Gujarat High Court
Thakor Bhikhaji Chhaganji vs State Of ... on 29 August, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/677/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 677 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
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THAKOR BHIKHAJI CHHAGANJI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR. YOGENDRA THAKORE, ADVOCATE for the Appellant(s) No. 1
MS REETA CHANDARANA, APP for the Opponent(s)/Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/08/2016
ORAL JUDGMENT
1. Present appeal assails the judgment and order dated Page 1 of 14 HC-NIC Page 1 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT 17/05/2011, passed by the learned Sessions Judge, Patan, in Sessions Case No. 5 of 2009, whereby, while acquitting the original accused Nos. 2 and 3 from all the charges and the present appellant - original accused No. 1 from the charge of offence punishable under Section 323, 306 r/w. 114 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the appellant - original accused No. 1 came to be convicted for the offence punishable under Section 498A of the IPC and sentenced to undergo rigorous imprisonment (RI) for two years and a fine of Rs.1,000/ and in default of payment of fine, to undergo further simple imprisonment (SI) for fifteen days. He was given benefit of set off. For the sake of convenience, the parties are hereinafter referred to as per their original status.
2. Brief facts of the prosecution case are that prior to about three years of 23/09/2008, marriage of the accused No. 1 and deceased Ramilaben was solemnized. The original accused Nos. 2 and 3 were the parents inlaws of the deceased. It was alleged that, after the marriage, all the accused, in aid and abetment of each other, used to taunting the deceased as to she had not brought anything from her parents and she was asked to bring Rs.2,000/, which were though given, the accused did not rest Page 2 of 14 HC-NIC Page 2 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT and continued to taunting and physically and mentally harassing the deceased. Prior to the incident in question also, the deceased was expelled from the house after beating, asking her to bring Rs.5,000/ from her parents for running a panbidi galla, which led the deceased to commit suicide by strangulation. Thus, the accused committed the offence alleged against them for which, a complaint for the offences punishable under sections 498A, 306 r/w. 114, 323 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court. The trial Court framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the original accused, the prosecution has examined as many as 11 witnesses and produced following documentary evidence. 2.2 At the end of the trial, Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, Page 3 of 14 HC-NIC Page 3 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT 'the Code') were recorded in which they denied the evidence forthcoming on the record and stated that a false case has been filed against them. Thus, after recording abovereferred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeal by the accused No. 1.
3. Heard Mr. Yogendra Thakore, the learned advocate for the appellant - original accused No. 1 and Ms. Reeta Chandarana, the learned Additional Public Prosecutor, for the respondent State.
3.1 The learned advocate for the appellant herein - original accused No. 1 contended that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence for which the accused is convicted and sentenced and thereby, the learned trial Judge has erred in coming to such a conclusion. He took this Court through the oral as well as the Page 4 of 14 HC-NIC Page 4 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT entire documentary evidence on record and submitted that the deceased was suffering from the disease of thyroid and due to the said problem, there were complications in conceiving and therefore, she was living a stressed life. The learned advocate for the accused No. 1 also took this Court to the medical papers and submitted that the learned trial Judge has erred in holding that the appellant had failed in performing his matrimonial obligations and hence, the offence punishable under Section 498 A of the IPC is proved. Further, he submitted that considering the evidence on record, there appears nothing on record to show any specific evidence as to cruelty and harassment were being afforded to the deceased. He further submitted that in other offences, which were charged against the accused, have not been proved and the appellant is acquitted of the same, however, without considering the evidence on record in their true and proper perspective, he was convicted and sentenced for the offence punishable under Section 498A of the IPC and hence, interference of this Court is required more particularly, when the prosecution has failed to prove the said offence beyond reasonable doubt against the present appellant. Making above submissions, the learned advocate for the accused requested to allow the present appeal as no ingredients of the said offence Page 5 of 14 HC-NIC Page 5 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT have been proved, setting aside the impugned judgment and order.
4. Per contra, Ms. Chandarana, the learned Additional Public Prosecutor for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. She took the Court through the relevant oral as well as documentary evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order and submitted that the prosecution has successfully proved its case against the appellant and the learned trial Judge has committed no error in convicting the accused after duly evaluating and appreciating the evidence on record, and considering the gravity of the offence, she requested that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeal confirming the impugned judgment Page 6 of 14 HC-NIC Page 6 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT and order.
5. I have considered the abovereferred rival submissions made by the learned advocates for the parties and also gone through the evidence on record and reappreciated and reevaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court.
5.1 As referred herein above, the charge was framed against the accused for the offence punishable under Sections 306 and 498A of the IPC amongst others and the main allegation made against the accused was, they were taunting the deceased during the marriage life and she had not brought anything from her parental home and also demanded Rs.2,000/, to be brought from her parental home, which were, as such, provided by the parents of the deceased. It was also alleged that before the deceased had committed the suicide by strangulation, she was driven out of the home after beating, demanding Rs.5,000/ for panbidi galla and accordingly, on 21/09/2008 she had committed suicide by strangulation in the night hours in the kitchen due to such cruelty. After considering the entire evidence forthcoming on record, the learned trial Judge Page 7 of 14 HC-NIC Page 7 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT acquitted the appellant - accused for the offence punishable under Section 306 of the IPC and the reasonings given by the learned trial Judge in the impugned judgment and order in para 32 read as under:
"On going through the evidence on record, firstly Rs.2,000/ and thereafter, before 45 days of 22/09/2008, Rs.5,000/ had been demanded, asking her that they would not allow her to stay if she would not bring the same. In the circumstances, as per definition of Section 107, the intentional action of the accused and the ingredients of the offence of demand of money, which created the circumstance for committing the suicide, should be proved beyond reasonable doubt. Under the circumstances, as per Section 306 r/w. 107 and Section 113(A) of the IPC, the deceased had no progeny during the three years of marriage span and considering the medical bills and prescriptions produced with further statement, she was suffering from disease of thyroid and taking into consideration the said circumstances and the oral evidence of the husband of the deceased and the brothers, it has not been proved beyond reasonable doubt that there was continues demand of money for which she was Page 8 of 14 HC-NIC Page 8 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT given physical and mental torture and hence, there is no question of presumption. In these circumstances, on appreciation the evidence on record, there appears nothing on record to show that the deceased was having any fear of life and/or any circumstances, which led her to commit suicide and accordingly, offence punishable under Section 306 of the IPC is not proved."
5.2 Now, so far as offence punishable under Section 323 of the IPC is concerned, it is observed by the learned trial Judge in para 34 that, 'Further in the Despatch Note, exh. 37, produced vide list, exh. 14, based on Report under Section 174 of the CrPC, it is specifically mentioned that on 21/09/2008 since the husband of the deceased had come home late, they had exchange of words and quarrel, due to which, deceased had become sentimental and committed suicide by strangulation in the kitchen, whereas, the facts of the complaint reveals the demand of money and there are some implied allegations of beating. In the Despatch Note at exh. 37, there is no mention as to exchange of words with the accused No. 1 so also as to beating. In the circumstance, the prosecution has failed to prove the charge against the accused for the offence punishable under Page 9 of 14 HC-NIC Page 9 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT Section 323 of the IPC'.
5.3 Now, so far as offence punishable under Section 498A of the IPC is concerned, the trial Court has come to the conclusion that when the deceased had committed suicide in the kitchen in presence of the accused No. 1, at that point of time, it was his duty to take extra care, more particularly, when the deceased could not conceive and she was suffering with the disease of thyroid. Moreover, the trial Court has also come to the conclusion that considering the financial condition of the accused, the amounts of Rs.2,000/ and Rs.5,000/ for which, cruelty was given, was a big amount for them. In light of this observations made by the trial Court, if the Further Statement of the accused under Section 313 of the Code is perused, the defence taken by the appellant herein is as under:
"I am innocent. Our marriage life was going good. My wife was suffering from the disease of thyroid and hence, she was not able to conceive and her treatment was going on but my wife, Ramilaben, was very much anxious and living stressed life. I was persuading her that since the treatment is going Page 10 of 14 HC-NIC Page 10 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT on, they would get the result and even then if they did not have child, there is nothing to worry. However, Ramila always was staying pondering over it and due to such over thinking, she has taken such a step of suicide. Her family members were also knowing about her treatment, however, knowingly, out of excitement, a false complaint has been lodged against him and he is innocent."
5.4 Moreover, it is pertinent to note that along with this Further Statement, the accused has also produced the original medical case papers as well as the receipts issued by the medical store for purchase of the medicines etc. and in all, a file containing 17 pages was produced by the appellant before the trial Court. I have carefully gone through the said medical papers. Referring the said papers, it is clear that for the problem of thyroid, she was taken to the doctor, who had prescribed the medicine for the said disease and for purchase of the said medicine, receipt is also produced on record. Moreover, referring the aforesaid medical papers, it also appears that as the deceased could not conceive, different maternity homes and gyneacologists had been consulted and various pathology reports have also come on record. The Page 11 of 14 HC-NIC Page 11 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT details of medical bills submitted with the aforesaid Further Statement are as under:
Sr. Bill No. Date Amt. Particular Name of
No. Hospital/
Doctor
1 OPD/10230 02/06/2008 60/ OPD Case Patan
Janta
Hospital
2 GEN/9598 02/06/2008 280/ Medicines do
3 1/15802 03/062/008 205/ Medicines Patan
Janta
Medical
Stores
4 1/19981 18/06/2008 93/ Mediciane do
s
5 OPD/16324 09/07/2008 30/ OPD Case do
6 1/25464 09/07/2008 103/ Medicines do
7 1/26949 16/07/2008 65/ Medicines do
8 G2013 18/08/2008 220/ Sonograp Dr.
hy Vyomesh
M. Shah
9 2052 20/08/2008 129/ Medicines Dhvani
Medical
Stores
1,185/
5.5 Thus, it appears that the care which was required to be taken by the husband, the appellant herein - accused No. 1 appears to have been taken by him and in my view, the entire defence which was required to be considered and discussed, appears to Page 12 of 14 HC-NIC Page 12 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT have not been considered and appreciated by the learned Court below and I am of the opinion that the conclusion arrived by the learned trial Judge appears to be without any basis and considering all the aspects of the matter in entirety, I am of the view that the learned trial Judge has committed a grave error in convicting the appellant accused No. 1 for the offence punishable under Section 498A of the IPC as the prosecution has failed to prove the same beyond reasonable doubt. Moreover, the learned Additional Public Prosecutor is not in a position to take otherwise view of the matter by showing any substantial and cogent evidence. Accordingly, the present appeal deserves to be allowed and the impugned judgment and order is required to be set aside.
6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 17/05/2011, passed by the learned Sessions Judge, Patan, in Sessions Case No. 5 of 2009, is hereby set aside and the appellant - original accused No. 1 is acquitted of the charge for which he is convicted and sentenced. The appellant accused No. 1 is reported to be on bail and accordingly, he needs not to surrender to custody except he requires so in any other case and his bail bond shall Page 13 of 14 HC-NIC Page 13 of 14 Created On Tue Aug 30 08:01:44 IST 2016 R/CR.A/677/2011 JUDGMENT stand cancelled. Registry to return the R&P to the trial Court forthwith.
[ G. B. Shah, J. ] hiren Page 14 of 14 HC-NIC Page 14 of 14 Created On Tue Aug 30 08:01:44 IST 2016