Gujarat High Court
Kamlesh Prabhudas Tanna vs State Of Gujarat & 1 - Opponent(S) on 6 September, 2007
Author: A.R. Dave
Bench: Anil R. Dave
CR.A/531/2004 1/19 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 531 of 2004
With
CRIMINAL APPEAL No. 1889 of 2004
With
CRIMINAL REVISION APPLICATION No. 444 of 2007
In CRIMINAL APPEAL No. 531 of 2004
For Approval and Signature:
HONOURABLE MR.JUSTICE ANIL R. DAVE
HONOURABLE MR.JUSTICE H.B.ANTANI
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Whether Reporters of Local Papers may be allowed
1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy
3 of the judgment ?
Whether this case involves a substantial question
of law as to the interpretation of the
4 constitution of India, 1950 or any order made
thereunder ?
Whether it is to be circulated to the civil judge
5 ?
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KAMLESH PRABHUDAS TANNA - Appellant(s)
Versus
STATE OF GUJARAT & 1 - Opponent(s)
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Appearance :
MR PM VYAS with MS REKHA H KAPADIA for Appellant(s)
MS HANSABEN PUNANI Ld. APP for Opponent(s) : 1,
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CORAM : HONOURABLE MR.JUSTICE ANIL R. DAVE
and
HONOURABLE MR.JUSTICE H.B.ANTANI
Date : 06/09/2007
CR.A/531/2004 2/19 JUDGMENT
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE H.B.ANTANI)
1. The present appeal under sec. 374(2) of CrPC is directed against the judgment and order rendered by the learned Addl. Sessions Judge, Fast Track Court No. 1, Jamnagar in Sessions Case No. 158 of 2001 imposing 7 years R/I and a fine of Rs. 1000/-, in default, 1 year S/I under sec. 304(B) of IPC, 5 years R/I and a fine of Rs. 1000/-, in default, one year S/I under sec. 306 of IPC and 18 months R/I and fine of Rs. 500/-, in default, S/I of six months under sec. 498A of IPC. The appellants are also awarded sentence under sec. 4 of the Dowry Prohibition Act for a period of 6 months R/I and fine of Rs. 250/-, in default, further S/I of two months. The learned Judge has held that all the sentences shall run concurrently.
2. At the time of admission hearing of this appeal, suo motu enhancement notice was issued with regard to the imposition of R/I of 18 months on the appellants by the Court, which was initially registered as Criminal Misc. Application No. 3666/2004 but CR.A/531/2004 3/19 JUDGMENT subsequently it was converted into Criminal Revision Application No. 444/2007.
3. The State of Gujarat has also preferred enhancement appeal being Criminal Appeal No. 1889/2004 and as per the order dated 13.10.2006 the appeal preferred by the State is ordered to be tagged and heard along with the present appeal. Therefore, both these appeals being Criminal Appeal Nos. 531/2004 and 1889/2004 as well as Criminal Revision Application No. 444/2007 are heard together and disposed of by this common judgment.
4. The short facts giving rise to the present appeal are as under:
5. The appellant no. 1 married with deceased Sandhya on 29.4.1997. The appellant no. 2 is the mother-in-law of deceased Sandhya. As per the prosecution case, the appellants used to inflict mental and physical torture on the deceased. They used to demand dowry from the deceased and, in fact, demanded an amount of Rs. 2 lacs from the father of the deceased and, thus, both the appellants have committed the offence punishable under sec. 498A of IPC. The appellants were demanding dowry from CR.A/531/2004 4/19 JUDGMENT deceased Sandhya and used to exert pressure on her to such an extent that on 11.9.2001 the deceased committed suicide by hanging herself from the ceiling fan of the bed-room. When the deceased Sandhya committed suicide, the appellants by inflicting mental and physical torture on her abated in the commission of the said offence and, therefore, both the appellants have committed the offence punishable under sec. 304(B) and 306 of IPC. As per the prosecution case, the demand of dowry from deceased was made by the appellants. They used to harass the deceased and demanded Rs. 2 lacs from her and, thereby, they have committed the offence punishable under sec. 4 of the Dowry Prohibition Act. The complaint was given by the brother of the deceased Santosh Chandrashekhar Kanan to the Deputy Police Commissioner, Jamnagar and in pursuance to the said complaint offence was registered against the appellants. The place where the ghastly incident had occured was visited and the panchnama with regard to the place of incident was prepared. The dead-body of the deceased was sent for post-mortem. The Investigating Officer also recorded the statements of the witnesses from the neighbourhood. On the receipt of the report from the FSL and other material on the CR.A/531/2004 5/19 JUDGMENT record of the case, the appellants were charge- sheeted and produced before the Ld. JMFC, Jamnagar, who, in turn, committed the case to the Sessions Court under sec. 209 of CrPC as the case was exclusively triable by the Sessions Court. The matter was, thereafter, set down for the full-fledged trial before the Sessions Court.
6. The prosecution has examined the following witnesses in order to prove the involvement of the appellants in the commission of the offence. They are as under:
1. PW-1 Dr. Rakhalchandra Gopeshchandra Datt ex.19
2. PW-2 Santosh Chandrashekhar Kanan (Complainant) Ex. 24
3. PW-3 Prashannjit Rupendrakumar Bhattacharya Ex.27
4. PW-4 Yogesh Narmadashankar Raval Ex. 28
5. PW-5 Rajubhai ratilal Ex. 29
6. PW-6 Ashokbhai Ratanshi Jethva Ex. 30
7. PW-7 Karansinh Jilubha Ex. 31
8. PW-8 Chhabil Nanubhai Sangani Ex. 32
9. PW-9 Pranav Jayeshbhai Dave Ex. 33
10.PW-10 Umaben Dharnat Chavda Ex. 34
11.PW-11 Vijaysinh Balvantsinh Jadeja Ex. 36
12.PW-12 Nanduben w/o Nagjibhai Ex. 38
13.PW-13 Chandrashekhar Kanan Ex. 39
14.PW-14 Padmini Chandrashekhar Kanan Ex. 40
15.PW-15 Ujjavala Uttam Ex. 41
16.PW-16 Hitendra Ratilal Kelaiya (Executive Magistrate)Ex.44
17.PW-17 Motilal Pethraj Barot (Head Constable) Ex.48
18.PW-18 Dilipsinh Gatursinh Vaghela (P.I.) Ex. 51
19.PW-19 Pitambar Keshabhai Dabhi (P.S.O.) Ex. 54 CR.A/531/2004 6/19 JUDGMENT
20.PW-20 Sandilkumar K.M.K. Swami Ex.58
21.PW-21 Raghubha Prabhatsinh Zala (P.S.I.) Ex.59
22.PW-22 Chhaguji Chaturji Rajput (I.O.) Ex.60
7. The prosecution has also produced the documentary evidence and, they are as under:
1. PM Note Ex. 20
2. Yadi for PM Note Ex.21
3. Form for Post Mortem Ex. 22
4. Original complainant Ex. 25
5. Yadi for Inquest Ex.45
6. Inquest panchnama of dead-body Ex. 46
7. Yadi for Post Mortem Ex. 49
8. Yadi for making entry of accidental death Ex.52
9. Yadi for registering the offence Ex. 55
10. Copy of station diary Ex. 56
11. Panchnama of place of incident Ex. 61
12. Panchnama of scissor seized from place of incident Ex.62
13. Panchnama of person of appellant no. 1 Ex. 63
14. Report for adding of Sec. 306 of IPC Ex. 64
15.Letter with Statement of Muddamal sent to FSL Ex.65
16. Authority Certificate Ex. 66
17. FSL Report Ex. 68
18. Biological report Ex. 70
19. Serological Report Ex. 71
20. Certificate of marriage registration Ex. 72
21. Medical certificate of deceased Ex. 74
22. Panchnama of person of appellant no. 2 Ex. 75
23. Report of the offence Ex. 76
8. At the conclusion of the trial, further statement of both the appellants were recorded under sec. 313 of CrPC and even written submissions were also given on behalf of the appellants.
CR.A/531/2004 7/19 JUDGMENT
9. The learned Judge after going through the entire evidence on the record of the case held that the appellant no. 1 married deceased Sandhya on 29.4.1997. Thereafter, constant mental and physical torture was inflicted by the appellant no. 1 as well as his mother - appellant no. 2. The appellants have demanded Rs. 2 lacs as dowry from the parents of the deceased. Thus, by inflicting mental and physical torture and in demanding the dowry from the deceased, the appellants have committed the offence punishable under sec. 498A and 304(B) of IPC. The ld. Judge further held that prosecution has established that deceased died on 11.9.2001 as a result of the mental and physical torture inflicted by the appellants. The appellants inflicted the mental and physical torture to such an extent that the deceased was driven to commit suicide and thereby the appellants have committed the offence punishable under sec. 306 of IPC. On the basis of the evidence on record of the case, the ld. Judge held that the demand for dowry by the appellants from the deceased Sandhya was made in violation of the provisions of sec. 4 of the Dowry Prohibition Act. And, therefore, they are liable to be punished for the offence under section 4 of the CR.A/531/2004 8/19 JUDGMENT Dowry Prohibition Act. The prosecution has, on the basis of the oral depositions adduced by Santosh Chandrashekhar Kakan PW-2 Ex. 24, Chandrashekhar Kanan PW-13 Ex.39 Padmini Chandrashekhar Kanan PW-14 Ex.40 and Ujjavala PW-15 Ex.41 indicated the involvement of the appellants in demanding dowry from the deceased Sandhya. The appellants used to inflict mental and physical torture on deceased Sandhya and that aspect is clearly reflected in the deposition adduced by the prosecution. Thus, the prosecution has, on the basis of the oral depositions and documentary evidence such as panchnama of the place of the incident, the medical certificate, PM report and FSL report established that the appellants were involved in the commission of the offence punishable under sec. 498A, 304(B) and 306 of IPC and, therefore, the ld. Judge imposed the sentences on the appellants under sec. 498A, 304(B) and 306 of IPC. The ld. Judge further imposed the sentence under sec. 4 of the Dowry Prohibition Act.
10. The learned advocate Mr. PM Vyas representing the appellants submitted that the depositions adduced by the prosecution do not inspire confidence to indicate the involvement of the appellants in the commission of the offence. Santosh Chandrashekhar CR.A/531/2004 9/19 JUDGMENT Kanan PW-2 Ex. 24, Chandrashekhar Kanan PW-13 Ex. 39 and Padmini Chandrashekhar Kanan PW-14 Ex. 40 are interested witnesses. They were not on good term with the appellants and, therefore, with a view to implicate the appellants in the commission of the offence false case has been registered against the appellants. Ld. Advocate submitted that the deposition adduced by the prosecution witnesses, if perused in proper perspective, then, there are many contradictions in the deposition adduced by them, hence, the benefit of the same is required to be given to the appellants and they be acquitted of the charges under sec. 304(B), 306 and 498A of IPC as well as under sec. 4 of the Dowry Prohibition Act. Ld. Advocate further submitted that the prosecution is required to establish the entire link connecting the appellants with the commission of the offence by adducing cogent and convincing evidence. However, on the perusal of the evidence adduced by the prosecution, the entire link connecting the appellants with the commission of the offence is not conclusively established and, therefore, the appellants are required to be acquitted forthwith in the matter.
CR.A/531/2004 10/19 JUDGMENT
11. The ld. Advocate for the appellants has placed reliance on the following judgments. They are as under:
1. 2002(2) Crime p. 12
2. 2002 Criminal L.J. p. 3981
3. 2002 SCC (Criminal) P. 1141
4. 1999(3) GLR P. 2536
12. The first judgment cited by the learned advocate is rendered by the Delhi High Court and reported in 2002(2) Crimes P. 12. Ld. advocate has placed reliance on the judgment rendered by the Delhi High Court in support of the submission that to bring the case within the ambit of sec. 498A of IPC, it is incumbent upon the prosecution to show the positive evidence of cruelty inflicted on the deceased. The second judgment relied upon by the learned advocate is reported in 2002 Cri. LJ p. 3981. The judgment rendered by the Karnataka High Court is relied upon by the learned advocate in support of the submission that when a demand for dowry was made, the parents of the deceased ought to have lodged the complaint. 2002 SCC (Cri.) p. 1141 is cited by the learned advocate in support of the submission that when the prosecution has charged the appellants with the CR.A/531/2004 11/19 JUDGMENT commission of the offence under sec. 306 of IPC, it is incumbent upon the prosecution to prove abatement of suicide. 1999(3) GLR p. 2536 is the judgment rendered by this Court and it is in respect of sec. 498A of IPC. It is held by this High Court that prosecution has to establish that cruelty and harassment within the meaning of sec. 498A was incessant, persistent and unbearable. It is also the duty of the prosecution to establish that cruelty and harassment of the deceased was done with the intention to force her to commit suicide. If these basic ingredients are not complied with, then, the prosecution case is liable to fail. Thus, the learned advocate placing reliance on the above mentioned judgments, submitted that the prosecution has not proved the entire link connecting the appellants with the commission of the offence. Even the basic ingredients of sec. 304(B), 306 and 498A of IPC are not established by the prosecution and, there are many chinks in the armor of the prosecution case and, therefore, both the appellants are required to be acquitted. The learned advocate submitted that in view of evidence in the record of the case, the prosecution has miserably failed to prove that appellants involvement in the commission of the CR.A/531/2004 12/19 JUDGMENT offence and therefore, the Revision Application and Enhancement Appeal be dismissed.
13. Ld. APP Ms. Punani submitted that the charge against the appellants was framed vide ex. 6 for the offence punishable under sec. 498A, 304(B) and 306 of IPC as well as under sec. 4 of the Dowry Prohibition Act. The prosecution has examined the brother of the deceased Santosh Chandrashekhar Kanan PW-2 Ex. 24, Chandrashekhar Kakan father of the deceased PW-13 Ex. 39, Padmini - mother of the deceased PW-14 Ex-40 and the friend of the deceased Ujjavala PW-15 Ex. 41. The appellants, as per the deposition adduced by the prosecution witnesses, had demanded dowry. They used to inflict mental and physical torture on the deceased Sandhya and the torture was inflicted to such an extent that deceased Sandhya was driven to commit suicide. These witnesses have established the involvement of the appellants in the commission of the offence under sec. 304(B), 306 and 498A of IPC as well as under sec. 4 of Dowry Prohibition Act. Ld. APP further submitted that Dr. Rakhalchandra Gapeschandra Datt PW-1 is examined at Ex. 19. He had carried out the Post Mortem of the deceased Sandhya, wherein, he has narrated the internal and external CR.A/531/2004 13/19 JUDGMENT injury suffered by her and, thereafter, he had given certificate. Ld. APP submitted that it has been clearly mentioned in Col. 24 of the certificate that deceased died due to asphyxia on account of hanging. The prosecution has further produced the panchnama of the place of incident, and the FSL report to provide corroboration to the prosecution story about the mental and physical torture inflicted by the appellants which ultimately forced the deceased to commit suicide within the meaning of sec. 306 of IPC. Thus, on the basis of the entire evidence on the record of the case, ld. APP submitted that prosecution has proved the entire link connecting the appellants with the commission of the offence and, therefore, ld. Judge has rightly convicted both the appellants for the offence punishable under sec. 304(B), 306 and 498A of IPC as well as under Section 4 of Dowry Prohibition Act.
14. However, the learned APP representing the State further submitted in enhancement appeal that by not punishing the appellants adequately for the offence punishable under sec. 304(B) and 498A of IPC the learned Judge has committed an error in imposing lesser sentence on the appellants. The Ld. Judge has CR.A/531/2004 14/19 JUDGMENT not appreciated the entire evidence in its true perspective and the nature of the impact of the crime committed by the appellants on the society as a whole while imposing the sentence under sec. 304(B), 498A and 306 of IPC and under sec. 4 of the Dowry Prohibition Act. Thus, the learned APP submitted that taking into account the evidence on record, the appellants be punished for the maximum sentence as prescribed under sec. 304(B), 306 and 498A of IPC as well as under sec. 4 of the Dowry Prohibition Act.
15. We have heard the learned advocate Mr. PM Vyas for the appellants and Ms. Hansaben Punani learned APP for the respondent-State and also perused the oral as well as documentary evidence on the record of the case.
16. The charge against the appellants is framed vide Ex. 4 for the offence punishable under sec. 498A, 304(B) and 306 of IPC as well as under sec. 4 of the Dowry Prohibition Act. The prosecution has examined the complainant Santosh Chandrashekhar Kanan PW-2 vide Ex. 24. He has deposed in his testimony that the incident took place before 2 years and he came to know from the appellant no. 1 about the incident. The CR.A/531/2004 15/19 JUDGMENT appellant no. 1 informed him that because of the ill- health of the children Sandhya got infuriated and committed suicide. He has also stated in the deposition that when Sandhya came to Goa during the first delivery, the appellant no. 1 demanded Rs. 2 lacs. She had also informed the parents about the mental and physical torture being inflicted on her by her in-laws. The appellant no. 1 was in need of Rs. 2 lacs for the purpose of starting new business. Santosh Chandrashekhar Kanan PW-2 has also given the complaint vide Ex. 25, wherein, he has reiterated about the demand of dowry made by the in-laws of Sandhya. He has also narrated in the complaint about the mental and physical torture inflicted on Sandhya by her in-laws. The deposition adduced by Santosh Chandrashekhar Kanan stands corroborated by the deposition adduced by Chandrashekhar Kanan PW-13 Ex. 39 and the mother of the victim Padmini Chandrashekhar Kanan PW-14 Ex. 40. These witnesses have narrated the story of mental torture inflicted by the in-laws of Sandhya. They have also mentioned in the deposition about the demand of dowry. The friend of deceased - Ujjavala Uttam PW-15 Ex. 41 has narrated in her deposition as to how deceased Sandhya was harassed and the dowry was demanded from deceased CR.A/531/2004 16/19 JUDGMENT Sandhya. Thus, necessary corroboration is forthcoming from the deposition of Ujjavala vide Ex. 41. The version given by these witnesses in examination-in- chief has not been dislodged in their cross- examination. In view of the aforesaid fact and circumstances, there is no reason to discard their deposition. The prosecution has examined Dr. Rakhalchandra Datt PW-1 at Ex. 19 who had carried out the post mortem of the dead-body of Sandhya. The doctor has deposed in his testimony about the internal and external injuries suffered by the deceased Sandhya. The Post moterm report produced at ex. 20 elaborately mentions about the injuries sustained by the deceased Sandhya and he has further mentioned in the certificate that the death of the deceased was caused due to asphyxia on account of hanging. Thus, on the perusal of the aforesaid deposition, we do not see any reason to disbelieve or discard the same. We have also perused the documentary evidence such as panchnama of place of the incident, inquest panchnama and the FSL report vide Ex. 68,70 and 71. The above mentioned documents do provide necessary link connecting the appellants with the commission of the offence.
CR.A/531/2004 17/19 JUDGMENT
17. The marriage of deceased Sandhya took place with appellant no. 1 on 29.4.1997 and on 11.9.2001 she had committed suicide. It is evident from the record of the case that both the appellants were inflicting mental and physical torture on deceased Sandhya. They were also demanding dowry from her parents and the demand was to such an extent that ultimately Sandhya was compelled to commit suicide as she was fed-up with the unreasonable demand of dowry made by the appellants. The basic ingredients contained in sec. 304(B), 306 and 498A of IPC as well as under Section 4 of Dowry Prohibition Act are, in our view, established by the prosecution. There is no lacuna or loopholes in the oral deposition or documentary evidence relied upon by the prosecution to prove the involvement of the appellants in the commission of the offence. It has been urged by the learned advocate representing the appellants that there are many contradictions in the deposition adduced by Santosh, Chandrashekhar and Padmini, but even if we consider the contradictions, they are of a very minor nature. The fact remains that the appellants immediately after the marriage of Sandhya with appellant no. 1 started harassing her and the harassment reached the point of no return, as a CR.A/531/2004 18/19 JUDGMENT result of which the deceased was driven to commit suicide. We do not find any lacuna in the oral evidence adduced by the prosecution and the same stand corroborated by ample documentary evidence.
18. With regard to enhancement notice issued by this Court to the appellants under Section 498A of IPC, we have considered the evidence on record of the case and we do not find it necessary to impose more sentence than one which is already imposed by the learned Judge and, therefore, we confirm the order of sentence imposed by the learned Judge even under sec. 498A of IPC.
19. We have also considered the submissions canvassed by the learned APP on behalf of State for enhancement of the sentence on the appellants under sec. 304(B), 306 and 498A of IPC as well as under
sec. 4 of the Dowry Prohibition Act. However, taking into overall evidence on record of the case, we are of the considered view that State has not made out a case for the enhancement of the punishment as prayed for in the appeal.
20. For the foregoing reasons, Criminal Appeal No. 531/2004 preferred by the appellants and Criminal CR.A/531/2004 19/19 JUDGMENT Appeal No. 1889/2004 preferred by the State as well as Criminal Revision Application No. 444/2007 are liable to fail and the same are hereby dismissed.
21. The appellant no. 2 is on bail. Her bail bond stands cancelled. However, considering the old age of appellant no. 2, she is directed to surrender before the jail authority to undergo the remaining period of sentence within four weeks from today, failing which, the concerned learned Sessions Judge shall issue non- bailable warrant against the appellant no. 2 for securing her presence. The muddamal to be disposed of in terms of the order passed by the trial court after the appeal period is over.
Yadi be sent to the concerned Learned Sessions Judge, forthwith.
(A.R. DAVE, J.) (H.B. ANTANI, J.) mandora/