Gujarat High Court
State Of Gujarat vs Hiriji Jethabhai on 20 May, 2025
NEUTRAL CITATION
R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 905 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
HIRIJI JETHABHAI & ORS.
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Appearance:
MR. KRUTIK PARIKH, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1,2
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 3,4,5
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No. 3,4,5
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
Date : 20/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) [1.] The present appeal is filed at the instance of the State under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 18.01.1996 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No.36 of Page 1 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined 1995. By the said impugned judgment and order, the learned Sessions Judge has recorded acquittal of the present respondents-original accused for the offence alleged under Sections 304 (B), 498(A), 302 and 201 read with Section 34 of the Indian Penal Code as well as Sections 3 and 7 of the Dowry Prohibition Act, 1961. [2.] The complaint came to be lodged on 16.11.1994 by Circle Police Inspector, Junagadh- Mr. D.K. Ravalia against the present respondents- original accused, inter alia, informing that on 21.01.1994 at around 10:45 hours, the present respondent no.5, who was admitted in the Junagadh Hospital, had disclosed in his statement recorded by the Police Head Constable, that on the fateful day in early morning hours, the informant and his wife- Prabhaben had started to reach the river side for loading sand in their Bullock Cart, while they had reached near S.R.P. Training School at around 6:30 hours, one truck driver in rash and negligent manner, had hit their Bullock Cart from behind. As a result of the impact of the truck, the informant and his wife were thrown away from the bridge across the river. The informant as well as his wife had sustained serious injuries. The informant had, thereafter, left the place of the accident to reach the house of the witness- Girdharbhai Popatbhai, which was at a distance of half kilometer away from the place of the accident. With the help of Page 2 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined the said witnesses- Girdharbhai and Nilesh Chhagan, the informant had reached the hospital. In his statement recorded before the Police Officer, which was recorded at around 10:00 hours in the morning, he had disclosed about the aforesaid accident and had stated that his wife is also injured in the said accident and is lying in the bank of river along with the Bullock Cart . Pursuant to the aforesaid information being received, the concerned Police Head Constable had reported to the Junagadh Taluka Police Station. Prior to death, the doctor namely Dr. Arjun Gorabhai Rathod attached with the Civil Hospital had reported to the Junagadh Taluka Police Station at around 7:30 hours about the informant being admitted in the hospital, which has been recorded in the Station Diary (Exh.69) of the concerned Police Station on 21.01.1994 at around 7:30 hours vide Entry No.3. [2.1] Upon disclosure of the aforesaid information, the complaint was registered vide I-C.R. No.23 of 1994 against the unknown person for the offence punishable under Sections 279, 337 and 338 of the Indian Penal Code as well as Sections 177 and 184 of the Motor Vehicle Act. A Station Diary entry in this regard was also maintained by the Junagadh Taluka Police Station vide Entry No.8 of 1994 (Exh.39) recorded at around 10:45 hours on 21.01.1994. Initially, the inquiry in this regard to the aforesaid complaint was undertaken Page 3 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined by the Police Head Constable- Mr. Ramnikbhai Dharmsinh Patel. From the record, it transpires that father of the deceased- Prabhaben had approached the higher Officers seeking investigation by the higher Officer with regard to his apprehension about her daughter being murdered by the said informant. The Superintendent of Police, Junagadh, vide order dated 25.04.1994, had handed over the investigation to Circle Police Inspector Shri. M.G. Dhadhal. Subsequently, original complainant namely Shri. D.K. Ravalia having been taken charge as Circle Police Inspector, Junagadh, had continued with the investigation of the aforesaid accidental case. [2.2] During the course of the investigation, having recorded the statement of the father of the deceased namely Hakabhai Laghabhai on 12.10.1994 as well as the statement of the witness Dr. Parshuram Ramkrshna Agrawat, Medical Officer, associated with the Primary Health Centre, Vadalvala recorded on 12.10.1994, who had opined that the injury sustained by the deceased on the head is possible due to the assault with a heavy weapon, and having examined the aforesaid submissions in light of the panchnama carried out by the Investigating Officer with regard to place of accident, had proceeded to lodge the complaint on 16.11.1994 against the respondents- original accused for the offence alleged under Sections 302, 498(2), Page 4 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined 201 read with Section 34 of the Indian Penal Code. The said complaint was registered on 16.11.1994 with Jetpur Police Station, Junagadh being I-C.R. No.336 of 1994 as well as Sections 3 and 7 of the Dowry Prohibition Act, 1961. The investigation had culminated into filing of the charge-sheet against the respondents-accused for the offence alleged.
[2.3] The case was committed to the Court of learned Sessions Judge, Gondal at Rajkot under Section 209 of the Code of Criminal Procedure, 1973. The original accused had appeared before the learned Sessions Judge and the accused had pleaded not guilty. The learned Judge had proceeded with the trial. The charge was framed against the respondents- original accused for the offence punishable under Section 304(B) of the I.P.C., alternatively, for the offence punishable under Section 302 of the I.P.C. was also framed. The respondents- original accused were, thus, tried for the offence punishable under Sections 498(A), 304(B) as well as Sections 302 and 201 read with Section 34 of the Indian Penal Code as well as Sections 3 and 7 of the Dowry Prohibition Act, 1961. The prosecution in all has examined 33 witnesses and has also led various documentary evidences. The details of the evidences led by the prosecution are summarized as under:
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NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined ORAL EVIDENCE Sr. No. Particular Exh.1. Hakabhai Laghabhai 10 2. Ramjibhai Hakabhai 11 3. Shantaben Gokalbhai 12 4. Manjulaben Ghusabhai 13 5. Maganbhai Nathabhai 14 6. Ravjibhai Manjibhai 15 7. Karamshi Vashrambhai 16 8. Sureshkumar Bhikhabhai 17 9. Dhansukh Bavabhai 18 10. Bhupatbhai Vallabhbhai 19 11. Bhupendrakumar Mansukhlal 20
Ghabaliya 12. Najbhai Jivabhai 21 13. Bhupat Bachubhai 22 14. Dinesh Hirabhai 23 15. Prabhaben Shivshankar 24 16. Narmadaben Parshottambhai 25 17. Merabhai Ranchhod 26 18. Lakhubhai Rajabhai 27 19. Jagdishbhai Vrajlal 28 20. Girdharbhai Popatbhai 29 21. Jayantibhai Durlabhjibhai 30 22. Narsibhai Ambabhai 31 23. Dr. Parshuram Ramkrashna Agrawat 34 24. Girdharbhai Madhavjibhai Dobariya 36 25. Parbatsing Dalsukhbhai 37 26. Ramniklal Dharamsinhbhai 38 Page 6 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined 27. Dr. Arjun Gorabhai Rathod 42 28. Vijay Ambashankar Trivedi 44 29. Amilal Bhamaram Yadav 45 30. Bipinchandra Durgashankar 67 31. Devayat Khimabhai Ravaliya 70 32. Mansur Godadbhai Dhadhal 73 33. Balvantsinh Dhirubha Sarvaiya 74 Documentary Evidence Sr. No. Particular Exh.1. P.M. note of Prabhaben Shantilal 35
2. Extract of Entry no.8/94 dated 21st January, 39 1994 of Junagadh Taluka Police Station 3. Inquest panchnama 40 4. Panchnama of place of offence 41
5. Injury Certificate of Shantilal Hirabhai 43
6. Photographs 45 to 54
7. Negative of photographs 55 to 64 8. Original complaint 66 9. Extract of station diary dated 17th 68 November, 1994 of Jetpur Taluka Police Station
10. Extract of Entry no.3 of station diary dated 69 21st January, 1994 of Junagadh Taluka Police Station 11. Original complaint 71
12. Letter for investigation by Police Officer 72 13. Seizure panchnama of weapon used in the 75 offence 14. Seizure panchnama of vehicle 76 15. Local place survey report of Mobile FSL 77 16. Panchnama of place 78 Page 7 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined 17. Letter of receipt of Muddamal sent for 79 Analysis report to the FSL 18. Office copy of the forwarding letter 80 19. Report of Chemical Analyzer 81 20. Panchnama of local place 82 21. Closing purshis of the prosecution 83 [2.4] The prosecution has rest their case vide pursis filed at Exh.83. On the other hand, further statements of the respondents-
original accused have been recorded under Section 313 of the Code, who have denied the material brought on record by the prosecution. No other independent witnesses or any documentary evidences have been led by the original accused before the Trial Court. [2.5] The learned Judge, upon appreciation of overall evidence brought on record, in absence of any adequate evidence for the offence alleged against the respondents-accused, had recorded the acquittal of the present respondents. Hence, the present appeal at the instance of the State.
[3.] Looking to the grounds raised in the appeal and upon considering the submissions of learned Additional Public Prosecutor, this Court, vide order dated 16.06.1997, had admitted the appeal. The bailable warrants were issued upon the respondents-original accused, Page 8 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined which were reported to have been duly executed. However, pending this appeal, pursuant to the fresh bailable warrant being issued upon the respondents, it was reported that original accused no.1 - Hirji Jethabhai had expired on 03.05.2014 and original accused no.2 - Samjuben Hirjibhai had expired on 07.04.2017. Noticing the aforesaid report submitted by concerned learned Sessions Judge, this Court, vide order dated 28.06.2022, had held the appeal being abated qua the aforesaid deceased respondent nos.1 and 2. The matter was, thereafter, notified from time to time for final hearing qua rest of the surviving respondents.
[4.] We have heard learned Additional Public Prosecutor Mr. Krutik Parikh appearing for the appellant-State. Learned advocate Mr. P.B. Khandheria has entered his appearance on behalf of respondent nos.3 to 5.
[4.1] With the help of learned Additional Public Prosecutor, we have taken up this matter for final hearing during the special sitting of the Vacation Courts.
[5.] Learned Additional Public Prosecutor Mr. Krutik Parikh appearing for the appellant-State, at the outset, has assailed the Page 9 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined impugned order by inviting our attention to the findings and the reasons assigned by the learned Sessions Judge. Learned Additional Public Prosecutor has taken us through the evidences of the witnesses who are the family members of the deceased- Prabhaben including the evidence of the father/P.W. No.1-Hakabhai Laghabhai, P.W. No.2- Ramjibhai Hakabhai (the brother of the deceased), P.W. No.3- Shantaben Gokalbhai (the mother of the deceased) and P.W. No.4- Manjulaben Ghusabhai (the sister-in-law of the deceased). [5.1] While referring to their evidences, learned Additional Public Prosecutor has submitted that the learned Sessions Judge committed serious error in arriving at a conclusion that the prosecution has failed to lead adequate material to establish the offence punishable under Sections 304(B) and 498(A) of the I.P.C. According to learned Additional Public Prosecutor, on bare appreciation of the evidence of the aforesaid witnesses, it has clearly been established that the deceased was met with cruelty. According to learned Additional Public Prosecutor, even their evidence has been corroborated by the evidence of the independent witnesses. Our attention was invited to the evidences of the persons residing in the neighbourhood, whereby, it has transpired on record through their evidence that the deceased was met with cruelty. While reading the Page 10 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined evidence of P.W. No.15- Prabhaben and P.W. No.16-Narmadaben Parshottambhai, learned Additional Public Prosecutor has submitted that even for trivial issue, the deceased was mentally tortured at the hands of the family members of the husband of the deceased. While referring to their cross-examination, learned Additional Public Prosecutor has submitted that nothing contradictory has been brought on record, which dilutes the case of the prosecution with regard to cruelty being met to the deceased. He has further submitted that indisputably the marriage span of the deceased with respondent no.5 was less than 7 years. In such circumstances, the Trial Court ought to have raised presumption in light of Section 113(B) of the Evidence Act, to arrive at a conclusion that the case of dowry death has been proved by the prosecution. He has, therefore, submitted that the Trial Court committed serious error in recording acquittal of the respondents- original accused for the offence punishable under Sections 304(B) and 498(A) of the I.P.C.
[5.2] As regards the alternative charge being framed by the Trial Court for the offence alleged under Sections 302, 201 read with Section 34 of the I.P.C, learned Additional Public Prosecutor, at the outset, has invited our attention to the gist of the complaint lodged by the Investigating Officer himself i.e. Mr. D.K. Ravalia, the informant Page 11 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined of I-C.R. No.336 of 1994. He has further submitted that though initially the case of accidental death was reported; however, upon inquiry of the aforesaid case, it has emerged that the respondent no.5 had, in fact, murdered the deceased, and therefore, the complaint for the offence punishable under Sections 302 and 201 read with Section 34 of the I.P.C. was registered. During the course of the investigation, the statements of the related witnesses have been recorded by the Investigating Officer.
[5.3] Our attention was invited to the Post Mortem report produced on record at Exh.35. While referring to the injuries sustained by the deceased, learned Additional Public Prosecutor had pointed out that the deceased had sustained CLW injury which starts from the occipital bone and extends to right frontal bone as well as to middle part of the nose. Apart from the aforesaid external injuries, the internal injuries were also noticed, which includes the fracture of skull bone and the nostril bone. The nature of injuries as described in the P.M. Note mentioned it as depressed skull bone injury. He has also invited our attention to the fact that the deceased had sustained fracture in the Spine on arrival version torn base of the skull. The cause of death, as opined by the Medical Officer in the Post Mortem report, was due to hemorrhage.
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NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined [5.4] Learned Additional Public Prosecutor has further taken us through the evidence of the Medical Officer-Dr. Parshuram R. Agrawat, who has been examined at P.W. No.23 and in his evidence, he has clearly opined that the aforesaid injury was possible with the muddamal article Trikam shown to him during the trial. Thus, according to him, this was a clear case of homicidal death. As regards the involvement of the respondent no.5 in commission of the offence alleged under Section 302 is concerned, learned Additional Public Prosecutor had submitted that the conduct of the respondent no.5 is highly suspicious, more particularly, the manner in which the respondent no.5 at the very first instance, has failed to disclose the fact to the witness Girdharbhai Popatbhai about the wife having injured in the accident. He has invited our attention to the evidence of the said witness- Girdharbhai Popatbhai who has been examined as P. W. No.20, wherein, he has categorically mentioned the fact that he was not apprised about the deceased having sustained injury in the accident, at the instance of the respondents-accused. [5.5] Learned Additional Public Prosecutor has further invited our attention to the evidence of P.W. No.19-Jagdishbhai Vrajlal, who is the driver of the Tempo in which the respondent no.5 was taken to the hospital. Learned Additional Public Prosecutor, therefore, Page 13 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined emphasized on the aforesaid conduct of the respondent husband, as according to him, the natural human conduct in such circumstances, would be to inquire about the status of the injured wife as well, and to make arrangement to see to it that the wife is also extended the medical treatment immediately. He has further highlighted the fact that it was only when the respondent no.5 was inquired by the Police Officer, who had visited him when he was admitted in the hospital about the aforesaid fact that injured wife was lying by the river side, as she had also sustained serious injury in the accident. Learned APP has further emphasized on the provisions of Section 106 of the Evidence Act, and has submitted that the foundational facts with regard to the offence alleged under Section 302 of the I.P.C. have been established by the prosecution inasmuch as, the alleged weapon Trikam used in commission of offence has been discovered at the instance of the respondent no.5. While inviting our attention to the panchnama, learned APP has fairly submitted that the Panchas have turned hostile, however, they have not disputed their signatures on the panchnama. According to learned APP, the panchnama has been duly proved in terms of Section 27 of the Evidence Act through the evidence of the Investigating Officer. The reference was also made to the FSL report, wherein the presence of blood has been confirmed by the FSL on the aforesaid weapon. The reference was also made to the Page 14 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined deposition of the father and other family members, who have been examined by the prosecution, wherein, it has clearly been brought on record that prior to 15 days of the alleged incident, the deceased had stayed back at her parent's home for the period of four days and at that stage, the deceased had shared about ill treatment met to her by the respondents.
[5.6] According to learned APP, the family dispute prevailing highlights the motive, which led to commission of offence of murder at the hands of the respondent no.5-husband. According to him, the deceased being found lastly in the company of the respondent no.5, with this foundational facts being brought on record, it was for the respondent no.5 to explain the aforesaid adverse circumstances pointed out by the prosecution during the trial. However, on appreciation of further statement of the respondent-accused under Section 313 of the Code, except for vague denial, no explanation has been offered by the respondent-accused. He has, therefore, urged before us to consider the provisions of Section 106 of the Evidence Act in the exceptional circumstances of the case so as to bring home the charge of Sections 302, 201 read with Section 34 of the I.P.C., to convict the present respondent no.5. While highlighting the defence attempted to be brought on record by the respondent-original Page 15 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined accused, learned APP has submitted that it is highly improbable that in the midnight hours of 3 o' clock, the respondent no.5 along with the deceased had proceeded towards the river side to collect the sand for the purpose of installation of Gobar Gas Plant at their house. In this regard, the reference was made to the evidence of the witness- Lakhubhai Rajabhai (P.W. No.18), wherein the said witness has though submitted that the respondent no.5 had inquired about the installation of the Gobar Gas Plant; however, he had not filled up any form or had applied in this regard.
[5.7] Lastly, learned APP had referred to the photographs produced on record at (Exh.45 to Exh.54) as well as the place of panchnama of offence at Exh.41 and the panchnama of the Cart at Exh.76. By referring to the aforesaid documents, learned APP has submitted that theory of accident has not been established by the defence inasmuch as, no tyre marks have been noticed on the road. Apart from the aforesaid fact, no damage is caused to the bridge because of the accident alleged. He has further submitted that even the bullocks have not received any injuries. The bare appreciation of the photographs of place of offence suggests that upper part of the Cart was hanging over the bridge. He has, therefore, submitted that, in fact, a scene was created at the instance of the respondent no.5 to Page 16 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined project it as a case of accident. In absence of any explanation being offered by the respondent no.5 in his further statement, the Trial Court committed serious error in believing it as a case of accident and not as a case of murder. He has, therefore, urged this Court to quash and set aside the impugned judgment and order of acquittal and to convict the respondent nos.3 to 5 for the offence punishable under Sections 304(B), 498(A) of I.P.C. as well as Sections 3 and 7 of the Dowry Prohibition Act, 1961 or alternatively for the offence punishable under Sections 302 and 201 read with Section 34 of the I.P.C.
[6.] We have appreciated the aforesaid submissions of learned APP appearing for the appellant-State, in light of the evidence brought on record, forming part of the record and proceedings. [7.] At the outset, we would like to appreciate the case of the prosecution for the offence alleged under Sections 498(A) and 304(B) of the I.P.C. as well as Sections 3 and 7 of the Dowry Prohibition Act, 1961. As pointed out by learned APP, the foundational facts of the commission of the offence alleged under Section 498(A) of the I.P.C., the heavy burden lies upon the prosecution to prove the essential ingredient of cruelty. As rightly pointed out by learned APP, looking to Page 17 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined the definition of term of "cruelty" as born out from the explanation appended to Section 498(A) is not merely confined to the physical injury caused to the woman, it also includes the wellness of woman which may be in the form of mental or physical health. We have re- appreciated the evidence of the witnesses in this regard, more particularly, the evidence of father- Hakabhai Laghabhai (P.W. No.1), who in his examination-in-chief, has narrated that the deceased being met with the harassment at the hands of the respondent consistently all-throughout during the aforesaid marriage span of five year. His evidence mainly relates to the fact that the deceased every four or six months, had came back to the parental house and at one stage, she was also assaulted by her husband, whereby she had sustained fracture in her hand. It is further stated that the mother-in-law and the sister-in-law used to harass her. The reference is also made of intervention of the family members and their community leaders namely Lavabhai Mavani and Gordhanbhai, whereby, the daughter was sent back to her husband's house with assurance that she would not be harassed. Lastly, she had revisited the parent's house 15 days prior to the occurrence of the accident, having stayed back for 4 days, she voluntarily left to go back to her husband's family. In his cross- examination-in-chief, the father has categorically stated that he had never inquired from the deceased- Prabhaben about the reason for Page 18 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined which, she was harassed. In the cross-examination, the defence has also brought on record the contradictions, by referring to his two statements recorded by the Investigating Officer, the first being recorded on 27.01.1994 and followed by his second statement recorded on 27.02.1994. In his aforesaid statement, the defence has successfully brought on record the fact that the said witness has not mentioned before the Investigating Officer about dowry of Rs.20,000/- to Rs.25,000/- being given to their daughter. He has also admitted the fact that prior to aforesaid statement, no complaint in this regard has been lodged by him. He has also admitted the fact that the issue of custody of their grand daughter- Bhumita was initiated by them, for which, search warrant was applied for before the competent Court. He has also admitted that prior to the aforesaid application seeking search warrant being filed, the accused were not arrested. He has also admitted in his cross-examination that the representation, which was made to the higher Officer, was drafted with the aid of the advocate.
[8.] The further evaluation of the evidence of the brother of the deceased P.W. No.2-Ramjibhai Hakabhai, more or less, narrates the same instance as alleged by the father (P.W. No.1). The defence has contradicted the fact of demand of dowry being mentioned in his Page 19 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined statement recorded by the Police Officer on 21.01.1994. On close reading of the evidence of the aforesaid witnesses, we could notice that the allegation of harassment is mainly made against in-laws of the deceased.
[9.] On evaluation of evidence of mother of deceased- Shantaben Gokalbhai (P.W. No.3) suggests the intervention of the maternal uncle of deceased and Valabhai of village-Sankdi, whereby the deceased was sent back to her family. She has further deposed with regard to harassment being met to the deceased at the instance of the mother-in-law and sister-in-law on trivial issues of not handing over the soap for washing clothes, not giving adequate food to the deceased. Though, she has mentioned about the deceased being sent back to the family of the respondent with the dowry, there is no reference to the fact of dowry demand at the instance of the respondent-accused. We could notice that the allegations are mainly made against the mother-in-law and sister-in-law; however, she has not deposed against any dowry demand at the instance of the respondent no.5 husband or any harassment being met by the respondent-husband. She has also admitted in her cross-examination that she has not raised the issue of harassment prior to her deposition before the Court. The defence has also contradicted her deposition, Page 20 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined by referring to the statement of 03.05.1994, wherein she has not mentioned about the less dowry being brought by the father-in-law and mother-in-law.
[10.] On evaluation of the evidence of the Sister-in-law- Manjulaben Ghusabhai, who has been examined as P.W. No.4, more or less, she has deposed with regard to the fact of deceased used to come back to parents' house, however, no evidence has been brought on record through the said evidence about any demand of dowry being raised by the respondent-accused. Apart from aforesaid witnesses, the reference of the two independent witnesses as made by learned APP, what we could notice, is that the said witnesses have mainly deposed about harassment meted out by father-in-law, mother-in-law and sister-in-law, and there is no evidence being lead against the alleged harassment at the hands of respondent no.5- husband.
[11.] On overall appreciation of the evidence of aforesaid witnesses, we are of the view that the prosecution has miserably failed to bring on record the evidence of the demand of dowry being raised by the respondent-accused. At this stage, we would like to note that the charge was also framed for the offence punishable under Page 21 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined Section 304(B) of the I.P.C. In order to bring home the charge for offence punishable under Section 304(B) of the Code, the prosecution is under heavy burden to establish two important ingredients; firstly, the death of the deceased had occurred, otherwise under normal circumstances, within period of 7 years of the marriage. Secondly, that soon before the death, the deceased was subjected to cruelty or harassment by the accused in connection with any demand or dowry. [12.] Learned APP has emphasized on the fact that the cruelty may not be confined to the allegations of demand of dowry as raised, but may also be taken into consideration from the fact that the deceased had met unnatural death, for which, alternative charge was framed under Section 302 of the I.P.C. against the respondent no.5- husband.
[13.] We do not agree with the aforesaid submissions of learned APP, for the reasons which we may assign for not having proved the charge under Section 302 of the I.P.C. However, as regards the charge under Section 498(A), upon appreciation of the overall evidence of the witnesses relied upon by the prosecution, there is absence of essential ingredient of cruelty or harassment by the accused in connection with the demand of dowry. None of the Page 22 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined aforesaid witnesses examined by the prosecution brings on record the cruelty meted to the deceased in connection with demand of dowry. The prosecution has not examined the so called community leaders Lavabhai Mavani and Gordhanbhai as their witness to establish their case by their intervention, the deceased was sent back to her husband's house. Hence, in our view, the learned Judge has rightly not accepted the case of the prosecution in absence of adequate material to convict them for the offence punishable under Sections 498(A) and 304 (B) of the I.P.C.
[14.] As regards the submissions made by learned APP appearing for the appellant-State for the provisions of Section 113(B) of the Evidence Act is concerned, we are of the view that the aforesaid provision, permit the Court to raise presumption against the respondent-accused for the dowry death, in case, where the prosecution succeeds in showing that soon before her death, she was subjected by accused to cruelty or harassment or in connection with any demand of dowry, her death had occurred within period of 7 years of her marriage, otherwise than, under the normal circumstances. Indisputably, the marriage span of the deceased with respondent no.5 was of 5 years and less than 7 years. However, for the reasons recorded earlier in absence of the essential ingredient of cruelty or Page 23 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined harassment in connection with demand of dowry being established by the prosecution, this Court would not be in a position to apply the provisions of Section 113(B) of the Evidence Act so as to raise presumption against the respondent-accused for causing dowry death of the deceased. The testimonies of the relevant witnesses which have been read by the prosecution and have been re-appreciated by us, do not lead the case of the prosecution in this regard. Thus, in absence of the cruelty or harassment to the deceased on account of the fact that dowry was demanded and that to soon before her death, the presumption under Section 113(B) of the Evidence Act, would not come to the rescue of the case of the prosecution. [15.] Having opined so, coming to the charge framed under Sections 302, 201 read with Section 34 of the I.P.C., the foundational facts as regards the deceased being lastly seen in the company of the respondent no.5-husband is concerned, is an undisputed fact. [16.] On overall appreciation of the case of the prosecution, it is purely based on circumstantial evidence. We have closely considered the findings and reasons assigned by the learned Sessions Judge in this regard. The case of the prosecution mainly revolves around the evidence of two witnesses namely- Girdharbhai (P.W. Page 24 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined No.24) and Lakhubhai Rajabhai (P.W. No.18) as well as the conduct of the respondent no.5, after the occurrence of the accident. [17.] Learned APP has highly emphasized on the fact that the respondent no.5 has projected a defence that because of the vehicular accident, the deceased having sustained injuries, succumbed to the same.
[18.] We have closely considered the panchnama of place of offence in light of the evidence of the witness- Ravjibhai Manjibhai (P.W. No.6), who is the pancha of the place of offence. The said pancha has supported the case of the prosecution. However, in his examination-in-chief, he has clearly stated that the Cart was lying upside down near the bridge. As against the evidence of the photographs (P.W. No.28) suggests that, he had witnessed the place of offence by taking photographs; however, in his cross-examination, he has agreed to suggestion that place of the offence could not be confirmed merely by looking at the photographs. [19.] In our view, the respondents have successfully brought on record contradictions with regard to position of Cart on the place of offence. Having appreciated the evidence, a view has been taken by Page 25 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined the Trial Court, whereby it has ruled out, more particularly, in light of the medical evidence brought on record that the accused projected a case of murder as a case of accident. We have appreciated the nature of the injuries sustained by the deceased as recorded in the post mortem note. On bare appreciation of the aforesaid document, it clearly transpires that the deceased has sustained single injury. Though, the Post Mortem Report also refers to internal injury, more particularly, the depressed fracture noticed on skull bone and the nostril bone being cracked. We are of the view that, as opined by the Medical Officer-Dr. Parshurarm R. Agrawat, who has been examined as P.W. No.23, it is possible that injuries are likely to be caused by the accident as well. The Doctor has clearly stated in his cross-examination that it is not possible to confirm that the deceased had died due to homicidal death or due to the accident. He has further admitted that such injuries are possible when a person falls from 8 to 10 feets from the pull and is met with the stone.
[20.] In our view, the heavy burden lied upon the prosecution to establish the charge of murder beyond reasonable doubt. Learned APP has urged this Court to take the aid of Section 106 of the Evidence Act, whereby the Courts are permitted to call upon the person who is especially within the knowledge of any fact. Then, Page 26 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined according to him, the burden lies upon that person to prove that fact. The conduct of the respondent-accused of having left the deceased wife at the scene of the accident and not disclosing the aforesaid fact to the witness Girdharbhai (P.W. No.20) till his statement which was recorded by the Police Officer, while he was admitted in the hospital and the corroborated material and the nature of discovery panchanama being brought on record, according to us, are incriminating factors against him. It is not a adequate material to prove the case of the serious offence like murder. The accused in such circumstances, owes an explanation under Section 106 of the Evidence Act with regard to circumstances under which death may have taken place. However, the burden still remains on prosecution to establish a chain of circumstances by corroborative evidence leading to only inference for guilt of accused. It is settled legal position that if there is any doubt or break in the chain of circumstances, the benefit of doubt must go to the accused. In our view, looking to evidence of medical expert, the prosecution has failed to establish core ingredient of homicidal death. The view taken by the Trial Court to be a accidental case is a plausible view.
[21.] For the reasons recorded, we are in complete agreement with the findings and reasons assigned by the learned Sessions Judge Page 27 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025 NEUTRAL CITATION R/CR.A/905/1996 JUDGMENT DATED: 20/05/2025 undefined in recording acquittal of the respondents-accused. Considering the scope of Section 378 of the Code, in absence of any perversity being pointed out by the learned APP, we are not inclined to interfere with the present appeal against the impugned judgment and order of acquittal. Hence, the present appeal fails, and is hereby dismissed. The bail bond issued upon the respondents stands cancelled. [22.] Record and proceedings be sent back to the concerned Trial Court forthwith.
(NISHA M. THAKORE,J) (UTKARSH THAKORBHAI DESAI, J) SUYASH SRIVASTAVA Page 28 of 28 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Fri May 23 2025 Downloaded on : Sat May 24 12:25:14 IST 2025