Gujarat High Court
Parbat vs State on 25 January, 2010
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
CR.A/1460/2007 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1460 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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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 ?
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PARBAT
@ PABA JADABHAI BHEDA AAHIR & 2 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
AR LAKHIA for
Appellant(s) : 1 - 3.
MS MANISHA L SHAH, APP for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 25/01/2010
ORAL
JUDGMENT
The present appeal under Section 374(2) of the Code of Criminal Procedure('the Code' for short) challenges the judgment and order dated 15-12-2007 passed by the learned Addl. Sessions Judge, Fast Track Court, Porbandar, in Sessions Case No.16 of 2007 whereby the present appellants-original accused, on being tried, were convicted for the offences punishable under Secs.498-A, 306 and 114 of IPC.
For the offence punishable under Sec.498-A of IPC, accused were sentenced to suffer RI for three years and to pay fine of Rs.1000/-, in default, to suffer further RI for two months. For the offence punishable under Sec.306 of IPC, the original accused No.1 was sentenced to suffer RI for five years and to pay fine of Rs.2000/-, in default, to suffer further RI for six months while the original accused Nos.2 and 3 were sentenced to suffer RI for three years and to pay fine of Rs.2000/-, in default, to suffer further RI for six months. Both the aforesaid sentences were ordered to run concurrently. The accused were given set off under Sec.428 of Cr.P.C. for the period undergone in jail.
The case in short is that present appellant No.1 is the original accused No.1, who happened to be elder brother of husband of the deceased Kanjanben and appellant No.3 is the wife of appellant No.1 and the accused No.2 is mother-in-law of the deceased Kanjanben. Marriage of deceased Kanchanben with brother of appellant No.1 took place two years prior to the date of incident. After the marriage, as she was not giving birth to a child, she was being taunted by the accused naming her as barren woman and was also giving physical and mental cruelty. It was alleged that a month prior to the date of incident, the appellants-accused were torturing mentally and physically as she was not knowing to reap corn crop and a quarrel ensued in which the appellant No.1 caused injury with blunt part of the spade and appellant Nos.2 and 3 abetted the appellant No.1 in causing injuries to the deceased Kanjanben. As she was fed up with the physical and mental harassment meted out at the hands of the appellants, the deceased committed suicide on 22-3-2007. Hence, a complaint to this effect was lodged before Kuthiyana Police Station being I.C.R.No.16 of 2007 and the police started investigation. The investigating officer then recorded statements of various persons and drew panchnama of scene of offence and at the end of investigation filed a charge sheet against the accused before the learned Judicial Magistrate (First Class). As the case was exclusively triable by the Sessions Court, learned Magistrate committed the case to the Court of Sessions under Sec.209 Cr.P.C. where it was numbered as Sessions Case No.16 of 2007. The learned Judge framed charge against the accused at Ex.5 for the offences punishable under Sec.306, 498-A read with Sec.114 of IPC which was read over and explained to the accused. They also filed their written statement at Exs.6 to 8 denying the said charge and claimed to be tried.
To prove the charge against the accused, the prosecution examined ten witnesses in all including P.W.1, Ex.10, Dr.Devendra Parsottambhai Sojitra, who performed post mortem on the dead body of the deceased, P.W.No.2 Virambhai Palabhai Bani, P.W.No.3 Jiviben Nemabhai at Ex.19, the investigating officer and other witnesses. The prosecution also produced and relied upon documentary evidences numbering 19 such as original complaint Ex.18, inquest panchnama, post mortem note Ex.14, panchnama of recovery of clothes wore by the deceased at Ex.24, panchnama of scene of offence at Ex.34, etc. After recording the evidence of witnesses and on submission of closing pursis by the prosecution, learned Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure in which it was stated by the accused that they are innocent and have been falsely involved in the crime. The accused did not examine themselves nor any other witness on their behalf as defense witness.
At the end of trial, after hearing the learned advocates appearing for the respective parties, the learned Addl. Sessions Judge, Fast Track Court, Porbandar, vide judgment and order dated 15th December, 2007 convicted the accused and sentenced as mentioned in the earlier part of this judgment which is giving rise to the present appeal by the original accused.
Heard learned counsel, Mr.A.R.Lakhia for the appellants and learned APP, Ms.M.L.Shah for the State.
It is submitted by the learned counsel for the appellants, Mr.Lakhia, that learned Judge has erred in appreciating the evidence of witnesses in true perspective. It is further submitted that the main allegation against the present appellants was that they tortured the deceased mentally by labelling her as a barren woman. In this connection, he has drawn the attention of this Court towards the evidence of the complainant as well as doctor, who performed post mortem on the dead body of the deceased, wherein it was revealed that the deceased was pregnant by 3-4 months at the time of her death. This fact would have been known to the family members including the female members of both the families and therefore, there was no question of torturing the appellants mentally for not bearing any child. Hence, the prosecution cannot be said to have proved beyond reasonable doubt that because of mental torture committed by the appellants, the deceased committed suicide. As far as the physical cruelty meted out by the appellants is concerned, it is submitted that as per the prosecution case, an incident of altercation took place between the accused and Kanjanben on trivial issue of cutting corn crop which is the so-called mental and physical harassment and cruelty and which does not fall within the definition of either Section 498-A or Sec.306 of IPC.
Taking this Court to the evidence of investigating officer, father and uncle of the deceased, it is submitted that when the deceased Kanjanaben went to her house of parents after the first incident, relatives of accused came to her and told that no such incident would take place in future and the deceased and her husband would be separated from the joint family. However, nothing happened and therefore, the deceased committed suicide.
Further, the independent witness, P.W.No.3, Ex.19, Jiviben Nebhabhai did not support the case of the prosecution and has been declared as hostile. Therefore, the only witnesses available on record are father and uncle of the deceased, who are family members and since they are interested witnesses, their evidence should not be relied on for basing conviction. It is further submitted that mere allegation of harassment against the accused is not sufficient to constitute the offence. The allegation must be proved through satisfactory and convincing evidence. Since the prosecution has not been able to prove beyond reasonable doubt that it is due to the physical and mental harassment and cruelty meted out at the hands of accused, the deceased committed suicide, conviction of the accused for the offence punishable under Secs.306 and 498-A of IPC was illegal and it is therefore requested that they may be acquitted of the charges levelled against them. He has relied on the judgments reported in 2006 (1) G.L.R. Page 514 in the case of State of Gujarat Vs. Bharatbhai Balubhai Lad & Ors. And 2008(2) G.L.R. Page 1178 in the case of Abhay Harinandan Oza Vs. State of Gujarat.
Learned APP, Ms.M.L.Shah for the respondent-State, has submitted that the prosecution has proved its case against the accused beyond reasonable doubt. According to her, the court below has discussed the evidence of father and uncle of the deceased as well as investigating officer and doctor in great detail, properly appreciated them in correct perspective and arrived at correct findings. Since the said findings do not appear to be improper or illegal, they are not required to be interfered with and the appeal filed by the appellants deserves to be dismissed.
This Court has gone through the oral as well as documentary evidence along with the impugned judgment and order of conviction and sentence passed by the court below. This Court has also gone through the judgments relied on by the learned counsel for the appellants. There cannot be any dispute regarding the principles laid down in those judgments. Keeping in mind the principles laid down therein, I proceed further.
In this case, the important evidences are the evidences of father and uncle of the deceased, doctor and investigating officer.
As per the post mortem note and the evidence of doctor, the deceased was pregnant and male foetus of about 3-4 months was found when the post mortem was performed. As the deceased was pregnant, it is but obvious that it might be within the knowledge of female in-law family members of the deceased as well as parents of the deceased and hence, there is no substance in the allegation made by the complainant, father and uncle of the deceased that accused were taunting the deceased by stating that she was barren and were giving physical and mental torture.
As per the evidence of both the witnesses i.e. father and uncle of the deceased, in reference of cutting of maize crop, quarrel took place between the accused and the deceased and the appellant No.1 caused injury with blunt part of the spade and appellant Nos.2 and 3 abetted the appellant No.1 in causing injuries to the deceased Kanjanben. As per the evidence of these two witnesses, it is informed by the deceased herself that after the aforesaid incident took place, she came back to her parents' house and informed to her husband and her husband took her to the hospital for treatment at Upleta but her husband told her to say before the doctor that she received injuries through cow and she came to parents' house with medical papers and medical treatment was thereafter arranged by her parents. However, no medical papers were produced. Apart from that, the doctor, who was examined by the prosecution did not prove this fact and so, it creates doubt in the mind of the court as to whether such incident has taken place or not. Even assuming that the said incident has taken place, then also, it could not be said that accused persons have instigated the deceased to commit suicide.
On going through the evidence of father and uncle of the deceased, it is found that relatives of accused came to the house of parents of deceased and told that no such incident of harassment will take place and the deceased and her husband will be separated from the joint family. However, for twenty days, since the husband of the deceased did not take any steps, the deceased committed suicide. This fact is corroborated with the evidence of investigating officer. The investigating officer has deposed that during the course of investigation, he got an information from husband of the deceased that as the deceased intended to live separately from the joint family of her husband and as the her husband did not take any steps, she committed suicide. When this fact is also corroborated by the evidence of father and uncle of the deceased, the trial court ought not to have held guilty the accused for the offence punishable under Sec.306 of IPC.
For inflicting the charge under Sec.306 of IPC, there has to be some evidence immediately before the happening of incident to indicate about harassment and torture at the hands of the accused to the deceased. As per the evidence available on record, the ingredients of Sec.107 of IPC about abatement to commit suicide are not proved by the prosecution through cogent and convincing evidence and hence, the trial court has committed error in convicting the accused persons for the offence punishable under Sec.306 of IPC. Hence, they are required to be acquitted for the offence punishable under Sec.306 of IPC. However, taking into consideration the entire evidence on record, they can at the most be held guilty for the offence punishable under Sec.498-A of IPC for harassment and hence, conviction of the appellants for the offence punishable under Sec.498-A of IPC is required to be confirmed. It is submitted by learned advocate for the appellants that the appellant No.1 remained in jail for two years and seven and half months while the appellant Nos.2 and 3 remained in jail for five and half months. They have been sentenced to undergo RI for three years. In view of the above, the sentence of the appellant No.1 for the offence punishable under Sec.498-A is confirmed. However, the sentence imposed on the appellant Nos.2 and 3 can be reduced to the period which they have already undergone being the lady accused.
In view of the above, the appeal is partly allowed. The appellants are acquitted for the offence punishable under Sec.306 of IPC. The conviction and sentence of the appellant No.1 for the offence punishable under Sec.498-A IPC is hereby confirmed. However, while confirming the conviction of the appellant Nos.2 and 3 for the offence punishable under Sec.498-A of IPC, the sentence imposed on them is reduced to the period they have already undergone. The appellant Nos.2 and 3 are on bail and hence, their bail bonds stand cancelled. The impugned judgment and order dated 15-12-2007 passed by the learned Addl. Sessions Judge, Fast Track Court, Porbandar, in Sessions Case No.16 of 2007 stands modified to the aforesaid extent.
(M.D.SHAH,J.) radhan Top