAV JUDGMENT

26. I have also considered written arguments by both the sides

wherein certain facts are disclosed with reference to details of

particular evidence. However, some evidence has been discussed

herein above and therefore there is not reason to either reproduced

the written submissions or to disclose such written submissions in

verbatim.

27. Then remains only consideration regarding citations in form

of previous verdicts, referred and relied upon by both the sides.

25.1 The complainant and prosecution are relying upon following

decisions;

(1)The respondent - complainant and prosecution are relying

upon the judgment and order dated 06.08.2008 in bail

application preferred by the present appellants which is

reported in 2008 (3) GLR 2345 between present appellant

No.1 vs. State of Gujarat and marked several portion of such

judgment, wherein at the relevant time while rejecting the

bail application, the division bench has made certain

observations and come to the conclusion that serious crime is

alleged against accused and when sentence is of 10 years

imprisonment, it does not entitle the accused to release on

bail by suspending the sentence. However, it cannot be

ignored that the division bench has no option but to observe

that "at this juncture we are not permitted to appreciate the

evidence fully, but to see what is the prima facie case, and as

Page 31 of 38
R/CR.A/1413/2007 CAV JUDGMENT

stated above, when there is a prima facie case in favour of

the prosecution only because the accused is sentenced to 10

years imprisonment, benefit of Section 389 to suspend the

sentence and to enlarge the accused on bail cannot be

extended to accused No.1. Therefore, such judgment cannot

be relied upon at this stage for two simple reasons i.e. (i) it is

an order of bail without scrutinizing and appreciating the

evidence fully as admitted in such judgment and when entire

evidence is referred read out and scrutinized by this Court

and (ii) such order has been practically quashed by an order

dated 27.04.2009 by the Honourable Supreme Court when it

was challenged in Criminal Appeal No. 853 of 2009 whereby

the Honourable Supreme Court has released the accused

No.1 on bail considering the peculiar facts of the case so also

fact that appellant No.1 was in custody for more than 5 years.

(2)Dilavarkhan Hamidkhan Pathan vs. State of Gujarat

reported in 2006 (4) Crimes 449. Though conviction of in

laws was confirmed in such case, the factual details

confirmed that it was altogether a different story when there

is specific evidence that even deceased herself has made

specific statement to her father on the date of incident itself

that she went to particular house where accused were

residing and accused was found absconded when police

reached at the place of incident, considering the

circumstantial evidence, the Court has came to the

Page 32 of 38
R/CR.A/1413/2007 CAV JUDGMENT

conclusion that accused has committed a murder of his wife.

However, in absence of any evidence only because of

confirming in such conviction it would not be appropriate to

convict all the accused under Section 302 of the Indian Penal

Code.

(3)Trimukh Maroti Kirkan vs. State of Maharashtra

reported in 2006 (4) Crimes 212, wherein it was a case of

dowry demand and that it is also a case of circumstantial

evidence for charging and convicting anybody under Section

302 of the Indian Penal Code. On the contrary when

considering circumstantial evidence, the Honourable

Supreme Court has dismissed the appeal against acquittal, it

cannot be said that in absence of proper evidence, in all such

cases, conviction must be under Section 302 of the Indian

Penal Code.

(4) Md. Yakub Ali vs. State of Tripura reported in CrLJ

3315, wherein the High Court has confirmed the conviction

based upon the specific evidence on record that although the

room was closed from inside, the house which is a bamboo

hut, had a opening on the wall by which a person can easily

come and go out and when there was possibility and when

there is evidence that, appellant after strangulating the

deceased wife, hanged her to show that it is the case of

suicide and escaped by opening the wall and, therefore,

though door was closed from inside, because of possibility of

Page 33 of 38
R/CR.A/1413/2007 CAV JUDGMENT

entering into the room without opening the door, the Court

has confirmed the conviction. However, in absence of any

such evidence this judgment would not help the prosecution.

28. As against that appellants are relying upon following

citations;

(1)Kantilal Martaji Pandor vs. State of Gujarat Anr.

reported in (2013) 8 SCC 781, wherein the Honourable

Supreme Court has considered that whether the statement

attributed to the deceased can be used as an evidence

including contents of letters. The Honourable Supreme Court

has considered that when no other witness has spoken about

the complainant by the deceased and cruelty to her, such

letter would be relevant under Section 32(1) of the Evidence

Act and thereby, such provisions is not relevant under

Section 498A of the Indian Penal Code. Thereby, it is

reiterated that in order to make statement admissible under

law, stated has to cause of her death or as to any of the

circumstances of the transactions which resulted in her

death. Thereby, even if any evidence is admissible under

Section 32(1) of the Evidence Act, it cannot be admitted to

prove offence under Section 498! of the Indian Penal Code.

The above position is based upon the case of Indarpal Vs.

State of Madhya Pradesh reported in 2001 (10) SCC 736

and, therefore, does not discussed in detail though relied

Page 34 of 38
R/CR.A/1413/2007 CAV JUDGMENT

upon.

(2)M. Gananath Pattnaik vs. State of Orissa reported in

2002 (2) SCC 619, Wherein the Honourable Supreme Court

has held that statement by sister of deceased regarding

cruelty is not admissible as an evidence under Section 498A

and has to be termed only as a hearsay evidence and such

statement cannot be relied upon for final guilt of the accused.

Thereby appeal was allowed acquitting the appellant accused

before it for the offence under Section 498A of the Indian

Penal Code.

(3) Subhashbhai Chandubhai Patel vs. State of Gujarat

reported in 2006(3) GLH 724, Wherein the division bench

of this Court has relied upon Ganpat (supra) and Inderpal

(supra) while allowing the appeal of the convict and

dismissing the suo motu revision wherein notice was issued

for enhancement of sentence, observing that statement taekn

on record under Section 32 of the Evidence Act was not

admissible in evidence for offence under Section 498A and

has to be termed as being only a hearsay.

(4)Indrasing M. Raol vs. State of Gujarat reported in 1999

(3) GLR 2536, Wherein this High Court has considered the

definition of word "harassment" with reference to Section

498A and considering the available record allowed the appeal

by acquitting the appellant accused from the offence under

Section 498A of the IPC.

Page 35 of 38
R/CR.A/1413/2007 CAV JUDGMENT

(5)State of Gujarat vs. Bharatbhai Balubhai Lad Ors.

reported in 2006 (1) GLH 718, Wherein the division bench

of this Court has held that mere allegation of harassment or

cruelty without any corroboration showing that soon before

the incident there was some harassment or torture to the

deceased at the hands of the accused which was abated to

commit suicide are not sufficient to constitute the offence

under Section 306 of the Indian Penal Code. It is further held

that allegations which are general in nature with regard to

mental and physical cruelty to the deceased at the hands of

the accused is not sufficient to prove the offence under

Section 498A and thereby, relying upon Ganpat (supra) and

Inderpal (supra) confirm the judgment of acquittal by the

Sessions Court.

(6) Sanju @ Sanjay Singh Sengar vs. State of M.P.

Reported in (2002) 5 SCC 371, wherein the Honourable

Supreme Court has held that suicide cannot be considered

proximate to the quarrel even if something is disclosed in

suicide note and discarded the suicide note considering the

other circumstance while considering abatement of suicide

stating that presence of mens rea is the necessary

concomitant for instigation. Thereby conviction by both the

courts below has been converted into acquittal by the

Honourable Supreme Court even when there was suicide

note, because the Honourable Supreme Court has held that

Page 36 of 38
R/CR.A/1413/2007 CAV JUDGMENT

suicide was not proximate because of quarrel between the

parties. Whereas in the present case there is no question of

quarrel or other dispute between the parties.

29. I have also gone through the impugned judgment which runs

into 300 pages. Therefore, I have avoided the factual details as well

as reproduction of all the evidence since it is very well disclosed in

such lengthy judgment. However, so far as appreciation of evidence

is concerned I do not agree fully with the Sessions Court in

convicting and sentencing the appellant Nos. 1 and 4 as per the

impugned judgment. Therefore, in given facts and circumstance as

discussed herein above, though I do not want to quash or set aside

the conviction part of appellant No.1 and 4, there is no reason to

confirm the sentence as awarded by the impugned judgment.

30. In view of above facts and circumstances the appeal needs to

be partly allowed whereby though conviction of appellant Nos. 1

and 4 is confirmed, their sentence is reduced to the period for

which they have already undergone judicial custody pending trial

and appeal and thereby they are not to undergo any further

imprisonment herein after. I have reason to reduce the sentence

considering the discussion herein above which specifically makes it

clear that there is possibility of taking different view from the same

set of evidence when we appreciate it afresh and in totality with

each other as disclosed herein above. Therefore, when different

Page 37 of 38
R/CR.A/1413/2007 CAV JUDGMENT

opinion is possible from same set of offense, though benefit of

doubt can be extended to the appellant, it would be appropriate to

confirm the conviction part only but when different opinion is

possible, sentence imposed by the Sessions Court needs to be

quashed and set aside by modifying the same as aforesaid.

31. In view of above facts and circumstances, appeals are partly

allowed. Bail bond shall stand cancelled. Record and Proceedings

be sent back to the trial Court forthwith.

(S.G. SHAH, J)
DRASHTI K. SHUKLA

Page 38 of 38

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