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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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)Page 18 of 38
R/CR.A/1413/2007 CAV JUDGMENT15 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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R/CR.A/1413/2007 CAV JUDGMENTconcerned, 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
Page 20 of 38
R/CR.A/1413/2007 CAV JUDGMENTsister, 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.]"Page 21 of 38
R/CR.A/1413/2007 CAV JUDGMENT20.1 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
Page 22 of 38
R/CR.A/1413/2007 CAV JUDGMENTbeing 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
R/CR.A/1413/2007 CAV JUDGMENTdisclosed 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
R/CR.A/1413/2007 CAV JUDGMENT(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 JUDGMENTfrom 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 JUDGMENThas 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 JUDGMENTthe 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 JUDGMENTcontradiction 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 JUDGMENTtwo 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 JUDGMENT26. 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 JUDGMENTstated 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 JUDGMENTconclusion 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 JUDGMENTentering 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 JUDGMENTupon.
(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 JUDGMENTsuicide 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 JUDGMENTopinion 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. SHUKLAPage 38 of 38
