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Kantilal S/O Laxmanbhai Varubhai … vs State Of Gujarat on 30 November, 2018

R/CR.A/1171/2014 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1171 of 2014
With
R/CRIMINAL APPEAL NO. 1256 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR.JUSTICE A. P. THAKER Sd/-

1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No

as to the interpretation of the Constitution of India or any
order made thereunder ?

KANTILAL S/O LAXMANBHAI VARUBHAI PARMAR
Versus
STATE OF GUJARAT

Appearance:

MR SAMIR AFZAL KHAN(3733) for the PETITIONER(s) No. 1,2,3,4
MS JIRGA JHAVERI, APP (2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 30/11/2018
CAV JUDGMENT

1. Both these appeals have been preferred by the
appellants under Section 374 of the Code of Criminal
Procedure, 1973 against the judgment and order dated
28.08.2014 passed by learned Additional Sessions Judge, City
Sessions Court No.3, Ahmedabad, in Sessions Case No.91 of
2014.

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R/CR.A/1171/2014 CAV JUDGMENT

2. By the impugned judgment, accused no.2-Suhag, is held
guilty for the offences punishable under Sections 498A and
306 of the Indian Penal Code and Sections 3 and 7 of the
Dowry Prohibition Act. For the offence under Section 306 of
IPC, accused no.2 was sentenced to suffer five years rigorous
imprisonment with fine of Rs.2,000/- and, in default of payment
of fine, further rigorous imprisonment for one year was
imposed. For the offence under Sections 3 and 7 of the Dowry
Prohibition Act, accused no.2 was sentenced to suffer five
years rigorous imprisonment with fine of Rs.15,000/- and, in
default of payment of fine, further rigorous imprisonment for
one year was imposed. For the offence under Section 498A of
IPC, accused no.2 was sentenced to suffer three years rigorous
imprisonment with fine of Rs.1,000/- and, in default of payment
of fine, further rigorous imprisonment for six months was
imposed.

2.1 Accused no.1 and 3 are held guilty for the offence
punishable under Sections 498A and 114 of IPC and sentenced
to suffer three years rigorous imprisonment with fine of
Rs.1,000/- and, in default of payment of fine, further rigorous
imprisonment for six months was imposed. Accused no.1 and 3
are also held guilty for the offence punishable under Section
323 of IPC and sentenced to suffer six months rigorous
imprisonment with fine of Rs.100/- and, in default of payment
of fine, further rigorous imprisonment for one month was
imposed. Accused nos.4 and 5 are held guilty for the offence
punishable under Sections 498-A of IPC and sentenced to
suffer one years rigorous imprisonment with fine of Rs.200/-
and, in default of payment of fine, further rigorous
imprisonment for one month was imposed.

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2.2 All the sentences were ordered to run concurrently.

3. At the outset, it is submitted by learned advocate
Mr.Samir Afzal Khan appearing for the appellant of Criminal
Appeal No.1256 of 2014 that this appeal filed by accused no.2,
Suhag Kantibhai Parmar-husband of the deceased has become
infructuous in view of the fact that the accused has served out
the sentence imposed by the impugned judgment. In view of
the statement, as above, Criminal Appeal No.1256 of 2014
filed by accused no.2, Suhag Kantibhai Parmar-husband of the
deceased is disposed of as having become infrucutous.

4. As per the case of the complainant, the complainant is a
resident of Ahmedabad and has retired as Telecom Mechanic,
BSNL, in the year 2011. Marriage of the youngest daughter of
the complainant, Maheshwari, was performed with accused
no.2 Suhag before couple of years. It is further the case of the
complainant that there is no practice of giving dowry in their
community but generally dowry is given at the time of
“srimant”. Daughter of the complainant got pregnant,
however, she found that her husband is having illicit relation
with a lady and her husband, accused no.2, also beating the
daughter of the complainant. This fact was informed to the
complainant by his daughter. Due to delay in preparing tiffin
for her brother-in-law, Pintoo, daughter of the complainant was
mentally harassed by mother-in-law and sister-in-law. Both of
them were also instigating accused no.2, husband of the
victim. Father-in-law of daughter of the complainant was also
beating her. Brother-in-law of daughter of the complainant also
caused harassment to her. Accused no.2 raised a demand of
Rs.5 Lacs, one car and ornaments to be given at the time of

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birth of child. It is also alleged that the accused were causing
mental and physical cruelty to the victim. On 2.10.2013 at
about 4.15 p.m., one Munnabhai informed the complainant to
come to his house. Hence, the complainant went there with his
sons and family members. Son of the complainant, Jagdish,
inquired about the victim, Maheshwari, upon which they were
informed that she is in hospital, therefore, they rushed to the
V.S. Hospital. There, they had seen the dead body of the
victim-daughter of the complainant. Upon inquiry, it is found
that deceased-Maheshwari committed suicide by jumping from
Jamalpur Bridge into the river Sabarmati. With such
allegations, complaint was given against the accused which
was registered as I-C.R.No.236 of 2013 before Danilimda Police
Station. The police registered the case for offences punishable
under Sections 498-A, 306, 323 and 114 of IPC and Sections 3
and 7 of the Dowry Prohibition Act.

4.1 During the course of investigation, the accused were
arrested and as sufficient evidence was found against the
accused, charge sheet was filed in the Court of learned
Metropolitan Magistrate, Court No.14, Ahmedabad. As the
offence was triable by Court of Sessions, the learned
Magistrate committed the case to the Court of Sessions under
Section 209 of the Criminal Procedure Code. The learned
Sessions Judge framed charge against the accused. The charge
was read over and explained to the accused. The accused
denied all the charges and pleaded to be tried. Hence, the
prosecution was asked to prove the guilt against the accused.

4.2 During trial to prove the guilt against the accused,
prosecution examined following witnesses:-

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R/CR.A/1171/2014 CAV JUDGMENT

Sr. Name of the witness Exh.
No.
1 Govindbhai J. Parmar, complainant (father of 18
the deceased).
2 Jagdishbhai G. Parmar, witness (brother of the 21
deceased).
3 Dr.Kalpeshbhai S. Kotariya, Medical Officer. 23
4 Taraben G. Parmar-witness (mother of the 26
deceased).
5 Ramilaben B. Solanki, witness (sister of the 27
deceased).
6 Girirajsinh P. Chauhan, Investigation officer. 28
7 Jaydeepsinh D. Jadeja, Dy.S.P. 34

4.3 The prosecution has also led following documentary
evidence:-

Sr. Document Exh.
No.
1 Complaint. 19
2 Panchnama of physical condition. 11
3 Inquest panchnama. 12
4 Panchnama of sample during post-mortem. 13
5 Postmortem Report. 24
6 Muddamal forwarding letter. 29
7 Muddamal receipt by FSL officer. 30
8 FSL forwarding letter and opinion. 31

4.4 Defence side has also examined one Mr.Kokanbhai
Manubhai Banerjee, husband of Ramaben, at Exh.37 to
dislodge the allegations that the accused Suhag had illicit
relation with Ramaben.

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R/CR.A/1171/2014 CAV JUDGMENT

4.5 After considering the evidence on record, learned trial
Court has convicted the accused by the impugned judgment,
as aforesaid. Being aggrieved by the impugned judgment, the
appellants-accused have preferred present appeals.

5. According to these four accused, the learned Sessions
Judge ought to have appreciated that there is no direct
evidence adduced on behalf of the prosecution to prove the
guilt of the present appellants. According to the appellants, in
absence of any independent witness and even when the
interested witnesses have not made any direct allegations
against the present appellants, case under section 498A of
Indian Penal Code could not have been believed to be proved
by the learned Sessions Judge. It is also contended that the
learned trial Court failed to appreciate the definition of ‘cruelty’
as defined in Section 113A of the Indian Evidence Act, and has
wrongly interpreted it qua the present appellants. According
to the accused-appellant of Criminal Appeal No.1171 of 2014,
the appellant no.1 is father-in-law, appellant no.2 is brother-in-
law, appellant no.3 is sister-in-law, and appellant no.4 is
mother-in-law of the deceased. According to the accused, even
bare reading of the allegations made in the complaint and the
evidence produced by the prosecution, there is no iota of
evidence connecting to the present accused herein to have
committed the offence defined under section 498A of the
Indian Penal Code. It is also contended that the appellants are
not convicted under the provisions of the Dowry Act but only
under section 498A of the Indian Penal Code which is also not
proved by the prosecution beyond reasonable doubt.

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R/CR.A/1171/2014 CAV JUDGMENT

6. I have heard learned advocate Mr.Samir Afzal Khan for
the appellants and learned APP Ms.Jirga Jhaveri at length and
also perused the entire evidence on record.

7. Learned advocate Mr.Khan for the appellants has
submitted that the present accused-appellants of Criminal
Appeal No.1171 of 2014 ought not to have been convicted for
offences punishable under section 498-A read with Section 114
as well as for Section 323 of the Indian Penal Code. It is also
contended that though the accused are convicted under
Section 498-A read with section 114 of Indian Penal Code, the
sentences awarded to each accused is different one. While
referring to the deposition of Govindbhai J. Parmar, Exh.18,
Jagdishbhai G. Parmar, Exh.21, Taraben G. Parmar, Exh.26 and
Ramilaben B. Solanki, Exh.27, as well as police witness, it has
been contended by learned advocate Mr.Khan that from their
evidence, there is no proof as to cruelty or harassment being
meted out by these accused to the deceased. According to
him, regarding mental and physical harassment, there are
different versions of father, mother, brother and sister, as
some witnesses say that it was three months, some say it was
six months whereas some say one year. It is also contended
that the allegation regarding the illicit relation with Ramaben is
concerned, Ramaben has not been examined by the
prosecution. While referring to the entire evidence on record,
it has been submitted by Mr.Khan that there is no specific
evidence against the sister-in-law and brother-in-law.
According to him, as far as the slapping to the deceased by
Kantibhai is concerned, it is based on hearsay evidence and
there is no evidence of dowry demand by in-laws. According to
him, to give instruction for preparing food cannot be treated as

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R/CR.A/1171/2014 CAV JUDGMENT

a cruelty. While referring to the impugned judgment, it is also
contended by learned advocate, Mr.Khan that the reasoning
given by the learned trial Judge is perverse and there is no
cogent evidence against the brother-in-law, sister-in-law
mother-in-law and whatever evidence regarding slapping to
the deceased by brother-in-law is concerned, is also not
trustworthy. He has also relied on the judgment in case of
Heera Lal v. State of Rajasthan reported in 2018 (11) SCC
323 and in case of Jadav @ Jatin Bhagvanbhai Prajapati v.
State of Gujarat reported in 2017 All SCR 530. In the
alternate, he has submitted that if the Court comes to the
conclusion that there was slapping by the father-in-law to the
deceased, then the offence could be stated to be under
Section 323 of Indian Penal Code and, therefore, he may be
given benefit of probation considering the age of 75 years, and
he has also undergone bypass surgery. He has also contended
that due to these case, sister-in-law Bhavana is still unmarried
and mother-in-law is also suffering from blood pressure and
various ailments, whereas, brother-in-law Pintoo is of young
age and considering his future also some leniency may be
shown.

8. Per contra, learned APP Ms.Jhaveri has conceded that
there is no evidence against the brother-in-law and sister-in-
law, however, the allegations against the father-in-law and
mother-in-law are proved and allegations under Section 498-A
and are also proved against Kantibhai which has been
corroborated by all witnesses. She has also contended that, at
the time of commission of suicide, deceased was having child
in her womb. Learned APP Ms.Jhaveri has contended that the
conviction should be confirmed and it is the discretionary

Page 8 of 16
R/CR.A/1171/2014 CAV JUDGMENT

power of the Court regarding the sentences and, therefore, she
left it to the Court.

9. From perusal of the facts and evidence on record, it
appears that there is no dispute regarding relationship of the
deceased with the accused persons and there is also no
dispute that the deceased committed suicide by jumping in the
river Sabarmati. The allegations against the present accused,
who are father-in-law, mother-in-law, brother-in-law and sister-
in-law of the deceased are regarding aiding the husband of the
deceased for ill-treating the deceased and instigating the
deceased to commit suicide. One of the allegations against the
father-in-law and brother-in-law is regarding beating the
deceased on several occasions.

10. While considering the aforesaid admitted fact and
allegations, if we peruse the evidence on record, it transpires
that the complainant Govindbhai Jethabhai Parmar, in his
evidence at Exh.18, has tried to prove the offence against all
these four accused stating that the facts of beating his
daughter and giving her ill-treatment by her husband and the
present accused abetting in such act is known from his wife.
He has specifically stated in his chief examination at
paragraph-2 that for preparing the tiffin of brother-in-law,
Pintoo, mother-in-law, Manoramaben was taunting her and by
her instigation, sister-in-law, Bhavnaben was harassing the
deceased and her father-in-law, Kantibhai, has beaten the
deceased for once or twice. He has admitted in his cross-
examination that as per the constitution of their community, if
there is harassment to his daughter, he was required to give
complaint before the community, however, in the present

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R/CR.A/1171/2014 CAV JUDGMENT

case, except the present complaint, the complainant has not
given complaint anywhere. The evidence of this witness is in
the nature of hear-say evidence.

11. On perusal of evidence of PW-2, Jagdishbhai Govindbhai
Parmar at Exh.21, who is brother of the deceased has stated
that the deceased was residing in joint family and from his
mother, he came to know the facts that the husband of the
deceased, viz. Suhag had illicit relation with one Ramaben and,
due to this, Suhag was not keeping good relation with the
deceased. He has also stated that the deceased told her that
her in-laws were instigating her husband Suhag. He has further
stated that Suhag used to beat the deceased. Evidence of this
witness is also based on the version given to him by his
mother, therefore, he is also a hear-say witness.

12. Taraben Govindbhai Parmar, PW-4, Exh.26, mother of the
deceased, has categorically stated in her evidence that her
daughter Maheshwari was residing in joint family with her
husband Suhag. According to this witness, after marriage when
Maheshwari came to her parental house, she was telling her
that she is pregnant and for preparing tiffin of her brother-in-
law, her sister-in-law and mother-in-law were taunting her and
her husband Suhag was beating her. According to this witness,
she persuaded Maheshwari to go back to her matrimonial
home. It is the say of this witness that thereafter when
Maheshwari came to her house, she told that her husband
Suhag has illicit relation with one Bengali lady, Ramaben, and
because of that he was beating Maheshwari and her in-laws
were also torturing her mentally and physically. She has also
stated that because of all these reasons, Maheshwari has

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committed suicide by jumping in a river. From her cross-
examination, it is found that when Maheshwari died she was
having foetus of four to five months in her womb. She has
denied that the accused have never caused physical and
mental cruelty to the deceased and that her husband Suhag
had no illicit relation with a Bengali lady.

13. Ramilaben Bharatkumar Solanki, sister of the deceased,
PW-5, Exh.27, has categorically stated that, as and when both
the sisters come at parental home, the deceased was telling
her that her in-laws were causing cruelty towards her and they
were instigating her husband and due to that her husband was
beating her. She has also stated that the deceased has
informed that her husband-Suhag has illicit relation with one
Bengali lady and, therefore, he was beating the deceased. She
has also stated that for preparing tiffin of her brother-in-law,
the accused were causing cruelty to her. During her cross-
examination, this witness has stated that Maheshwari told her
that the Bengali lady Rama was used to come to their house
and she has also admitted that Rama was considering the
Suhag as brother.

14. Now so far as the decision reported in case of Heera Lal
(supra) is concerned, it appears that in paragraph no.6, it has
been observed by the Hon’ble Apex Court as under:-

“we are of the opinion that Section 113A of the
Indian Evidence Act requires three ingredients to
be satisfied before it can be applied i.e. (i) that a
woman has committed suicide, (ii) such suicide has
been committed within a period of seven years
from the date of her marriage and (iii) the husband
or his relatives who are charged had subjected her
to cruelty.”

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R/CR.A/1171/2014 CAV JUDGMENT

15. It is also found from the aforesaid decision that, in that
case, trial Court held that the offence under section 498A was
not made out but convicted the two appellants under section
306 and sentenced them to imprisonment for three years
which was confirmed by the High Court. While considering
evidence on record, the Supreme Court has observed therein
that in absence of vital limb of three ingredients of Section
113A of the Evidence Act, the mere fact that there is a finding
of harassment would not lead to the conclusion that there is
abatement of suicide.

16. So far as the decision reported in case of Jadav @ Jatin
Bhagvanbhai Prajapati (supra) is concerned, it is found that
in that case, the accused were convicted for offences under
section 498A, 304B, 306 read with section 114 of Indian Penal
Code and section 3 of the Dowry Prohibition Act, 1961. That
conviction was challenged before the High Court and the High
Court has confirmed the same. After considering the evidence
on record, appeal filed by accused nos.2, 3 and 4 were
accepted and conviction and sentences imposed by the High
Court were set aside, whereas conviction and sentence
imposed by the High Court against appellant no.1 was
dismissed.

17. Now, on perusal of FIR at Exh.19, it is clear that a specific
allegation was made by the complainant-father of the
deceased that his daughter and wife informed him that during
the period of six months, Suhag had beaten his daughter
thrice. Thus, from the very beginning, it is the case of the
complainant that he has come to know regarding the fact of
cruelty being meted out to his daughter by the accused from

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R/CR.A/1171/2014 CAV JUDGMENT

his wife and the deceased herself. On perusal of the evidence
of the daughter-Ramilaben, complainant’s wife-Taraben, it
appears that they have simply stated that the accused were
causing cruelty to the deceased for late preparation of the
tiffin for the brother-in-law. The question is whether to give
advise to prepare tiffin in time for the brother-in-law can be
treated as cruelty, when there is no other allegation against
the mother-in-law, brother-in-law and sister-in-law as emerging
from the evidence of the near relatives of the deceased.
Considering the entire evidence of near relatives, it appears
that since Suhag was having illicit relation with one Bengali
lady, he used to beat the deceased and due to that she has
committed suicide by jumping in river-Sabarmati. Of course, it
also appears from the evidence on record that not only Suhag
was beating deceased but her father-in-law Kantilal has also
beaten her twice. So far as allegation to the effect that
brother-in-law was used to beat the deceased is not coming
out from the evidence on record. From the FIR itself or from
the evidence on record, there is no sufficient evidence
connecting the brother-in-law with the alleged beating by him.
There is also no evidence regarding the cruelty being meted
out by sister-in-law Bhavna to the deceased. The allegations
against the mother-in-law is only to the effect that she was
tauting for preparation of tiffin of the brother-in-law on time.

18. Therefore, on considering the entire evidence on record,
it appears that there is no cogent evidence for connecting
mother-in-law, brother-in-law and sister-in-law for the offence
punishable under Section 498-A read with Section 114 of IPC. It
appears from the reasoning given by the learned Additional
Sessions Judge that he is influenced by the fact that the

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R/CR.A/1171/2014 CAV JUDGMENT

deceased was having foetus of four to five months in her
womb at the time of committing suicide. Therefore, conviction
of this three accused for offence punishable under Section 498-
A read with Section 114 of IPC cannot be sustained and it is
required to be set aside.

19. It is admitted fact that acquittal of these three accused
from the charges of offence under Section 306 of IPC as well as
for offence under Section 3 and 7 of the Dowry Prohibition Act
has not been challenged by filing any acquittal appeal. At this
juncture, it is required to be observed that so far as accused-
Suhag is concerned, he has been convicted for all the offences
and he has served out the entire sentence, as pointed out by
learned advocate for the accused and confirmed by learned
APP.

20. So far as remaining accused, i.e. accused no.1, Kantilal
Laxmanbhai Parmar, is concerned, there is consistent evidence
on record that he has twice beaten the deceased. Being father-
in-law, he steps in the shoes of a father and he ought to have
restrained himself from beating his daughter-in-law. By beating
her twice, this accused has caused cruelty to the deceased
and, therefore, his conviction under Section 498-A as well as
under Section 323 of IPC is required to be upheld.

21. In view of above, Criminal Appeal No.1256 of 2014 is
disposed of as having become infrucutous as original accused
no.2, Suhag Kantibhai Parmar, has already served out the
sentence imposed upon him.

22. So far as Criminal Appeal No.1171 of 2014 is concerned,
the same is partly allowed. The impugned judgment and order

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R/CR.A/1171/2014 CAV JUDGMENT

dated 28.08.2014 passed by learned Additional Sessions Judge,
City Sessions Court No.3, Ahmedabad, in Sessions Case No.91
of 2014, convicting and sentencing accused no.3, Pratik @
Pintoo Kantibhai Parmar, brother-in-law of the deceased for
offences under Sections 498-A read with Section 114 of IPC as
well as for offence under Section 323 of IPC is quashed and set
aside. The conviction and sentence imposed upon accused
no.4, Bhavnaben Kantibhai Parmar, sister-in-law of the
deceased and accused no.5, Manoramaben Kantibhai Parmar,
mother-in-law of the deceased for offence under Sections 498-
A of IPC is also quashed and set aside. Accordingly, original
accused nos.3, 4 and 5, appellant nos.2, 3 and 4 in Criminal
Appeal No.1171 of 2014 are acquitted from all the charges
levelled against them.

22.1 The conviction and sentence imposed upon original
accused no.1-Kantilal Laxmanbhai Parmar, father-in-law of the
deceased for the offence under Section 498-A read with
Section 114 of IPC and Section 323 of IPC is upheld.
Resultantly, the accused no.1, Kantilal Laxmanbhai Parmar is
directed to surrender before the concerned trial Court within a
period of four weeks from today to serve out the sentence,
failing which learned trial Judge shall take necessary action in
accordance with law to secure his presence.

22.2 Record and Proceedings to be sent back to the Trial Court
forthwith. Bail bond, if any, stands cancelled.

-/Sd
(A. P. THAKER, J)

Page 15 of 16
R/CR.A/1171/2014 CAV JUDGMENT

FURTHER ORDER

Learned advocate Mr.Samir Afzal Khan for the appellants
requests to give benefit of probation and also requests to give
time of eight weeks to surrender before the trial Court.
Considering the offence of cruelty to the woman, the request
for probation is declined. Time for four weeks to surrender is
sufficient and, therefore, the request for granting more time is
also rejected.

Sd/-

(A. P. THAKER, J)
R.S. MALEK

Page 16 of 16

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