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Vikaramsinh vs Unknown on 23 August, 2010

Gujarat High Court Vikaramsinh vs Unknown on 23 August, 2010Author: Rajesh H.Shukla,&Nbsp;

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CR.A/5141997/1997 1/ 31 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

APPEAL No. 514 of 1997

For

Approval and Signature:

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA

=========================================

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, 1950 or any order made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================

VIKARAMSINH

JUJARSINH VAGHELA & 2 – Appellant(s)

Versus

STATE

OF GUJARAT – Opponent(s)

========================================= Appearance :

MR. RISHABH

SHAH for MR KB ANANDJIWALA for Appellant(s): 1 – 3.

MR. A.J.DESAI, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1,

=========================================

CORAM

:

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA

Date

: 12.4.2010

ORAL

JUDGMENT

The

present appeal is directed against the judgment and order passed by the learned Additional Sessions Court, Sabarkantha at Himatnagar in Sessions Case No. 23 of 1994 dated 9.5.1997 recording acquittal of Accused Nos.1 to 5 for the offence under Sections 302 and 304B of Indian Penal Code. However, the learned Additional Sessions Judge has recorded conviction of the Accused Nos.1, 2 and 4 for the offence under Sections 498A and 306 IPC and also imposed sentences as stated in detail in the impugned order.

The

facts of the case briefly summarized are as follows:

It

is the case of the prosecution that the daughter of the complainant uncle has been married to Accused No.1 Vikramsinh Gujarsinh Vaghela ( A-1 ), and after one year, she was ill-treated, and the demand for money and dowry was made, for which A-1 had also written some letters. It is also alleged that the complainant would give some money and after arriving at some understanding, he would try to save the matrimonial life of the deceased daughter. It is also stated that on 6.3.1993, the deceased had come to her parental house, and when the complainant went to his brother’s house, the deceased started weeping stating that a demand for buffalo has been made by the accused persons, and therefore, she has stated that they may send the buffalo and also Rs.10,000/- within 2-3 days. Thereupon the complainant uncle is said to have explained her that they would send the buffalo within 2-4 days and also Rs.10,000/-. Thereafter the complainant uncle and others gone to drop her at her matrimonial house and also informed her in-laws that the buffalo would be send within 2-4 days. It is also stated that A-1 had demanded Rs.10,000/- stating that he does not have buffalo, but he had promised to give within 2-4 days. After about 4 days, the message came that the deceased has burnt at village Ambaigada and this information was received on the basis of the telephone received at the house of one Karansinh. The message was received by the wife of Karansinh – Dasuba, who in turn informed the parents and the complainant. On the basis of this, the complaint was registered for the alleged offences under Sections 302, 304B, 498A and 306 read with Section 114 of IPC.

On

the basis of the complaint given by the complainant, the offences came to be registered. After the investigation was over, the charge sheet was filed, and as the offences were triable exclusively by the Court of Sessions, it was committed to the Court of Sessions. Thereafter, the learned Additional Sessions Judge, Sabarkantha at Himatnagar framed charges levelled against the accused persons for the alleged offences under Sections 302, 304B, as well as 498A read with Section 114 of IPC.

In

order to bring home the charges levelled against the accused persons, the prosecution has examined the witnesses as narrated in detail in the judgment. The prosecution has also produced the documentary evidence, which shall be referred to in the judgment as and when required.

After

recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded the further statement of the accused persons under Section 313 of Cr.PC. In the further statement, A-1 has stated that, the deceased has committed a suicide or whether it was an accident, he does not know. The other accused persons had stated the same way.

After

hearing the learned Public Prosecutor as well as learned advocate for the defence, learned Additional Sessions Judge acquitted A-3 and A-4 for all the charges and also acquitted A-1, A-2 and A-4 for the offence under Sections 302 and 304B. The learned Additional Sessions Judge has however recorded conviction of A-1, A-2 and A-4 for the offence under Sections 498A read with Section 306 and 114 IPC and sentenced them as stated in the judgment.

It

is this judgment and order which has been assailed on the ground inter alia that the conviction of A-1, A-2 and A-4 for the alleged offence has been recorded erroneously and the learned Judge has failed to appreciate that there was no charge framed for the offence under Section 306 with regard to abetment. For that purpose, learned advocate Mr. Rishabh Shah for Mr. K.B.Anandjiwala for the Appellants accused persons referred to the charge at exh.4 and submitted that the trial had proceeded on the basis that the charge was for the offence under Section 302, 304B and 498A, and the conviction could not have been recorded for the alleged offence under Section 306 in the absence of any specific charge. Learned advocate Mr. Shah submitted that as no opportunity was given to the accused persons, to deny and contest for such charge under Section 306, the conviction could not have been recorded. He emphasized and submitted that the charge for offence under Section 306 is separate and distinct for the offence under Section 498A. Learned advocate Mr. Shah referred to Section 464 which referred to Effect of omission to frame, or absence of, or error in, charge. . Referring to this, learned advocate Mr. Shah submitted that the Court has to examine whether there is any failure of justice because of such irregularity or defect in the charge. He therefore, submitted that since the offence under Section 306 is a separate and distinct offence, the opportunity cannot be said to have been afforded to the accused persons to deny such charges. Therefore, conviction could not have been recorded. He also submitted that the State has not preferred any appeal against the acquittal of the present accused persons qua the offence under Sections 302 and 304B. Therefore, he emphasized and submitted that in the absence of charge and any opportunity to defend, at the most the conviction could be sustained for the offence under Section 498A, and as the accused persons have substantially undergone sentence of 3 years, the present Appeal may be allowed qua conviction under Section 306 and the sentence awarded may be quashed and set aside.

Learned

advocate Mr. Shah also referred to the judgment of the Hon’ble Apex Court in case of Shamnsaheb

M. Multtani v. State of Karnataka, reported in AIR

2001 SC 921,

and submitted that as observed in this judgment, when the opportunity to defend the charge is not provided, the conviction cannot be sustained.

Referring

to the observations in this judgment, learned advocate Mr. Shah has emphasized that the offence under Section 306 cannot be said to be a minor offence as it is a separate and distinct offence. Therefore, referring to Section 222(1) of the Code, he submitted that though it provides that, when a person is

charged

with an offence consisting of several particulars, he may be convicted of the minor offence, though he was not charged with it. However, reading Section 221 and 222, it would be evident that it could not be for a separate offence. He referred to the observations in paragraph 21, wherein the Hon’ble Apex Court has quoted the earlier judgment reported in AIR

1997 SC 3233;

It

is true that Section 222, Cr.P.C. Entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306, I.P.C. cannot be said to be a minor offence in relation to an offence under Section 302, I.P.C. within the meaning of Section 222 Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302, I.P.C. is homicidal death, those of Section 306 I.P.C. are suicidal death and abetment thereof.

Learned

advocate Mr. Rishabh Shah also submitted that even on merits, the learned Judge has failed to appreciate the material and evidence on record and has also failed to appreciate and consider that the prosecution has failed to establish the charges levelled against the accused persons for the alleged offences. For that purpose he referred to the testimony of the complainant uncle at exh.47 and submitted that it is not corroborated by the testimony of PW-3 – father at exh.51. He also referred to the the testimony of PW-4 Executive Magistrate, who recorded the dying declaration at exh.54 and submitted that, even if the dying declaration, which is not found reliable by the Sessions Court, is considered, there is nothing against A-2 (father-in-law). He therefore strenuously submitted that what has been stated in the dying declaration is with regard to A-1 and A-4. However, he referred to the dying declaration as well as testimony of PW-4 at exh.52 and submitted that the police and other people were there when the dying declaration was recorded. Further, it is also stated that she had extensive burn injuries and she was having pain, and therefore, cannot be said to be in fit state of mind, which is also discussed by the Sessions Court.

He therefore submitted that it has also been admitted in cross-examination that she was having extensive burn injuries and he would repeatedly asked the questions. Learned advocate Mr. Shah therefore submitted that the dying declaration has not been found to be reliable, and is therefore not relied upon, and therefore, the accused persons have been acquitted of the charges for the offence under Section 302 of IPC. Similarly, as discussed in the judgment, there is no corroboration to the testimony of the complainant at exh.47 regarding the demand of dowry. Learned advocate Mr. Shah submitted that, therefore, what remains is the charges levelled with regard to harassment and cruelty under Section 498A. He submitted that whether in the facts and circumstances and in light of the evidence on record, the said alleged offence can be said to have been proved or established beyond reasonable doubt. He emphasized regarding testimony of the defence witness at exh.147 that he was present and he was an eye witness to the incident, and considering this aspect, the charges for offence under Section 302 are not accepted or believed by the Sessions Court, as it was stated by the witness that, she had set her on fire and on hearing her shouts, he had rushed there. Learned advocate Mr. Shah strenuously submitted that the conduct of A-1 as stated by this witness is that he rushed to the place of incident and tried to rescue / save the deceased by pouring water and covering

her with the cloth. He has also stated that he had thereafter telephoned to one Devisinh at Khed Brahma. Learned advocate Mr. Shah therefore submitted that even the prosecution case is that the message was received from one Devisinh and he has narrated about the incident as a eye witness and it is on the basis of this testimony of the defence witness, the charges for offence under Section 302 have not been accepted nor the charges for offence under Section 304 have been accepted or believed by the trial Court. However, for the alleged constant harassment and / or the cruelty whether the ingredients for the offence under Section 498A can be said to have been established, is required to be considered. Learned advocate Mr. Shah submitted that, every harassment or quarrel and discord in the matrimonial life , need not be accepted as a cruelty. He referred to Section 498A and submitted that it should be such a harassment, which would lead the person to commit suicide. He referred to and relied upon the judgment of the Hon’ble Apex Court in case of Ramesh

Kumar v. State of Chhattisgarh (2001) 9 SCC 618, and referred to the provisions of Section 306. He submitted that for attracting the offence under Section 306, the ingredients are required to be fulfilled and there has to be some incident which has the proximate cause with the ultimate suicide committed by the deceased. Learned

advocate Mr. Shah strenuously submitted that as there is no such evidence brought on record, the offence under Section 306 cannot be said to have been established or proved beyond

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