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Gujarat High Court
State Of Gujarat vs Goswami Devgar Keshgar on 29 February, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1282 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
STATE OF GUJARAT
Versus
GOSWAMI DEVGAR KESHGAR ORS.
Appearance:
MR. D.M.JAISWAL, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 4,6
MR TUSHAR CHAUDHARY(5316) for the Opponent(s)/Respondent(s) No.
1,2,3,5,7,8
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 29/02/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
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R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024
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1. Learned APP has tendered a report of the Police Inspector,
Dhanera Police Station, dated 2nd February 2024. The same is
ordered to be taken on record.
2. The report reveals that the accused no.1 Devgar Keshgar
Goswami has passed away on 28 th April 2023. The death
certificate is also produced along with the report. Hence, the
present appeal abates so far as the accused no.1 is concerned.
The present appeal now survives against the accused nos.2, 3, 5,
7 and 8. The other accused nos.1, 4 and 6 have passed away.
3. The appeal is filed under the provisions of Section 378(1)(3)
of the Code of Criminal Procedure, 1973, by the State
challenging the judgment and order of acquittal of the accused
dated 24th August 1999 passed by the learned Additional
Sessions Judge, Banaskantha at Palanpur in Sessions Case
No.35 of 1998.
4. The case of the prosecution as per the charge Exh.3 is that
the accused no.1 was married with the deceased in the year
1994. After the marriage, the deceased was subjected to
harassment and cruelty and the accused no.1 was demanding
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R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024
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money from the father of the deceased, and on 15 th October 1997
at around 8:00 p.m., all the accused person strangulated the
deceased and also a four months child. The charge under
Sections 498A, 304B and 302 read with Section 34 of the Indian
Penal Code was framed. The trial court, after analyzing the
documentary as well as oral evidence, has acquitted all the
accused from the offences for which they were charged, by giving
benefit of doubt.
5. Learned APP has submitted that the learned Judge ought
to have seen that from the evidence of the doctor, who performed
the postmortem of the deceased Gitaben, and her daughter, it is
crystal clear that the death of the deceased was doubtful. He has
further submitted that the learned Judge ought to have seen
that the death of the deceased Gitaben had taken place within a
period of three years of her marriage and, therefore, looking to
the brevity of her marriage life, the learned Judge ought to have
presumed under Section 113 of the Evidence Act.
6. Learned APP has submitted that the learned Judge ought
to have seen that there was a demand of Rs. 20,000/- from the
accused for purchase of buffalo and as the aforesaid demand
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R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024
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was not satisfied, the accused murdered the deceased Gitaben. It
is submitted that looking to the panchnama and conduct of the
accused, it is crystal clear that the accused are involved in the
present case and, therefore, the learned Judge ought to have
convicted all the accused for the charges for which they were
charged.
7. Learned APP has submitted that the learned Judge has not
properly appreciated the depositions of the complainant – PW1 –
Ganeshpuri Hamirpuri at Exh.20 and PW2 Rakhuben
Ganeshpuri at Exh. 24. These two witnesses have been
examined by the prosecution and they have clearly deposed in
their deposition with regard to the harassment and cruelty given
by the accused persons to the deceased, and as their demand of
dowry was not satisfied, they murdered the deceased Gitaben.
8. Learned APP has further submitted that the reasons
assigned by the learned Judge while acquitting the accused as
well as while appreciating the evidence on record are improper,
perverse and unwarranted. Therefore, he has urged before this
Court that the appeal be allowed and the accused be convicted
for the offences for which they were charged.
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9. We have perused the evidence which has surfaced on
record as well as the findings of the trial court. At the outset, it
would be relevant to refer to the postmortem report of the
deceased wife of the accused no.1 at Exh.30, wherein the doctor
has specifically opined the cause of death is by asphyxia due to
hanging.
10. The PW4 – Dr.Kishorbhai Shambumal Thakkar (Exh.29),
who has undertaken the postmortem of the deceased, has
categorically stated that the death of the deceased was due to
hanging. Thus, the version of the doctor corroborates with the
medical evidence as well as the defence witnesses.
11. The defence witness no.1 – Thakor Balvantsinh Ghudji has
categorically stated that on the night of the incident, the accused
no.1 was driving a jeep. The defence witness no.2 – Bhavabhai
Chehrabhai Patel, who is residing opposite the house of the
deceased and the accused, has categorically deposed that in the
evening, when they heard the cries of some persons, they rushed
to the house of the deceased and he found the room to be locked
from inside, they accordingly pushed the door and found that
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the deceased was hanging with the rope fastened on the wooden
log and the minor, who was sleeping in the pram nearby, was
found dead.
12. Thus, we do not find the evidence of both these witnesses
tainted with any contradiction or over implication or omission.
Thus, the allegations with regard to murder do not get
established by the medical evidence as well as the evidence of
the defence witnesses. We do not find any infirmity in the
findings recorded by the trial court so far as the charge of
murder is concerned. The trial court has precisely held that the
deceased died due to hanging and she strangulated the minor.
13. So far as the charge under Section 498A of the IPC is
concerned, it would be apposite to refer to the deposition of the
father of the deceased PW1 – Ganeshpuri Hamirpuri at Exh.20.
From his deposition, it is apparent that he improved his version
from the version recorded in his initial FIR. All the allegations
are made against the accused no.1, who has now passed away,
and even if the same are believed to be true, the appeal has been
abated against him. However, the version recorded in the FIR at
Exh.21 does not reconcile with the version as recorded by the
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trial court as he has made the allegation with regard to demand
of Rs.20,000/- by the accused. Similarly, the PW2, i.e. the
mother of the deceased, namely, Rakhuben Ganeshpuri at Exh.
24 has, in her cross-examination, admitted that, in fact, at the
time of marriage and thereafter, the accused have not demanded
anything from them since they were surviving on begging and
this fact was also known to the other side. She has admitted that
at the time of marriage, they have categorically stated that they
do not want anything in dowry. Even, otherwise, the allegations
are premised against the accused no.1 (husband of the
deceased), who has now passed away.
14. On the overall appreciation of the evidence, we find that
the trial court has not committed any infirmity or illegality in the
judgment and order of acquittal. Hence, the present appeal is
dismissed. Records and proceedings be sent back.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
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