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State Of Gujarat vs Goswami Devgar Keshgar on 29 February, 2024

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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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NEUTRAL CITATION

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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NEUTRAL CITATION

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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NEUTRAL CITATION

R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024

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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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R/CR.A/1282/1999 JUDGMENT DATED: 29/02/2024

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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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