Gujarat High Court
State Of Guj vs Sunilkumar I Thakar & ... on 8 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/504/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 504 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
===========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJ....Appellant(s)
Versus
SUNILKUMAR I THAKAR & 3....Opponent(s)/Respondent(s)
================================================================
Appearance:
MR HARDIK SONI, ADDITIONAL PUBLIC PROSECUTOR for the Appellant
ABATED for the Opponent(s)/Respondent(s) No. 3
MR K J PANCHAL, ADVOCATE for Respondents Nos. 1, 2 & 4
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 08/12/2017
CAV JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI) Page 1 of 45 HC-NIC Page 1 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT
1. By way of this appeal, the appellant - State of Gujarat has assailed the judgment and order dated 02.03.1994, passed by the learned Additional Sessions Judge, Bharuch, whereby the respondents (original accused) have been acquitted of the offences punishable under Sections 302, 304B (2), 306 and 498A of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961 ("the Dowry Prohibition Act" for short).
2. Sonalben (deceased) was the wife of respondent No.1 Sunilkumar Indulal Thakar. Indiraben Indulal Thakar is the motherinlaw of the deceased. Indulal Ganpatrao Thakar was the fatherinlaw of the deceased, who has since died and the appeal qua him has abated. Pannaben Mukeshbhai Bhatt is the married sisterinlaw of the deceased. The marriage between respondent No.1 and the deceased took place on 04.02.1990 at Borsad. The case of the prosecution is that on the night intervening 12.10.1990 and 13.10.1990, between 1:00 AM to 2:00 AM, respondent No.1 caused the death of the deceased with the help of respondents Nos.2 and 4 (mother and sister Page 2 of 45 HC-NIC Page 2 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT respectively). Alternatively, respondents Nos.1, 2 and 4 have also been charged with harassment to the deceased for dowry which led her to commit suicide. Hence, they are also charged with abetment of suicide. As per the case of the prosecution, the respondents used to harass and torture the deceased and demanded utensils, a doublebed and a scooter from Rajanikant Bapalal Patel, father of the deceased, at the time of marriage. These articles were given to the respondents and were accepted by them. During the wedding, it is alleged that respondent No.1 demanded Rs.2,000/ to alight from the vehicle and an amount of Rs.10,000/ to sit in the wedding Mandap which was paid by the father of the deceased. Respondents Nos.1, 2 and 4 are also alleged to have driven the deceased to commit suicide by making demands for dowry.
3. Upon investigation, as sufficient material was found against the respondents, a chargesheet was filed in the Court of the learned Judicial Magistrate, First Class, who committed the case to the Court of Sessions. The charge was framed against the accused at Exh.10. Later on, the charge was modified and Sections Page 3 of 45 HC-NIC Page 3 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT 3 and 4 of the Dowry Prohibition Act were came to be added on 28.03.1993. The respondents denied the allegations levelled against them and claimed to be tried. The prosecution examined eight witnesses in support of its case and produced voluminous documentary evidence.
4. The learned Sessions Judge, after appreciating and examining the oral and documentary evidence acquitted respondents Nos.1, 2 and 4 of the offences with which they were charged, on the ground that the prosecution had failed to produce sufficient material to prove their guilt.
5. The statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 ("the Code" for short), were recorded. In his statement under Section 313 of the Code, respondent No.1 has stated that his wife, Sonal, was of a stubborn nature. Before her marriage, she had a love affair with somebody and she often used to say that she does not want to live, as she has no interest in life. He used to counsel her and tell her to forget Page 4 of 45 HC-NIC Page 4 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT her past and advise her to live in the present. However, Sonal did not listen to him and often used to get angry without any reason. When Sonal got angry, she lost control of herself and said that she does not want to live and may commit suicide.
6. As per the explanation given by respondent No.1 in his statement under Section 313 of the Code, on the day of the incident he had gone for work in the afternoon. He returned home at 10:00 PM. His wife, Sonal, was not present at home; therefore, he opened the door with his own key and entered the house. He got a telephone call from Sonal that she was at Jagdishbhai's house and that he should join her there. Respondent No.1 went to Jagidshbhai's house. After taking dinner, both Sonal and he returned home. At 11:00 PM, he put on the television and was watching it. Sonal was writing Diwali cards to her relatives. After she finished writing, she went to the bedroom. Respondent No.1 dozed while watching television and did not know when he fell asleep. Sonal did not come to wake him up, as usual. When he awoke, he went to the bedroom and saw Sonal hanging with her dupatta Page 5 of 45 HC-NIC Page 5 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT from the fan. He tore the dupatta from the middle, lifted Sonal's body and laid it on the bed. Thereafter, he called up his friends Yogeshbhai (PW2) and Girishbhai (not examined). When Yogeshbhai arrived, he informed the Police and Sonal's parents. He also telephonically informed the parents of respondent No.1 at Vadodara regarding the incident. Respondent No.1 further states that he has never inflicted any physical or mental torture upon his wife Sonal. His parents and sister have also never tortured or harassed her in any manner. Nor have they ever asked for any article or money. He states that a false case has been foisted upon them.
7. Assailing the judgment of the Trial Court, Mr.Hardik Soni, learned Additional Public Prosecutor, has submitted that the Trial Court has given unnecessary weightage to a supposed love affair of the deceased before her marriage. What actually happened is not on record and has emerged only in the statement under Section 313 of the Code.
7.1 That the deceased died an unnatural death within Page 6 of 45 HC-NIC Page 6 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT seven months of marriage. No complaint has been made by respondent No.1 to the parents of the deceased regarding her socalled suicidal tendencies. The presumption under Section 113A of the Indian Evidence Act, 1872 would, therefore, come into play. 7.2 That the conduct of the accused is required to be noticed. Instead of taking the deceased to the hospital, he straightaway called up his friend Yogesh, who informed the Police and the parents of the deceased.
7.3 That the weight of the deceased was between 56 to 59 Kilograms. Had she hung herself from the ceiling fan, there would be damage to the fan or blades, which is not the case. Hence, there is every likelihood that respondent No.1 strangled the deceased and hung her body.
7.4 That the findings of the Trial Court regarding the discrepancies in the deposition of PW3, father of the deceased, and the letter written by him to the Superintendent of Police, Bharuch, are not proper. The Page 7 of 45 HC-NIC Page 7 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT finding that there is no allegation of dowry demand or torture in the said letter cannot be read out of context as the letter had been written to conduct a fair investigation. It is not necessary that each and every detail is required to be mentioned. Pw3 is of the view that his daughter was murdered, therefore, he had demanded proper investigation. It cannot be said that there are contradictions in his deposition and the letters written by him. Even if there are some contradictions, they are minor in nature and the testimony of the complainant cannot be discarded on this ground.
7.5 That the deceased was eight to ten weeks pregnant so there was no reason for her to commit suicide, as stated by respondent No.1. In the alternative, it is submitted by the learned Additional Public Prosecutor that, if the Trial Court did not find sufficient material to convict the accused under Section 302 IPC, they could have been convicted under Sections 304B(2) and 306 IPC. Failure to do so has occasioned injustice. The prosecution witnesses have deposed regarding the harassment and the demands for dowry Page 8 of 45 HC-NIC Page 8 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT meted out to the deceased. However, their depositions have not been considered in proper perspective by the learned Judge.
7.6 That respondent No.1 was last seen together in the company of the deceased. Hence, he would be the prime suspect and his involvement in the murder of the deceased is made out.
7.7 On the basis of the above submissions, the learned Additional Public Prosecutor has urged that the appeal be allowed and the judgment of acquittal be reversed.
8. Strongly opposing the above submissions, Mr.K.J. Panchal, learned counsel for respondents Nos.1, 2 and 4, has submitted that the prosecution has utterly failed to prove its case beyond reasonable doubt. The case rests solely upon circumstantial evidence as there are no eyewitnesses to the incident. The chain of circumstances pointing out to the guilt of respondents Nos.1, 2 and 4 is not at all complete. Several doubts emerge from the evidence on record and Page 9 of 45 HC-NIC Page 9 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT the strong possibility that the deceased committed suicide, as she was of a sensitive nature and was depressed about her previous love affair, cannot be ruled out.
8.1 That respondent No.1 and his family members have never demanded any dowry from the deceased or her family members. On the contrary, there is evidence on record, in the shape of the letters of the deceased, that respondent No.1 had ordered a doublebed for the deceased and had asked her to choose the design. He was also about to purchase a refrigerator from the bonus he was likely to receive. This has been stated by the deceased herself in her letter to her parents. In the voluminous letters on record, the deceased has not once stated that she is being harassed or tortured or that respondent No.1 and his family members are demanding dowry from her. The tone and tenor of the letters suggests a cordial married life. 8.2 That is an admitted position that respondent No.2
- motherinlaw of the deceased and respondent No.4, her married sisterinlaw, were residing separately. Page 10 of 45 HC-NIC Page 10 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT Hence, there is no question of harassment from them. The marriage of the deceased took place on 04.02.1990. The deceased resided with respondent No.1 at Bharuch for two or three days thereafter and returned to her parents' place at Mehsana, to appear in an examination. She came back with respondent No.1 in the month of July, 1990. In the seven months of married life, she has stayed at her parents' place at Mehsana from February to July. Therefore, in the short span of three or three and a half months when she resided with respondent No.1, there is nothing on record to suggest that any harassment was meted out to her. 8.3 That the charge regarding torture to extort dowry and the deceased being done to death for non fulfilment of dowry demands, is not supported by any evidence on record. In the initial information given by PW3, no such allegations were levelled against the respondents. It is only later on, at the intervention of the leaders of the community when an article regarding the death of the deceased appeared in a newspaper, that allegations regarding the murder of the deceased for dowry were made by the complainant, Page 11 of 45 HC-NIC Page 11 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT by writing letters to the Police authorities, Chief Minister and Home Minister.
8.4 That it has come on record that after her death, all articles belonging to the deceased were returned by the respondents to her parents.
8.5 That PW3, father of the deceased, is not a truthful witness as he has made several improvements and embellishments in his testimony before the Court. He has stated different versions at different times. The story regarding an alleged extramarital relationship of respondent No.1 with a lady called Shaila, has not been proved and no material regarding this allegation is produced on record. Nor is there any evidence regarding his being a drunkard. In short, there is no evidence to connect the accused with the commission of the alleged offence.
8.6 That the evidence of PW7, Dr. Bharat Vadilal Mehta, who performed the Postmortem of the deceased, states that the cause of death is "asphyxia following hanging" and not due to strangulation. The Postmortem Page 12 of 45 HC-NIC Page 12 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT was performed by a panel of two doctors and the opinion is of both doctors.
8.7 That, had there been any grain of truth in the story of the prosecution that respondent No.1 strangled the deceased and then hung her from the fan, there would have been signs of violence in the room which were not found as per the Panchnama of the Scene of Offence. Further, there were no marks indicating violence on the body of the deceased.
8.8 That there is no recovery or discovery of any objectionable or incriminating article at the instance of the respondents. The dupatta used by the deceased for hanging herself was seized by the Police but not sent to the Forensic Science Laboratory for examination.
8.9 That the conduct of respondent No.1 when he found his wife hanging cannot be questioned. He was shocked and was crying. His first reaction was to call his friend Yogeshbhai, who also found him crying when he arrived. Respondent No.1 was not in a position to call Page 13 of 45 HC-NIC Page 13 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT his own relatives or those of the deceased and it was Yogeshbhai who informed the Police and relatives by telephone. This cannot be considered as unnatural conduct on the part of a griefstricken husband. 8.10 Though it may be true that respondent No.1 was last seen together in the company of the deceased, however, the onus to prove how the deceased died is not upon him. He is required to give a plausible explanation, which he has done in his statement under Section 313 of the Code. The letters written by the deceased to respondent No.1 have been exhibited and reveal the oversensitive nature of the deceased. It is for the prosecution to prove its case beyond reasonable doubt, which it has failed to do. 8.11 That the deceased has committed suicide because she was not desirous of having a child and found herself pregnant. She did not want a child so early in her marriage as she had applied in a Bank for employment. The deceased was of a hypersensitive nature and the fact that she was pregnant could have led her to commit suicide. None of the charges Page 14 of 45 HC-NIC Page 14 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT levelled against the respondents are made out. There is no evidence of dowry demand or abetment of suicide and the ingredients of the said offences are not present. The prosecution has utterly failed to establish that the deceased was treated with cruelty by the respondents or that they are involved in her death.
8.12 That the view taken by the Trial Court is plausible and probable, considering the facts and circumstances and evidence adduced in the case. Hence, the said view, being a possible one, may not be disturbed.
8.13 In support of the above submissions, learned counsel for the respondents has relied upon certain judgments.
(1) The first judgment relied upon is in the case of Subramaniam Vs. State of Tamil Nadu and Another reported in (2009) 14 SCC 415, where the Supreme Court has held as below:Page 15 of 45
HC-NIC Page 15 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT "23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor."
(2) Reliance is next placed upon the judgment in the case of Mula Devi and Another Vs. State of Uttarakhand reported in (2008) 14 SCC 511, in which the judgment in the case of State of Rajasthan Vs. Raja Ram reported in (2003) 8 SCC 180, has been discussed by the Supreme Court, wherein the law relating to circumstantial evidence has been delineated. The relevant paragraphs from State of Rajasthan Vs. Raja Ram (supra) are as under:
"15. In Hanumant Govind Nargundkar and Anr. V. Page 16 of 45 HC-NIC Page 16 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
Page 17 of 45
HC-NIC Page 17 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(3) In the case of Dasari Siva Prasad Reddy Vs. Public Prosecutor, High Court of A.P., the Supreme Court has discussed the aspect of last seen together, in the following terms:
"23. However, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW 3's evidence which was believed by the trial Page 18 of 45 HC-NIC Page 18 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT court, the appellant contacted him in the morning at a.a. And brought PW 3 to his house giving a hint that something untoward happened to his sister (i.e. the deceased). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial court is not the only possible view. But, that is not enough to reverse the acquittal."
(4) The judgment in the case of Arun Kumar Sharma Vs. State of Bihar reported in (2010) 1 SCC 108, has also been referred to, wherein the judgments and order of conviction passed by the Trial Court and the Appellate Court were set aside and the accused was acquitted of all offences. However, this judgment is not required to be discussed in detail as the respondents herein have already been given the benefit of a clear acquittal by the Trial Court. (5) The next judgment on which reliance is placed by the learned counsel for the respondents is that in the case of Jose Alias Pappachan Vs. SubInspector of Page 19 of 45 HC-NIC Page 19 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT Police, Koyilandy And Another reported in (2016) 10 SCC 519, wherein the characteristics of suicidal death and death due to strangulation have been discussed. The relevant paragraphs are as under:
"52. On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty under Section 498A IPC and that the co accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of the prosecution.
53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the Page 20 of 45 HC-NIC Page 20 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
9. In the background of the above legal and factual submissions, it would be fruitful to advert to the relevant oral and documentary evidence on record.
10. PW1, Ashwin Natvarlal Talati, is the Panch Witness of the Panchnama of the Scene of Offence. He deposes regarding the factum of drawing up the said Panchnama and his appending his signature thereupon. He states that he acted as a Panch Witness because he was available and the Police told him to sign the Page 21 of 45 HC-NIC Page 21 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT Panchnama. He does not remember whether any other person was present there at that time. He further states that the bed, in the bedroom, was a little away from the wall and was crooked.
11. The Panchnama of the Scene of Offence is at Exh.42. It is stated therein that a piece of multicoloured dupatta (green, yellow, brown and red) was hanging from the fan and the other half had been freshly cut. The roof was about nine feet above the ground and the fan was about seven feet and eight inches from the floor. The other half of the multicoloured dupatta was found on the bed. No marks were found on the dupatta.
12. PW2, Yogeshbhai Nagjibhai Patel, the friend of respondent No.1, was the first to arrive at the spot after the respondent called him. He states that on the day of the incident he returned home from work late at night after the second shift. He received a telephone call from respondent No.1, calling him to his house. This witness went with Girishbhai to the house of respondent No.1 and found nobody in the drawing room, Page 22 of 45 HC-NIC Page 22 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT the door of which was open. He then went to the bedroom and got the impression that the deceased was sleeping on the bed. Respondent No.1 was sitting there, crying. On asking him what had happened, respondent No.1, still crying, pointed towards a dupatta hanging from the middle of the fan. This witness states that as it appeared that the deceased was dead, he informed their other friends and the parents of the deceased and respondent No.1 telephonically. Thereafter he, accompanied by Girishbhai, went to the Police Station to inform the Police. The complaint was recorded, which is at Exh.44.
In crossexamination, this witness states that in his complaint he had stated that the saree was hanging from the middle of the fan, from its base. He states that he knew the deceased. The deceased and respondent No.1 had a happy married life. He further states that respondent No.1 had told him that he had fallen asleep while watching television at night. When he awoke and entered the bedroom, he found Sonal hanging. He further states that on 15.10.1990, the parents of the Page 23 of 45 HC-NIC Page 23 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT deceased and other persons from Borsad had come in a tempo to the house of respondent No.1 and damaged his property, which he came to know later.
13. The complaint given by PW2 to the Police is at Exh.44. It is stated therein that he had been called by respondent No.1 telephonically late at night at about 2:00 AM. He went there on his scooter with Girishbhai and saw the door open. When they entered the bedroom, they saw Sonal lying on the bed. Respondent No.1 was crying. They asked him what had happened and why he was crying. Respondent No.1 showed them the Saree hanging from the fan. It is stated that respondent No.1 had told him that he was watching television in the other room till late at night and fell asleep. When he awoke and entered the bedroom, he saw his wife, Sonal, hanging from the fan. He cut the Saree, brought her body down and put it on the bed. As he felt that Sonal was dead, he informed Vinodbhai, who lived in the society, as well as the parents of the deceased and respondent No.1, regarding the incident.
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14. The father of the deceased, Rajnikant Bapalal Patel, has been examined as PW3. He states that there is no custom of giving dowry in his community. However, the parentsinlaw of his daughter informed him that their son was a Chemical Engineer, therefore, they would have to give dowry at the time of marriage. According to this witness, the parents of respondent No.1 demanded cash, a doublebed, a scooter and a refrigerator. When the engagement took place, respondent No.2 wrote a list of articles that were to be given, in her own handwriting, which is at Exh.58. This witness further states that he was told to give an amount of Rs.2,000/ to respondent No.1 for alighting from the car which he gave, though there is no such custom in his community. The mother of respondent No.1 told him to pay an amount of Rs.10,000/ for her son to sit in the Mandap. After consulting his relatives, he had paid Rs.10,000/ and, thereafter, the wedding ceremony began. According to this witness, his daughter Sonal went to her matrimonial house and then returned to his house in order to appear for her B.A. Examination. After the examination was over, respondent No.1 came to pick her Page 25 of 45 HC-NIC Page 25 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT up and demanded kitchen utensils and a doublebed. Utensils worth Rs.2,000/ were given to respondent No.1 and he and Sonal returned to Bharuch with the said utensils. This witness admits that respondent No.1 and Sonal lived at Bharuch, separately from the parents of respondent No.1 and his married sister, who lived in Vadodara and Surat, respectively.
This witness states that on 17.09.1990, respondent No.1 and his daughter had come to attend the 'Besna' ceremony of his sisterinlaw. After it was over, respondent No.2 (motherinlaw of the deceased) asked him why he was not giving the articles as agreed upon. The respondents returned in the evening but his daughter Sonal stayed back. That evening, his daughter cried and informed her relatives that she did not want to return to her matrimonial home. She said this in the presence of his brothers inlaw Navinkumar Thakar and Madhubhai Thakar, mother and fatherinlaw of this witness, his wife and other relatives. On asking her the reason, Sonal is stated to have said that respondent No.1 has the bad habit of consuming liquor and has an extra marital affair with Page 26 of 45 HC-NIC Page 26 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT a girl named Shaila, which she does not like. It is for this reason that she does not want to go back to him. According to this witness, Sonal also stated that if the articles, as demanded, are not given by them, the respondents would kill her. The relatives then counselled Sonal to return as the festival of Diwali was approaching and it was her first Diwali in the matrimonial home. Sonal was, therefore, sent to Bharuch with a cousin of this witness, named Dinaben.
This witness further narrates that early in the morning of 13.10.1990, he received a telephone call informing him that Sonal's condition was not good and he should reach Bharuch immediately. He, accompanied by his wife and son, left Mehsana for Bharuch at 4:00 AM and reached there at around 8:00 to 8:30 AM. When they went to the house of respondent No.1 and called Sonal, there was no reply. A man pointed towards a room and so they went to the room and saw Sonal's body lying on the bed. Her legs were hanging to the ground and her maxi had come upto her thighs. Her clothes were disorderly. On coming close, they found that Sonal had died. Foam was coming out from her mouth and Page 27 of 45 HC-NIC Page 27 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT browncoloured marks were found on her neck. This witness states that his wife examined the body and found a sticky substance on her private parts. This witness further states that there were scratch marks on her neck and semen stains on her thighs.
PW3 states that he has worked as a Medical Practitioner for the last thirty years and, according to him, it seemed that someone had killed Sonal by strangling her.
This witness further states that a man named Kishorebhai Jamadar, belonging to his community, had told him to inform other persons from Borsad, his native place. As they did not arrive on time, they cremated the body. He states that after reading an article in the newspaper regarding the death of his daughter, he felt that she had been killed by strangulation. When they were leaving after the 'Besna' was over, respondent No.3 stated that they should take an amount of Rs.10,000/ as he wanted his son to remarry. Therefore, a cheque of Rs.4,000/ and a promissory note of Rs.6,000/ was given to this witness. The promissory note is signed by respondent Page 28 of 45 HC-NIC Page 28 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT No.1.
This witness further states that at the time of his daughter's death, she was pregnant. She had informed them regarding this fact by letter, stating that Dr.Kapadia had told her so. This letter was jointly written by both Sonal and respondent No.1. It was also stated in the letter that both of them are happy regarding her pregnancy.
In crossexamination, this witness states that in the document at Exh.58, the articles required to be given by the bridegroom have also been mentioned. He states that when he saw Sonal's body, he told the Police that it is not a case of hanging and expressed his suspicions regarding her death.
This witness admits that in his statement before the Police, he has not stated that a demand of Rs.2,000/ was made by respondent No.1 at the time of the wedding, for alighting from the car. Nor has he stated that Rs.10,000/ was demanded by respondent No.2 as dowry on the ground that her son is a Chemical Page 29 of 45 HC-NIC Page 29 of 45 Created On Fri Dec 08 23:22:29 IST 2017 R/CR.A/504/1994 CAV JUDGMENT Engineer. It is also not stated that a doublebed, scooter and refrigerator were demanded.
PW3 further admits that he has not stated before the Police that when he saw the deceased lying on the bed, her feet were hanging above the ground, her maxi had come upto her thighs and her clothes were in a disorderly condition. He states that he does not know whether it is written in his Police statement that foam was coming out from Sonal's mouth and there were brown abrasions on her neck, or that his wife examined Sonal's private parts and found a sticky substance and semen marks on her thighs and a scratch mark on her neck. He states that he does not know whether it is written in his Police statement that on 17.09.1990, during the 'Besna' of Truptiben, respondent No.2 asked him why he was not giving the articles as agreed upon, or that the deceased had told him that respondent No.1 has the bad habit of drinking liquor and has an extra marital affair with a girl called Shaila, which she does not like. He states that he does not know whether it is written in his Police statement that Sonal had told him to give the articles that were demanded, else Page 30 of 45 HC-NIC Page 30 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT she would be killed.
Denying the contents of his Police statement given on 13.10.1990, PW3 states that he did not state before the Police that no physical or mental torture was given to his daughter Sonal by respondent No.1 or her inlaws, or that they were living separately. He denies having stated that his daughter had never complained of any harassment from the respondents to him or his wife.
This witness further denies having stated before the Police that he had heard from respondent No.1 and his father that Sonal was pregnant by two months but she did not want to keep the child and wanted to abort it. He denies stating that there was a discussion regarding this between respondent No.1 and Sonal and respondent No.1 told her that they would not take any decision without discussing this issue with Sonal's parents, or on a sudden impulse, without thinking, Sonal had ended her life by hanging herself from the fan and committed suicide. He denies having stated before the Police that he has no other suspicions. Page 31 of 45 HC-NIC Page 31 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT PW3 further states that on 24.10.1990, he found many suspicious aspects in the matter, therefore, he wrote a letter to the Superintendent of Police for proper investigation as he feared that his daughter was killed.
He further admits that after 15.10.1990, the respondents returned the articles belonging to the deceased. He denies that he had come to the house of respondent No.1 on 15.10.1990 with other persons in a tempo and damaged the household articles. He admits the letters written by the deceased as being in her own handwriting.
15. PW4, Hasumatiben Rajnikant, is the mother of the deceased. Her testimony is more or less along the lines of her husband, PW3. She has deposed regarding the dowry demands alleged to have been made by the respondents from them.
16. PW5, Dinaben Amrutlal Bhatt, is the aunt of the deceased. According to this witness, she and the Page 32 of 45 HC-NIC Page 32 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT deceased travelled together from the parental house of the deceased after the 'Besna' of Truptiben was over. They boarded the local train from Borsad to Bharuch and travelled together for about three hours. During this time, Sonal had told her that her husband consumes liquor and is fond of arranging "mehfils" (gatherings). According to this witness, Sonal informed her that her motherinlaw, fatherinlaw and sisterinlaw used to tell her that in spite of the fact that her father is a Doctor, she had brought nothing with her and used to torture her regarding this aspect. This witness states, in cross examination, that Sonal's husband, fatherinlaw, motherinlaw and sisterinlaw used to torture her.
17. PW6 is Madhubhai Ambalal Thakar, who is not related to the deceased but appears to be a leader of the community to which her father belongs. He reiterates the story regarding the dowry demand and Sonal's disclosure regarding this to her relatives, after the 'Besna' of Truptiben was over. He states that Sonal had said that respondent No.1 used to consume liquor, was fond of "mehfils" and time and Page 33 of 45 HC-NIC Page 33 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT again demanded a scooter, refrigerator and cash from her father. He also used to taunt her. According to this witness, Sonal also disclosed that respondent No.1 used to torture her mentally and her inlaws used to visit Bharuch frequently in order to harass her. When respondent No.1 took Sonal to Vadodara, he used to call his sister respondent No.4, who also used to taunt the deceased. It is for this reason that Sonal did not want to go to her matrimonial house.
This witness states that it does not appear that Sonal committed suicide on her own but she could have been driven to do so due to mental torture. That the community leaders had got together and discussed the issue and arrived at the conclusion that, in order to prevent such incidents from occurring, some action should be taken. They, therefore, made an application dated 14.10.1990 to the Chief Minister, with a copy to the Superintendent of Police, Bharuch, upon which all leaders of the community had signed.
18. Dr.Bharat Vadilal Mehta, who performed the Postmortem on the body of the deceased, has been Page 34 of 45 HC-NIC Page 34 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT examined as PW7. This witness states that there was a ligature mark of 1.5 centimeters on both sides of the neck of the deceased and foam was coming out from her mouth and nose. However, there were no marks of injury on the other parts of her body, including her private parts.
19. PW8, Kalusinh Sujosinh Rathod, is the Investigating Officer. Contradicting the testimonies of PW3, father of the deceased and PW4, mother of the deceased, he states that PW3 did not state before him that respondent No.1 had demanded an amount of Rs.2,000/ for alighting from the car and respondent No.2 has not asked for Rs.10,000/ as dowry for her son, on the ground that he is a Chemical Engineer. This witness states that the respondents have not stated before him that when they went to the house of the deceased, they saw her feet hanging above the ground or that her maxi had come upto her thighs and her clothes were disorderedly and she was foaming from the mouth. They did not state that there were brown coloured abrasions on both sides of her neck. On the contrary, this witness has stated that PW3 had stated Page 35 of 45 HC-NIC Page 35 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT before him that his daughter and respondent No.1 were happily married and his daughter was not tortured physically or mentally by her husband or any other person. That his daughter has never complained of any harassment from them either to him or his wife, by letter or word of mouth.
20. The Postmortem Report is at Exh.98. The Postmortem has been performed by PW7. He and another doctor, have signed thereupon. The cause of death is stated to be: "In our opinion, cause of death is due to Asphyxia following hanging"
21. Several letters written by the deceased to respondent No.1 and her parents are on record, which assume importance as they are indicative of the mental state of the deceased and reveal the kind of family life she shared with respondent No.1.
22. Upon appreciation and evaluation of the entire oral and documentary evidence on record, we find that Page 36 of 45 HC-NIC Page 36 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT the Trial Court is correct in concluding that the death of the deceased was an unnatural one. We also find that the conclusion of the Trial Court that there is no material on record to indicate that the deceased was done to death by respondent No.1, with the aid of respondents Nos.2 and 4, or tortured physically and mentally for dowry, to be correct. The conclusion arrived at by the Trial Court that the deceased committed suicide for some reason of her own, maybe because of a failed previous love affair, cannot be said to be improbable, looking to the nature of the evidence on record.
23. We have carefully scrutinised and evaluated the entire evidence and perused the reasons recorded by the learned Judge in support of his findings. After doing so, we find ourselves in full agreement with the same, for the following amongst other reasons. 23.1 There is no evidence on record regarding any marital discord between the deceased and respondent No.1. On the contrary, the letters of the deceased to respondent No.1 indicate that after meeting him, she Page 37 of 45 HC-NIC Page 37 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT had regained faith in love, after the previous disillusionment suffered by her. A letter dated 03.12.1989, written by the deceased to respondent No.1 before their marriage, is indicative of her feelings in this regard. It appears from the said letter that the deceased had suffered some kind of disappointment earlier, due to which she had become "like a stone". She has stated that she likes respondent No.1 and desires to be in his company, but would require a little time. There are several other letters on record indicating the relationship between respondent No.1 and the deceased. In a letter dated 08.03.1990, written after their marriage, the deceased has referred to another letter from respondent No.1, asking her to choose a design for a doublebed that he intended to order for her. In another letter dated 13.03.1990, she states that she had buried feelings like love, sympathy and faith five years ago and had become "like a stone". This may be indicative of an earlier, failed love affair. Another letter dated 23.09.1990, written by the deceased to respondent No.1, reveals her excitement regarding the impending purchase of a television set by him. She writes that Page 38 of 45 HC-NIC Page 38 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT she would like to come home quickly so that she can watch television. In a letter dated 09.10.1990, written jointly by respondent No.1 and the deceased to the parents of the deceased, it is stated by respondent No.1 that Sonal is pregnant, her pregnancy test is positive and she is in good health. In the part written by the deceased, she has stated that she is well and has informed her brother Dipu regarding her pregnancy but told him not to reveal it to anyone. In another letter dated 06.09.1990, written by the deceased to her parents, she has stated that respondent No.1 would soon be purchasing a refrigerator from the bonus he would be receiving. 23.2 These letters reveal that far from demanding dowry, respondent No.1 was trying to fulfil his obligations as a husband and was purchasing household and electronic goods for the deceased in order to provide her with the comforts of life. In none of her letters has the deceased even remotely referred to any kind of illtreatment, harassment, torture or dowry demand by respondent No.1 or his family members. The letters indicate a cordial marital relationship Page 39 of 45 HC-NIC Page 39 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT between husband and wife and no strife with his family members.
23.3 The allegation that respondent No.1 has committed the murder of the deceased by first strangling her and then hanging her body from the fan, appears to be a figment of the imagination of PW3, who never ever whispered regarding illtreatment of his daughter or dowry demands in his initial statement to the Police. On the contrary, he had stated that he has no suspicions regarding respondent No.1 or his family members as his daughter was never tortured, either physically or mentally, by them and she and respondent No.1 were living a happy married life. It appears that it is only after the intervention of the leaders of the community, such as PW6, that PW3 began nurturing the idea of converting the apparently suicidal death of his daughter into a murder by implicating respondent No.1 and his family. Even the parents and married sisterinlaw of respondent No.1, who are admittedly living separately in different cities, have been roped in. There is no shred of evidence regarding any dowry demand. The list at Page 40 of 45 HC-NIC Page 40 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT Exh.58 is regarding customary articles, required during a marriage ceremony by both sides. 23.4 There is no material on record suggesting that the deceased was killed by first strangling her and then hanging her body from the fan. PW7, Dr. Bharat Vadilal Mehta, has categorically stated that the death of the deceased was due to asphyxia, following hanging. The word 'hanging' has been used as the cause of death in the Postmortem Report prepared by two doctors. Had it been a case of strangulation, the word 'strangulation' would have been used instead of 'hanging'. There is a difference between strangulation and suicide by hanging and the Doctors are competent to medically differentiate between the two.
23.5 Several contradictions appear in the statements of the father and mother of the deceased given before the Police and their depositions before the Court. Dinaben, PW5, also emerges as a tutored witness. It appears that the story of murder and dowry demand has been introduced as an afterthought, after Page 41 of 45 HC-NIC Page 41 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT careful deliberation with community leaders. The allegations made by PW3 and his letters to the Chief Minister, Home Minister and the Superintendent of Police, give different versions and are inconsistent with each other. Most important, the allegations made in the said letters have not been substantiated by producing cogent or credible evidence on record. 23.6 The parents of respondent No.1 were admittedly living separately at Vadodara while respondent No.1 and the deceased lived at Bharuch. Respondent No.3 the married sisterinlaw of the deceased, lived in her matrimonial home at Surat. There is no material, whatsoever, to connect these respondents with the commission of the alleged crime or dowry demands.
23.7 The version that respondent No.1 demanded Rs.2,000/ to alight from the car and Rs.10,000/ to sit in the Mandap and respondent No.2 demanded dowry for her son as he was a Chemical Engineer, appear to be an afterthought as a result of consultation with community leaders who decided to make the case an example so that such incidents do not recur. However, Page 42 of 45 HC-NIC Page 42 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT there is ample evidence on record, in the shape of the letters of the deceased, to indicate that she had received a setback in her love affair before marriage that had turned her into a "stone". The tone and tenor of her letters to respondent No.1, even before marriage, indicate her hypersensitive nature and propensity to dwell in the past rather than the present. She had told her brother not to disclose her pregnancy to anyone. As per the explanation given by respondent No.1, the deceased did not want to conceive a child and when she found she was pregnant, she wanted to abort it. She, therefore, took the extreme step and ended her life.
23.8 It is not for the respondents to prove their defence but for the prosecution to prove its case beyond reasonable doubt, which it has utterly failed to do. Why the deceased committed suicide cannot be answered with any certainty. However, the entire weight of evidence, including the medical evidence, points strongly towards a suicidal death rather than death by strangulation.
Page 43 of 45 HC-NIC Page 43 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT 23.9 The presence of respondent No.1 in the house on the fateful night, being the husband, is entirely natural. It cannot give a boost to the theory of "last seen together" sought to be propounded by the prosecution, in the absence of any corroborative material indicating that he had killed the deceased and her death was not a suicidal one.
24. The case rests upon circumstantial evidence and the prosecution has failed to establish the chain of incriminating circumstances against the respondents. No such facts have been established by the prosecution that can be said to be consistent only with the hypothesis of the guilt of the respondents, ruling out every other hypotheses. The chain of circumstantial evidence is far from complete and the links of the chain are scattered and uncohesive. The nature of the evidence adduced in the present case is so flimsy that it would be highly imprudent to base the conviction of the respondents upon it. In our view, the Trial Court has properly appreciated the evidence and arrived at a legally correct conclusion, by acquitting the respondents.
Page 44 of 45 HC-NIC Page 44 of 45 Created On Fri Dec 08 23:22:30 IST 2017 R/CR.A/504/1994 CAV JUDGMENT
25. We, therefore, find no justifiable reason to interfere with the judgment and order of acquittal recorded by the Trial Court.
26. The appeal fails and is dismissed.
27. Bail bonds, if any, stand cancelled. The R & P be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) piyush Page 45 of 45 HC-NIC Page 45 of 45 Created On Fri Dec 08 23:22:30 IST 2017