Gujarat High Court
State Of Gujarat vs Kadiya Bhagavanji Mavji & on 18 January, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT....Appellant(s)V/SKADIYA BHAGAVANJI MAVJI R/CR.A/683/1995 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 683 of 1995 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ STATE OF GUJARAT....Appellant(s) Versus KADIYA BHAGAVANJI MAVJI & 2....Opponent(s)/Respondent(s) ================================================================ Appearance: PUBLIC PROSECUTOR for the Appellant(s) No. 1 (MR AKSHAY H MEHTA), ADVOCATE for the Opponent(s)/Respondent(s) No. 1 MR ATUL H MEHTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2 - 3 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 18/01/2013 ORAL JUDGMENT
1) This appeal is directed against the judgment and order dated 9th March, 1995 passed by the learned Assistant Sessions Judge, Jamnagar in Sessions Case No.174 of 1993, whereby the accused have been acquitted of the offences punishable under sections 498A and 306 read with section 114 of the Indian Penal Code.
2) The first informant-Mohan Govind Vaghela lodged a first information report before the Jodiya Police Station to the effect that his daughter Jyotsana was married to the accused No.1-Bhagvanji Mavji, who was a resident of village Bodka. The span of her married life was three years and at the time of her marriage, Jyotsana was aged twenty two years. She could not write and she used to stammer slightly of which her in-laws and husband were aware prior to her marriage. After her marriage, Jyotsana had miscarried once and, thereafter, she did not have any other issue. After about one and a half years of her marriage, the accused No.1 had come with Jyotsana to the house of the first informant and told him that he was going to reside at Mumbai and was going to do the work of diamond polishing and was going to keep a house on rent and would take Jyotsana with him to Mumbai. Hence, he told the first informant that he should permit Jyotsana to reside at his house till he makes necessary arrangements to take her to Mumbai. After leaving Jyotsana at his house, his son-in-law had returned to Bodka and, thereafter, gone to Mumbai and about two months thereafter, had returned to Bodka, however, he had not come to fetch the deceased and had not sent any news to them. It was alleged that the deceased had informed him that since she used to stammer slightly, the accused did not like her and used to taunt her and at times, even, beat her. The accused No.1, despite having returned to Bodka from Mumbai, had not come to fetch the deceased and hence, the first informant had talked about the same to the leader of their caste one Premjibhai, resident of village Banugar. Premjibhai had, thereafter, arranged a meeting of the first informant and the accused, however, prior thereto, a settlement had been arrived at between the families and the accused had assured them that the deceased would not be subjected to any kind of harassment on their part. Hence, about seven months prior to the incident, the accused No.1 and 2 had taken the deceased with them to her matrimonial house. Later on, about a month prior to the date of the incident, in view of the disputes which were going on in the house of the accused, the accused No.1 and the deceased had separated from the accused No.2 and 3 and had taken a room on rent nearby and were residing separately, at which point of time his cousins Chhagan Savji and Damji Karshan had visited Bodka. Thereafter, on 2nd August, 1993, viz., the date on which the first information report came to be lodged, in the afternoon at about 12:30, Parshottambhai, the brother of the accused No.2 had come to the agricultural field of the first informant and told him that his daughter had sustained burn injuries while cooking and that he should accompany him to Bodka. Hence, the first informant, his elder brother Chagan Savji, Gangdasbhai, his wife Narmadaben as well as Punjiben and his sister-in-law Kasturben had gone to the house of the accused No.2 at Bodka, where they learnt that Jyotsana had died on account of burn injuries. Hence, the first informant and the other relatives returned home and the first informant lodged the first information report against the accused. It is further alleged that as the accused did not like the first informant s daughter Jyotsana as she used to stammer, they had subjected her to physical and mental harassment, which she could not tolerate and ultimately she had no option but to commit suicide and shorten her life.
3) Pursuant to the lodging of the first information report, investigation came to be carried out. Upon culmination of the investigation, charge-sheet came to be submitted in the Court of the learned Judicial Magistrate, First Class, Jodiya. Thereafter, the case came to be committed to the Court of Sessions and was registered as Sessions Case No.174 of 1993. During the course of trial, the prosecution examined, in all, eleven witnesses and also produced certain documentary evidence on record. The learned Assistant Sessions Judge, after appreciating the evidence on record, came to the conclusion that the prosecution has not established the charges levelled against the accused beyond reasonable doubt and acquitted them.
4) Mr. H. K. Patel, learned Additional Public Prosecutor assailed the impugned judgment by submitting that the span of marriage of the deceased was only three years, hence, the presumption under section 113A of the Indian Evidence Act, 1872 would be applicable in the present case. Referring to the deposition of the first informant, it was submitted that he has duly testified that the accused did not like his daughter as she used to stammer and used to taunt her about it and also subjected her to physical and mental harassment. It was submitted that the accused No.1-husband had, under the pretext that he was going to Mumbai, left the deceased at her parental home saying that he would fetch her after making residential arrangement at Mumbai, but despite having returned to Bodka, did not even inform the first informant and the deceased about it. At that time, the deceased had resided at her parental home for one year. It was only after a settlement came to be arrived at between the families that the accused had taken the deceased to their home with an assurance that they would not subject her to mental or physical harassment. According to the learned Additional Public Prosecutor, the fact that the deceased was not taken to her matrimonial home for a period of one year, would itself constitute cruelty. It was submitted that the first informant has duly deposed that there were disputes with regard to work in the matrimonial home of the deceased and that the accused were subjecting her to harassment. Referring to the deposition of Chaganbhai Savjibhai, the brother of the first informant, it was pointed out that the testimony of the first informant is corroborated by the testimony of this witness who has deposed that the accused used to harass the deceased as she used to stammer. The attention of the court was drawn to the examination-in-chief of the said witness to point out that the deceased had complained to him that she was not being given sufficient food. Therefore, cruelty as envisaged under section 498A of the Indian Penal Code has clearly been made out. Moreover, the prosecution has duly proved that the deceased was subjected to mental and physical harassment which she could not tolerate and took the extreme step and committed suicide. Thus, the provisions of section 306 of the Indian Penal Code would clearly be attracted in the facts of the present case. It was, accordingly, urged that the prosecution has duly proved the charges under section 498A as well as under
section 306 read with section 114 of the Indian Penal Code and, as such, the learned Judge was not justified in acquitting the accused.
5) Opposing the appeal, Mr. Tirthraj, learned advocate for Mr. Atul H. Mehta, learned advocate for the respondents, submitted that to invoke the provisions of section 113A of the Indian Evidence Act, the prosecution was required to prove not only that the deceased had committed suicide within a period of seven years, but was also required to prove that she had been subjected to cruelty. It was submitted that in the facts of the present case, the prosecution has not established that the deceased was subjected to any cruelty by the accused. Under the circumstances, the presumption under section 113A of the Indian Evidence Act would not be applicable. Referring to the deposition of the first informant, it was pointed out that he, in his examination in chief, has deposed that he did not know as to why his daughter had set herself ablaze. The attention of the court was drawn to the conduct of the complainant at the time when the dead body of the deceased was to be handed over, to point out that, despite being the father of the deceased, he had refused to accept the dead body whereas on the other hand, it was the accused, who had willingly accepted her dead body and performed the funeral rites. Attention was also invited to the fact that the first informant, in his cross-examination, has accepted that the fact regarding disputes with regard to agricultural work, for the first time, was stated in his deposition and that he had not mentioned any such thing in the first information report. It was further submitted that it is an undisputed position that one year prior to the date of the incident, the deceased and her husband, namely, the accused No.1 were residing separately from the other accused persons. Under the circumstances, there was no reason for implicating the accused No.2 and 3, who were the father-in-law and mother-in-law of the deceased. Referring to the deposition of the first informant, it was pointed out that he has stated that when they had gone to Bodka three to four days prior to the incident, they had gone to the house of the deceased for tea. It was submitted that the first informant is totally silent about the deceased having made any grievance regarding any harassment at that time. Under the circumstances, in the absence of any evidence being led to establish that the deceased was subjected to any cruelty at the hands of the accused, the ingredients of section 498A as well as section 306 of the Indian Penal Code are clearly not attracted. It was further submitted that the learned Sessions Judge has given sufficient and cogent reasons in support of the conclusions arrived at by him and that the view adopted by the learned Judge is a plausible view, therefore, in the absence of any perversity being pointed out in the findings recorded by the learned Judge, there is no warrant for intervention by this court.
6) A perusal of the record and proceedings of the case reveals that the case of the prosecution is mainly based upon the depositions of the first informant-Mohanbhai Govindbhai, his wife Narmadaben and his cousin Chaganbhai. The first informant has deposed that for a year after her marriage, his daughter had a happy married life. However, thereafter, the accused No.1 had left his daughter at her parental home under the pretext that he was required to go to Mumbai. At that time, his daughter had stayed at her parental home for approximately six months, during which period his daughter did not say anything about her grievances. His son-in-law had told him that when he finds a place at Mumbai, he would take his daughter with him. Thereafter, for twelve months, he did not come to fetch his daughter. His son-in-law stayed at Mumbai for some time and, thereafter, returned to Bodka. Since the accused did not return to fetch his daughter for twelve months, they had approached the members of their community, however, the elders of the family, inter se, arrived at a settlement and the accused No. 2 and 3 had assured them that they would not ill-treat the deceased. Thereafter, all the three accused had come to fetch the deceased to her matrimonial home. He has further deposed that after his daughter went to her matrimonial home, the agricultural work was still continuing and there were disputes in that regard and the accused used to subject his daughter to harassment. In his cross-examination, it has been revealed that his daughter s father-in-law used to do agricultural work. That he (the first informant) had very little agricultural land and hence, he (the first informant) also used to do labour work. Since his son-in-law was not able to run the house from his agricultural income, he used to go to Mumbai for diamond polishing. The accused No.1 had told him that when he finds a room at Mumbai for residential purpose, he would come and fetch Jyotsana. He has accepted that he had not mentioned in the first information report that there were disputes with regard to agricultural work. He has deposed that from the time when the accused came and took his daughter till the time of the incident, he had not visited Bodka. He has accepted that about a month prior to the date of the incident, his son-in-law along with his daughter had started residing separately from his parents and that when the deceased fell ill, the accused had taken her to the hospital of Dr. Patel for treatment and at that time, he had also called them. He has further stated that after his daughter was given treatment at Balambha, he had taken his daughter to her parental home and that at one point of time, she had also been given treatment by one Dr. Dudhai. In his cross-examination, it has further come out that when they learnt about the incident, they had immediately gone to Bodka in a rickshaw, but had stayed there for ten minutes only and had immediately returned to their village. For lodging the first information report, they had gone to the police station in Indubha s jeep. It is further revealed that the first informant had gone to the police station with his brother Chaganbhai and his son Jagdish. After they had lodged the complaint, the police had come to their house at night.
Thereafter, they had gone to the Panchayat Office at Bodka along with the police, at which point of time, the Sarpanch, who belonged to their caste was present at the office. They had stayed there for about an hour and the police had told them that they would write a detailed first information report. He has denied the suggestion that his daughter was slightly mentally retarded. He has further admitted that they have received back his daughter s clothes and ornaments.
7) P.W. No.3-Narmadaben, the mother of the deceased, has deposed that one year after her daughter s marriage, their son-in-law had come and dropped her at her parental home and had asked them to keep her there for fifteen days as he was going to Mumbai and that after he finds a room to stay there, he would come and fetch her. However, for a period of twelve months, he did not come to fetch her, after which, some papers were executed amongst the members in the caste and a settlement was arrived at, after which, the deceased was taken to her matrimonial home.
Thereafter, they had never visited Bodka. She has further deposed that at the time when her daughter stayed at her parental home for a year, she never talked about her matrimonial home. After she was taken back to her matrimonial home pursuant to the settlement, she had come to her parental home for four days for the purpose of Jaya Parvati Vrat. At that time also, she did not say anything regarding her in-laws. Her daughter used to stammer and the said aspect was brought to the notice of the accused at the time of her engagement. She has stated that she does not know the reason as to why her daughter has died. She, however, has stated that there were disputes going on at her daughter s matrimonial home.
8) Chaganbhai Savjibhai, the cousin of the first informant has been examined at exhibit-15. Certain facts have been deposed by him on the basis of what was told to him by the first informant. He has deposed that after the settlement came to be arrived at and the deceased was taken back to her matrimonial home, he had gone to her house once. The brother-in-law of the deceased had come to call them, hence, they had gone. The said youth had told them that Jyotsana was not eating and hence, they should come with him. They went there and reprimanded Jyotsana, who said that they were not giving her sufficient food. Thereafter, they had persuaded the deceased and asked her not to quarrel and had returned back.
9) On an independent appreciation of the evidence on record, the following aspects are noticeable. The fact that the deceased used to stammer was known to the accused prior to the time when the accused No.1 got engaged to the deceased. Under the circumstances, the allegation that the accused did not like the deceased because she used to stammer does not appear to be wholly true. It may be noted that in the present case, the allegations against the accused are for commission of the offences punishable under sections 498A and 306 of the Indian Penal Code. It has been contended by the learned Additional Public Prosecutor that in the present case, the span of marriage is only three years, hence, the provisions of section 113A of the Indian Evidence Act would be attracted. Therefore, there is a presumption that the accused had abetted the deceased in committing suicide. In this regard, reference may be made to the provisions of section 113A of the Evidence Act, which bears the heading Presumption as to abetment of suicide by a married woman and lays down that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by the husband or by such relative of the husband. The explanation thereto says that cruelty shall have the same meaning as in section 498A of the Indian Penal Code.
10) On a plain reading of the above provision, it is evident that for the purpose of attracting section 113A of the Evidence Act, two factors are required to be established. Firstly, that the woman committed suicide within a period of seven years from the date of her marriage, and secondly that she had been subjected to cruelty by her husband or a relative of her husband. Such cruelty has to be a cruelty as envisaged under section 498A of the Indian Penal Code.
11) The facts of the present case are, therefore, required to be examined in the light of the above statutory provisions.
12) The record of the case reveals that admittedly the accused No.2 and 3 were residing separately from the deceased, since about a month or so prior to the date of the incident. Under the circumstances, it appears that they have been falsely sought to be implicated in the offence in question, inasmuch as, no evidence had been led by the prosecution to show that the accused No.2 and 3 had, in proximity to the date of the incident, committed any acts of cruelty so as to instigate the deceased to commit suicide. Another notable aspect of the matter is the conduct of the accused vis-¿-vis the conduct of the first informant. From the deposition of the first informant, it is revealed that after they heard the news about the incident, they had gone to the house of the accused and found that their daughter had died. Thereafter, they immediately returned to their village and went to the police station to lodge the first information report. It has also come on record that the police had asked him to take the custody of his daughter s dead body; however, he had refused to do so. On the other hand it was the accused who had willingly taken the custody of the dead body and had performed the last rites of the deceased. Apart from the fact that the first informant and his family members did not take custody of the dead body, they did not even pay their last respects to the deceased by attending her last rites and remained absent at the funeral rites.
13) It is also significant to note that though in the first information report it has not been stated that there were any disputes with regard to agricultural work, from the depositions of the witnesses, it appears that there were disputes between the parties, on account of which, initially the deceased was sent back to her parental home and was taken back only after the intervention of the members of the community. The disputes principally appear to be in connection with agricultural work. Through the testimonies of the witnesses, it has come on record that the accused were engaged in agricultural work which probably was not to the liking of the deceased and this appears to be the main reason for the disputes between the families. The record further reveals that at the time when the deceased fell ill, the accused had taken her to a doctor and had provided her with medical treatment and had also informed the first informant, who had gone to meet his daughter and, thereafter, had brought her back to his house. She had, on an earlier occasion also, been provided treatment by a doctor Mr. Dudhai. Thus, insofar as the conduct of the accused is concerned, there is nothing unnatural about the same. From the testimonies of the witnesses, there is no allegation regarding any kind of harassment being meted out to the deceased. Thus, except for the bare say of the first informant that the deceased was subjected to harassment, no evidence worth the name has been led by the prosecution to establish the nature of such harassment.
14) At this juncture reference may be made to the definition of the expression cruelty which has been defined under section 498A IPC to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.
15) In the facts of the present case, from the evidence which has been led by the prosecution to establish the charges against the accused, there is no material whatsoever to establish that the deceased was subjected to any cruelty as envisaged under the said provisions so as to instigate her to commit suicide. The only allegation, which has come on record, is that, on account of the fact that deceased used to stammer, the accused did not like her and that after one year of her marriage, her husband had left her at her parental home and did not come to fetch her for a period of twelve months thereafter. Except for the aforesaid allegations, there is no allegation worth the name, which can be said to constitute cruelty within the meaning of the said expression. Insofar as the second part of the definition of section 498A of the Indian Penal Code is concerned, it is not the case of the prosecution that any demand for any property or valuable security had been made by the accused. Evidently, therefore, the ingredients of the offence under section 498A have clearly not been satisfied in the present case. If the charge under section 498A is not established, namely, that the woman was subjected to cruelty by her husband or relative, the charge under section 306 of the Indian Penal Code would, ipso facto, fall to the ground.
16) In the light of the above discussion, it is amply clear that the prosecution has not established the charges under sections 498A or 306 of the Indian Penal Code. Under the circumstances, no infirmity can be found in the impugned judgment and order passed by the learned Assistant Sessions Judge in acquitting the accused of the charges levelled against them.
17) In the result, the appeal fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) Vahid Page 21 of 21