Gujarat High Court
State Of Gujarat vs Bavaji Arvindgiri Mohangiri on 29 April, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
STATE OF GUJARAT....Appellant(s)V/SBAVAJI ARVINDGIRI MOHANGIRI....Opponent(s)/Respondent(s)
R/CR.A/1030/1995
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.
1030 of 1995
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
SMT. JUSTICE ABHILASHA KUMARI
===========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2
To
be referred to the Reporter or not ?
No
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
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 ?
No
5
Whether
it is to be circulated to the civil judge ?
No
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STATE OF GUJARAT....
Appellant
Versus
BAVAJI ARVINDGIRI MOHANGIRI
.... Respondent
================================================================
Appearance:
MR
HK PATEL, ADDL.PUBLIC PROSECUTOR for the Appellant
NOTICE
SERVED for the Respondent
================================================================
CORAM:
HONOURABLE SMT.
JUSTICE ABHILASHA KUMARI
Date : 29/04/2013 &
01/05/2013
ORAL JUDGMENT
The challenge in this appeal is to the judgment and order dated 04.08.1995, rendered by the learned Additional Sessions Judge, Junagadh, in Sessions Case No.12 of 1994, whereby, the respondent-original accused has been acquitted of the charges under Sections 498A and 306 of the Indian Penal Code.
Briefly stated, the case of the prosecution is that a complaint dated 05.12.1993, came to be filed by PW-2, Shantaben, mother of deceased Hansaben, at Police Station Una, Junagadh, which came to be registered as I-C.R.No.270/1993. According to the narration in the compliant, deceased Hansa and her husband, respondent No.1, had come to the house of the complainant two days prior to the incident. At about 3:00 pm, the respondent said that he was going to Okha for the business of fishing and his wife Hansa would stay at the house of the complainant. The respondent then left the house of the complainant to go to Okha. After he left, the deceased said that her grandmother-in-law had passed away, therefore, she must go to her matrimonial house. The deceased then left the house of the complainant. The complainant sent her son Mahadevpari, behind the deceased to see whether she had met respondent No.1 in the bus stand. After some time, Mahadevpari returned to the house of the complainant saying that respondent No.1 was at the bus stand and Hansa had joined him there. According to the complainant, a thought arose in her mind, whether Hansa had accompanied her husband to Okha or had gone to her house, at village Delvada. In order to ascertain this, the complainant left for village Delvada at 10:00 am the next morning, in a rickshaw. She reached there at about 11:00 am. As Hansa was living separately from her in-laws in Shyamnagar at Delvada, the complainant went to Hansa s house. When she reached there, she saw that the house was locked. Upon making inquiries from the neighbours, the complainant was told that Hansa had gone to wash clothes. The complainant waited for the deceased till 2:30 pm, but she did not return. The complainant thought that she must have gone to the house of her in-laws, who also lived in village Delvada. She, therefore, sent a boy to the house of Hansa s parents-in-law to inquire. At 3:00 pm, Hansa s sister-in-law (Jethani) came there and said that Hansa had not come to their place. She took the complainant to her house, to take tea. The complainant thought that Hansa may have gone to village Sanakhada, where the complainant lived. She took a rickshaw and returned to Sanakhada and reached her house at about 7:00 pm. She found that Hansa had not come home and she became worried. At about 7:30 pm, a person came in a rickshaw from Delvada and informed the complainant that the dead body of Hansa had been found in a Well. Hansa s brothers, namely, PW-3 Bhanpari and Mahendrapari (who has not been examined), along with Vashrampari, brother-in-law of the complainant and PW-6, Jerampari (nephew of the complainant), went to Delvada in the same rickshaw. They returned to the complainant s house on the next day and informed her that Hansa had died. The complaint was filed on the same day, that is, on 05.12.1993, on their return from village Delvada.
It is stated in the complaint that the married life of Hansa and the respondent was happy for about six months. Initially, Hansa used to live with her mother-in-law and father-in-law. Thereafter, she and the respondent had been living separately, for the last two years. It is stated that Hansa visited the house of the complainant frequently and used to say that the respondent beats and tortures her, under the influence of liquor, as she does not have any children. It is further stated that in the month of Vaishakh, Hansa had come home to the house of the complainant due to the torture inflicted by the respondent. Thereafter, her sister-in-law (Jethani) had come to take her back. It is further stated that as Hansa could not bear the harassment and torture inflicted upon her by the respondent, she committed suicide by jumping into a Well. The complainant further states that the fact that the respondent used to harass Hansa was known to both her elder sons and their wives. The complainant further adds that the first wife of the respondent had committed suicide by burning herself, which fact came to her knowledge after Hansa s marriage. The complainant further states that the reason for the suicide of the deceased was that during the four years span of marriage, she was unable to bear children and the respondent used to beat and harass her after consuming liquor.
Upon registration of the compliant, the investigative machinery swung into motion. The statements of witnesses were recorded. An inquest was held on the dead body of the deceased, which was then sent for autopsy. The Panchnama of the scene of offence (Ex.24) was prepared. At the end of the investigation, as sufficient incriminating evidence was found against the respondent, he came to be chargesheeted before the Judicial Magistrate, Una. As the offence under Section 306 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court at Junagadh (hereinafter referred to as the Trial Court ), where it was registered as Sessions Case No.12 of 1994. The Trial Court framed the charge against the respondent at Ex.1. It was read over and explained to the accused, who denied his guilt and claimed to be tried. Accordingly, the case was put to trial. In order to bring home the guilt of the accused, the prosecution examined as many as nine witnesses and produced documentary evidence. After the recording of the evidence of the prosecution witnesses was over, the Trial Court explained to the accused, the statements appearing against him in the evidence of the prosecution witnesses and recorded his statement under Section 313 of the Code of Criminal Procedure, 1973. The defence of the accused was that of denial. After appreciating and evaluating the evidence on record, the Trial Court recorded a finding of acquittal, having come to the conclusion that there was no evidence on record to prove that the deceased committed suicide as a result of the cruel treatment meted out to her by the accused, giving rise to the filing of the present appeal.
Mr.H.K.Patel, learned Additional Public Prosecutor, has submitted that the evidence on record, especially, the depositions of PW-2-complainant and mother of the deceased, PW-3, brother of the deceased, and PW-4, sister-in-law (Bhabhi) of the deceased, clearly indicate that the deceased was treated with cruelty by the respondent as she was unable to bear children. It is further submitted that the evidence of the above prosecution witnesses finds corroboration from the evidence of PW-5, Panch witness of the scene of offence, PW-6, cousin brother of the deceased, and PW-7, uncle of the deceased, to whom the deceased had confided regarding the cruelty and harassment inflicted upon her by the respondent. Learned Additional Public Prosecutor has further submitted that the Trial Court has not appreciated the evidence on record in a legal and proper manner. Had the same been done, it would not have been possible to record a finding of acquittal. It is further submitted that since the span of marriage of the deceased with respondent is just about four and a half years, a presumption under Section 113-A of the Evidence Act would arise. In this regard, it is submitted that the Trial Court has taken note of certain judgments cited by the defence, in which the span of marriage was over ten years therefore the ratio of those judgments would not be applicable to the present case.
On the above grounds, it is prayed that the impugned judgment and order rendered by the Trial Court be quashed and set aside and the appeal, allowed.
This Court has heard learned Additional Public Prosecutor for the appellant for a considerable length of time and perused the Record and Proceedings of the case. The respondent has been served but has not chosen to appear before this Court.
In order examine whether the findings recorded by the Trial Court are legally tenable, it would be expedient to notice the salient features of the evidence that has come on record.
PW-1 is Dr.Vallabhdas Mohanlal Raninga, who has performed the post-mortem on the dead body of Hansa. His deposition is at Ex.11. The probable cause of death, as per the post-mortem report at Ex.15, is intra-cranial hemorrhage and injury to the vital organ brain. There does not appear to be any doubt regarding the fact that the deceased has died a suicidal death. The injuries sustained by her, as described in the post-mortem report, appear to be the result of her falling into the Well.
PW-2, Shantaben Vijgarbhai, is the complainant and mother of the deceased, who has been examined at Ex.17. She states that her daughter Hansa was married about five years before the incident. Two days before her death, Hansa and the respondent had come to her house. The respondent had stated that he was going to Okha for the business of fishing and Hansa would stay with the complainant. After the respondent left, Hansa decided to go to the matrimonial house, as her grandmother-in-law had passed away. The complainant told her son Mahadevpari to go to the bus stand and see whether Hansa had joined the respondent there. Mahadevpari went to the bus stand and upon his return, informed the complainant that Hansa had met the respondent at the bus stand. According to the complainant, the next morning, a thought arose in her mind whether Hansa had gone with her husband to Okha, or had gone to Delvada. She thought that she should personally inquire, therefore, she went to Delvada. She found the house of the deceased locked from outside. The complainant sat down to wait for Hansa and waited there till 3:00 o clock. Thereafter, the complainant sent a boy to make inquiries at the house of Hansa s in-laws, after which Nimuben, sister-in-law (Jethani) of the deceased, came and told the complainant that Hansa had gone to wash clothes and she had come to take the complainant to her house. Thereafter, the complainant returned to Sanakhada in a rickshaw. The complainant further deposes that Hansa used to frequently visit the house of the complainant after her wedding and used to complain that, as she had no children, the respondent used to beat and harass her. According to the complainant, the deceased had disclosed this to both the elder sons of the complainant and their wives. The deceased and the respondent had gone to live separately from the joint family. The deceased had come to her house in the month of Chaitra as she could not bear the harassment meted out to her by the respondent and had stayed there for a month. Thereafter, Hansa s brother-in-law and sister-in-law (Jeth-Jethani) had come to take her back. The complainant further states that as the deceased did not have any children, the respondent used to beat and harass her which was the cause of her suicide.
In her cross-examination, the complainant states that she had heard that the first wife of the respondent had also committed suicide by burning. She further states that before Hansa was married to the respondent, there had been an engagement. After the marriage, the deceased and the respondent lived with the parents of the respondent but for the past four years, they were living separately. This witness further states that two days before the incident, Hansa and the respondent had come to her house at about 12:00 o clock and had taken their meals there. At about 3:00 o clock, the respondent had left for Okha and her daughter had gone to Delvada. This witness reiterates that Hansa used to face torture and harassment at the hands of the respondent, who was in the habit of consuming liquor, for the reason that she did not have children. She denies the suggestion that Hansa was short-tempered.
PW-3, Bhanpari Shankarpari, is the brother of the deceased, who has been examined at Ex.19. He states that three days before the incident, the deceased and the respondent had come to their house. The respondent said that he was leaving for Okha for fishing business and he left at about 3:00 o clock. After he left, the deceased said that her grandmother-in-law had died and she was going to Delvada. He repeats the version of the complainant regarding Maheshpari s going to the bus stand in order to ascertain that the deceased and respondent had met there and the suspicion nurtured by the complainant whether the deceased had gone to Okha or to Delvada. He states that the complainant went to Delvada the next day and returned at about 7:00 pm saying that Hansa was not found at Delvada. Thereafter, a rickshaw came from Delvada and they were informed that the dead body of Hansa had been taken out from a Well. This witness reiterates that Hansa did not have children, which became the cause of cruelty and ill-treatment by the respondent. This witness further states that the first wife of the respondent had committed suicide by burning. He states that before Hansa was married to the respondent, there had been an engagement and it is only after due inquiries were made, that Hansa was engaged to the respondent. This witness states that Hansa used to come to Sanakhada frequently and sometimes the respondent used to accompany her. He states that quarrels used to take place and ill-treatment was meted out to the deceased by the respondent.
In cross-examination, this witness states that he has stated in his statement before the police that his sister has committed suicide as she was short-tempered, but this was said when he was in shock due to her death. He further states that as he was shocked to see the dead body of his sister, he may have stated so, but it is not true.
PW-4 is Rasilaben Shantigiri, sister-in-law (Bhabhi) of the deceased. She has been examined at Ex.20. This witness more or less reiterates the versions of PW-2 and PW-3 regarding ill-treatment to the deceased by the respondent for the reason that the deceased had no children. This witness claims that the deceased had confided in her regarding the same. She further states that the respondent habitually consumed liquor and beat the deceased, which has led to her suicide. She denies the suggestion that Hansa was short-tempered.
PW-5, Kishan Masri is one of the Panch witnesses of the Panchnama of the scene of offence. He has been examined at Ex.23. He describes the Well from which Hansa s body was taken out. He states that near the Well, there was an iron bucket, in which there were three clothes. Next to the bucket, there was a pair of slippers.
In the Panchnama of the scene of offence at Ex.24, it is noted that there was an iron bucket near the Well in which there was a torn white blouse, a red petticoat and an old and torn coffee-coloured underwear. The clothes were wet. Next to the bucket, there was a pair of slippers. Nimuben, the sister-in-law of the deceased (Jethani), identified the clothes, bucket and slippers as belonging to the deceased.
PW-6 is Jerampari Amrutpari, the nephew of the complainant and cousin brother of the deceased. He states that about two to three years ago, his aunt, the complainant, had told him that the respondent beats Hansa and inflicts torture upon her. He states that the deceased had come to the house of the complainant in the month of Vaishakh but he does not know the reason for her coming. He states that the deceased stayed for two to three days after which her brother-in-law and sister-in-law (Jeth-Jethani) came to take her back.
In cross-examination, this witness states that the complainant, had told him three years ago that the deceased was facing harassment and torture at the hands of the respondent. He denies that the deceased had a short temper.
The testimony of this witness makes it clear that all that he is stating is hearsay evidence and he has no personal knowledge regarding the harassment meted out to the deceased.
PW-7 is Parsottampari Naranpari, uncle of the deceased, who has been examined at Ex.26. This witness claims that Hansa had told him that the respondent beats and harasses her after consuming liquor. This witness states that he had told the deceased that joy and sorrow come and go in life and he would talk to her brother-in-law and sister-in-law. He further states that the fact that the deceased did not have children was the cause for the harassment and beatings given to her by the respondent and it is due to this ill-treatment that the deceased has committed suicide.
The Investigating Officer, Ganeshsinh Subedarsinh Raghuvanshi, has been examined as PW-8, at Ex.28. In the examination-in-chief, this witness gives the formal details of the investigation carried out by him. In cross-examination, this witness states that he took the statements of Lakshmiben, Maniben Bhikha, and Binaben Uka, who are the neighbours of the respondent in Delvada. From the statements recorded by him, it transpired that Hansa did not face any cruelty or ill-treatment from the respondent or her in-laws. This appears to be the reason why the neighbours of the deceased, who could have been independent witnesses, have not been examined.
It appears that the Investigating Officer has produced only interested witnesses to depose before the Court, with a view to lend more weight to the case of the prosecution. Independent witnesses such as the neighbours of the respondent appear to have been ignored deliberately, as examining them may have led to the erosion of the prosecution case. The statements recorded by this witness are to the effect that the deceased did not face any harassment or cruelty from the respondent or other members of his family. From this, it can be said that the manner in which the investigation has been carried out does not inspire much confidence.
On the basis of the above evidence, the Trial Court has come to the conclusion that there is no material on record to indicate that the deceased was subjected to cruelty by the respondent for not having children, leading her to commit suicide. The Trial Court has further come to the conclusion that on the facts and in the circumstances of the case, the presumption under Section 113-A of the Evidence Act regarding abetment to commit suicide, would not arise.
Having independently appreciated and evaluated the evidence on record, it appears to this Court that the prosecution has deliberately withheld independent witnesses who could have deposed before the Court regarding the aspect whether the deceased was subjected to cruelty and ill-treatment. These independent witnesses were the neighbours of the deceased whose statements were taken by the police earlier, but who have not been brought before the Court for the sole reason that they have stated before the police that the deceased was not subjected to any ill-treatment or cruelty. This is stated by the Investigating Officer himself, in his cross-examination. The prosecution witnesses are close relatives of the deceased. Though their evidence may not be disregarded only on this ground, however, when it emerges that independent witnesses have been ignored even though available, who have stated that there was no cruelty or harassment to the deceased, the evidence of the interested witnesses, such as the complainant, PW-3, brother of the deceased, and PW-4, sister-in-law of the deceased (Bhabhi), PW-6, brother of the deceased and PW-7, uncle of the deceased, has to be scrutinised with utmost care and caution. No specific instance of cruelty, ill-treatment or harassment allegedly inflicted by the respondent upon the deceased has been narrated by the prosecution witnesses. It has come in their evidence that the deceased used to visit the home of the complainant frequently and sometimes, the respondent used to accompany her. It does not appear that any incident of harassment or ill-treatment has been witnessed by any of the prosecution witnesses during those visits. It is curious that two days prior to the incident when Hansa and the respondent had come to the house of the complainant, after the respondent left for Okha, Hansa suddenly stated that she has to go to Delvada, as her grandmother-in-law had died. Had that been the situation, she could have stated so in the presence of the respondent. After she left, the complainant is stated to have sent her son Maheshpari, to check whether the deceased and the respondent met at the bus stand. Maheshpari has not been examined. It is all the more curious that the complainant thought it necessary to ascertain whether the deceased had gone to Okha with the respondent or to Delvada and she went to Delvada for this purpose. If the deceased had met the respondent at the bus stand as stated by Maheshpari to the complainant, there was no reason for the complainant to worry. Further, the complainant stayed in Delvada the whole day, purportedly waiting for the deceased who had gone to wash clothes. Had the complainant wanted to meet the deceased, she could have gone to the place where she had gone to wash clothes. She did not do so. The next day, the complainant states that she received news that the body of the deceased had been found from a Well. It has been stated by PW-5, Panch witness of the Panchnama of the scene of offence and in the Panchnama at Ex.24, that an iron bucket containing three clothes and a pair of slippers were found near the Well, which Nimuben, the sister-in-law of the deceased had identified as belonging to the deceased. It is not understandable how it would be possible for the deceased jump into the Well without being seen. She had gone there in the afternoon, to wash clothes. Normally, other women from the village would also be around at that time. There are several unanswered questions emerging from the lacunae in the investigation, in the present case. However, insofar as the Charge under Section 498A of the Indian Penal Code is concerned, the prosecution has failed to produce any credible or trustworthy evidence to establish that the respondent inflicted cruelty upon the deceased in order to drive her to commit suicide. Similarly, the Charge under Section 306 of the Indian Penal Code has also not been proved as there is no evidence of any instigation, goading or persuasion on the part of the respondent to the deceased, driving her to commit suicide.
For the aforestated reasons, in the ultimate analysis, the appeal must fail. The finding of acquittal arrived at by the Trial Court is neither improbable, perverse or unreasonable, but is based upon a proper appreciation of the evidence on record. This Court is in agreement with the finding of acquittal recorded by the Trial Court.
The appeal, therefore, stands dismissed.
(SMT. ABHILASHA KUMARI, J.) sunil Page 24 of 24