Gujarat High Court
Mangaldas Babbhai Darji & 3 vs State Of ... on 30 January, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/843/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 843 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any order made thereunder ?
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MANGALDAS BABBHAI DARJI & 3....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
ABATED for the Appellant(s) No. 1 , 3
MR DAKSHESH MEHTA, ADVOCATE for the Appellant(s) No. 2 , 4
MR. N.J.SHAH, APP, for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 30/01/2017
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellants-original accused, under Section 374 of the Cr. P.C., against the Judgment and order dated 17.10.2001 rendered by Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT the learned Additional Sessions Judge, Court No.17, Ahmedabad City in Sessions Case No.03 of 2000, whereby the appellants-accused were convicted for the offence punishable under Section 498A of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment with fine of Rs.500/-, in default of payment of fine, further simple imprisonment of one month, for the offence punishable under Section 306 of the IPC and sentenced to undergo three years rigorous imprisonment with fine of Rs.1000/-, in default of payment of fine, further rigorous imprisonment of three months.
[2] It is the case of the prosecution in nut-shell that deceased-Hemlataben married to appellant-accused No.2 on 24.02.1997. Appellant Nos.1, 3 and 4 are father-in-law, mother-in-law and brother-in-law of the deceased respectively. After the marriage, the deceased was living at her in-laws house at village Dholapur. Thereafter, they shifted to Odav, Ahmedabad, where in-laws started giving torture to deceased. The in-laws of the deceased told the deceased to convey her father regarding the marriage proposal between her sister Hansa to appellant No.4 i.e. brother-in-law of the deceased. The deceased informed this fact to her father, but he denied. The deceased wanted to live separately and her in-laws demanded money from her to construct the house. Brother-in- law of the deceased also pressurized the deceased to merry her sister with him. The deceased was beaten by respondent. Thereafter, on 25.11.1998, the deceased committed suicide by consuming poison. Thereafter, she shifted to the hospital, where she declared death. Odhav Police informed regarding the death of the deceased. Inquest panchnma was drawn by Natwarlal Somabhai Rathod, Police Inspector. Thereafter, the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT complainant was lodged by the complainant-Kanubhai Karsanbhai. The case was registered and investigation was made. Panchnama of place of offence was drawn. Report of the FSL was obtained. Statement of the witnesses were recorded.
[3] Thereafter, accused were arrested and after collecting the evidence by the Investigating Agency, charge-sheet was filed before the learned Judicial Magistrate First Class. As the said case was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate committed the case to learned Additional Sessions Judge, Court No.17, Ahmedabad.
[4] On the basis of above allegations, charge was framed against the appellants-accused vide Exh.1 and read-over and explained to the appellants-accused for the alleged offences and plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
[5] In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences.
[6] Thereafter, after filing closing pursis by the prosecution, further statement of the appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein the appellants have denied the case of the prosecution and have pleaded their innocence. The appellants have submitted that a false case is filed against them.
[7] After considering the oral as well as documentary
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evidence and after hearing the parties, learned Additional Sessions Judge, Court No.17, Ahmedabad City vide impugned judgment and order dated held the appellants-accused guilty to the charges levelled against them under Sections 498A and 306 of the Indian Penal Code, and convicted and sentenced the appellants-accused.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the Additional Sessions Judge, Court No.17, Ahmedabad City the present appellants-accused has preferred this appeal.
[9] Since Appellant Nos.1 and 3 died during the pendency of present appeal, present appeal qua them stands abated vide order dated 28.06.2016 passed by this Court in Criminal Misc. Application No.5425 of 2016.
[10] Heard Mr.Dakshesh Mehta, learned advocate for the appellants-accused, and Mr. N.J.Shah, learned Additional Public Prosecutor for the respondent-State.
[11] Mr.Dakshesh Mehta, learned advocate for the contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellants and has wrongly convicted the appellants. Learned Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT advocate for the appellants argued at length and contended that the judgment and order of the learned trial Judge is against the provisions of law and learned trial Judge has wrongly considered the evidence of the prosecution and wrongly convicted them for the alleged offences. Mr. Mehta read the charge as well as evidence of the witnesses and argued that it is admitted by the complainant that the proposal was made to father of the deceased with respect to marriage of her second daughter Hansa with the brother-in-law of the deceased. It is further admitted by the complainant that it is a custom prevailed in their family that if marriage of elder daughter proves to be healthy and sound, then only question of younger daughter can arise. The main cause of the quarrel between the deceased and husband is that the deceased wanted to live separately. Mother of the deceased admitted in her deposition that her daughter was of very sensitive nature. He then contended that even preconditions of Sections prosecution 107 and 108 of the Indian Penal Code are not attracted. The learned trial Judge ought to have considered the probable defence before convicting the appellants- accused. He then contended that husband got married with another lady and he has child aged about 10 years so also brother-in-law got married and he is also having a child. Therefore, he prayed that some lenient view is required to be taken against the appellants-accused by reducing the sentence to some extent. He then contended no independent witnesses are examined and only related witnesses are examined by the prosecution and no cogent evidence is produce on record. Lastly, he submitted that the learned trial Judge has wrongly convicted the appellants-accused for the alleged offence and therefor, he prayed to allow this appeal.
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[12] As against this, Mr.N.J.Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. She has contended that the prosecution has proved its case beyond reasonable doubt. She has contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with. Mr. Shah contended that the prosecution has examined Doctor Hasumati Ranchhodlal Pate at Exh.12. She stated that cause of death was due to consumption of poisonous medicine i.e. Aluminum Phosphate, which gets substantiated through P.M. note at Exh.13. The prosecution has also examined PW2 Kanubhai Karsanbhai Darji at Exh.14 and argued that as per his evidence, initially proposal was by appellants-accused to complainant marry his second daughter with brother-in-law of the deceased, which the complainant did not accept. From the evidence produced on record, it is established that the deceased was beaten by the husband appellant No.2 herein, which is admitted by the complainant. He then contended that the complainant used to advice the her daughter to live with her-laws. He contended that the appellants-accused also demanded money to construct the house. The prosecution has examined mother of the deceased PW3 Shantaben Kanubhai Darji at Exh.16, who also supported the case of the prosecution. Mr. Shah read the evidence of panch witness Jalabhai Jivabhai Desai, who drawn the panchanma of offence. In his cross-examination, he deposed that he is a neighbour and most of the time he remains present at the house and he heard the shouting between the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT deceased and husband while quarreling with each on the issue to live separately. He then contended that circumstantial evidence is in favour of the prosecution (FSL Report) and therefore, the learned trial Judge has rightly convicted the appellants-accused. Mr. Shah contended that marriage span of the deceases was only one year and nine months. He further contended that as per the provision of Section 113(A) of the Evidence Act, the appellants could not establish their proper defence to rebut the presumption. He then contended that when instigation, provocation and abetment is established against the appellants-accused and cruelty is proved beyond reasonable doubt, learned trial Judge has rightly convicted the appellants-accused and therefore, he prayed to dismiss this appeal.
[13] I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellants.
[14] Looking to the facts of the present case, initially the appellants-accused made proposal to the complainant to marry her second daughter with brother-in-law of the deceased i.e. the appellant No.4 herein, however, the said proposal was rejected by the complainant. The defence could not establish its defence to come out from main ingredient of Sections 107 and 108 read with Section 114 of the IPC. It is admitted by the complainant in cross-examination that the deceased was beaten by the appellant No.2-husband. Panch witness Mr. Jalabhai Jivabhai Desai also stated in his cross-examination Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT that he heard the shouting between the deceased and husband while quarreling with each on the issue to live separately and it was admitted by him that the deceased was beaten by the husband. Therefore, in present case main ingredient of Section 498A of the IPC is attracted. When main ingredient of Section 498A is attracted, then provision of Sections 107 and 108 read with Section 114 of the IPC can be considered to prove instigation, provocation and abetment through oral and documentary evidence of the prosecution case. From overall, it is established that due to cruelty meted out by the appellants to deceased, she has committed suicide by consuming position. As per the provisions of Section 113(A) of the Evidence Act, the appellants-accused could not rebut the presumption.
[15] I am, therefore, of the opinion that the learned trial Judge has not committed any error in holding the appellants- accused guilty for the offences alleged against them and sentence awarded them is proper and therefore, no interference is required to be called for and, therefore, I am of the opinion that present Criminal Appeal requires to be dismissed.
[16] Learned advocate for the appellants prayed to show some leniency towards the appellants by reducing the sentence. In present case, marriage life is only one year and nine months and within such short span of marriage life, the deceased has committed suicide. Therefore, request made by the learned advocate to reduce the sentence, cannot be acceded to.
[17] For the reasons recorded in the judgment pronounced Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Aug 13 04:27:11 IST 2017 R/CR.A/843/2001 JUDGMENT today in Criminal Appeal No.843 of 2001, the appeal is dismissed. The judgment and order dated 17.10.2001 rendered by the learned Additional Sessions Judge, Court No.17, Ahmedabad City in Sessions Case No.03 of 2000 is hereby confirmed. R & P to be transmitted to the trial Court. The bail bond of the appellant-accused who is on bail, shall stand cancelled and he is directed to surrender within four weeks from today.
(Z.K.SAIYED, J.) siddharth Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Aug 13 04:27:11 IST 2017