Gujarat High Court
State Of Gujarat vs Jethwa Ashokbhai Ranchhodbhai on 20 January, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.MA/13824/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13824 of 2019
In
R/CRIMINAL APPEAL NO. 1466 of 2019
With
R/CRIMINAL APPEAL NO. 1466 of 2019
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STATE OF GUJARAT
Versus
JETHWA ASHOKBHAI RANCHHODBHAI
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Appearance:
MS MOXA THAKKAR, ADDITIONAL PUBLIC PROSECUTOR(2) for
the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI
Date : 20/01/2020
ORAL ORDER
[1.0] This application for leave to appeal is filed by the State challenging the order of acquittal dated 15.04.2019 passed by the learned 3rd Additional Sessions Judge (Ad hoc), Gandhinagar in Sessions Case No.78 of 2012 whereby the respondents - accused have been acquitted of all the charges levelled against them.
[2.0] Vide order dated 27.11.2019, passed in this case, Record and Proceedings from the learned trial Court was called for. Pursuant thereto, Record and Proceedings is before the Court.
[3.0] According to the case of the prosecution, on 30.08.2008, Rikesh Hasmukhlal, after committing murder of Page 1 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER his mother as also sister, on a quarrel in respect of property, committed suicide by hanging. There was a suicide note alleged to be written by the deceased - Rikesh Hasmukhlal wherein it is disclosed that he was under mental stress because of the property to be inherited of his father and in the suicide note, he has named the accused, who happens to be the maternal Uncles of the deceased. It is also referred in the said suicide note about 71 recorded audio track on CD, which is lying in the hand purse of the deceased alongwith the particulars about it. It is further the case of the prosecution that pursuant to the property dispute, to be inherited of his father, the accused inflicted mental cruelty by taking side of his mother and because of that reason the deceased committed murder of his mother and sister and thereafter committed suicide. Thus, the respondents - accused were alleged to have committed offences punishable under Sections 498A, 306, 323 and 504 of the Indian Penal Code.
[3.1] One Shri Bhupendrakumar Natvarlal Dave, who was at the relevant time Police Inspector in Sector 21 Police Station in 2011, has registered the FIR, pursuant to the order passed by the Deputy Superintendent of Police based on the order of the Sub Divisional Magistrate, Gandhinagar, against the present accused. The alleged incident of murder and suicide by the deceased took place on 30.08.2008. Pursuant thereto, Accidental Death Case No.38 of 2008 under Section 174 of the Code of Criminal Procedure, 1973 came to be registered. The papers of the said Accidental Death Case were entrusted to the first informant - Shri Bhupendrakumar Natvarlal Dave, the then second P.I. of the Police Station alongwith the suicide note as also 71 audio track on CD, which were seized during Page 2 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER investigation. On 29.05.2009, Tejalben - wife of the deceased gave an application to the Police in the Police Station complaining about the persons responsible for the suicide of the deceased to be the present accused as also one Rasikbhai, who is again maternal Uncle of the deceased. Pursuant to the said application, the first informant - Police Inspector contacted Tejalben, wife of the deceased, to which she has disclosed that on 13.11.2009 there is a written settlement arrived at between Tejalben as also the accused, and therefore, she did not want to proceed further with the same. Such facts were given in writing by Tejalben on 19.10.2011, and therefore, all the papers of the Accidental Death Case as also the written communication dated 19.10.2011 submitted by Tejalben were forwarded to the Deputy Superintendent of Police vide communication dated 24.10.2011. Thereafter, Deputy Superintendent of Police directed to initiate appropriate steps, as mentioned in the communication dated 06.01.2009 sent from the office of Sub Divisional Magistrate. Hence, pursuant to the suicide note, since the present accused were found to be responsible for the suicide of the deceased, a case was registered against them. After conclusion of the investigation, charge-sheet came to be submitted and on committal of the same, the learned trial Judge has, after conclusion of the trial, acquitted them of all the charges levelled against them.
[3.2] To prove the case against the accused, the prosecution examined nearly 18 witnesses and produced and proved approximately 37 documents. After elaborate discussions with regard to the evidence led before it, the learned trial Judge acquitted the accused, and therefore, the Page 3 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER present application seeking leave to appeal is preferred against the judgment of acquittal.
[4.0] Ms. Moxa Thakkar, learned Additional Public Prosecutor, submitted that the suicide note, Exh.36 is proved to be in the handwriting of the deceased and his handwriting has been identified by his wife - Tejalben, who was examined before the Court vide Exh.46 as P.W. 6. Not only that, other documents Exhs.47 to 56 mentions about the particulars of the audio tracks on CD, which are also identified to be of the handwriting of the deceased. Not only that, the handwriting expert confirmed the handwriting on the suicide note as also other documents to be of the deceased. Taking this Court to the contents of the suicide note, she has submitted that the respondents - accused are responsible for commission of suicide by the deceased, and therefore, considering the evidence led before the Court, the respondents - accused could not have been acquitted from the charge for an offence under Section 306 of the Indian Penal Code. She has further submitted that the particulars with regard to 71 audio tracks, as mentioned in the written documents found alongwith the suicide note, which is in the handwriting of the deceased, discloses the particulars about the said tracks. From those documents, it is reflected that the accused were depriving the deceased of his legitimate right to inherit the property of his father and were managing all the properties in a manner that either the mother of the deceased or the sister of the deceased would inherit the same. For the purpose, they were pressurizing the deceased and thereby they have abetted the commission of suicide by the deceased, and therefore, she has further submitted that the order of acquittal, recorded in Page 4 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER favour of the respondents - accused, be quashed and set aside and they may be suitably punished.
[4.1] Learned Additional Public Prosecutor has taken me through the Record and Proceedings and the deposition of all the witnesses and has also drawn the attention of the Court to the material and important documents.
[5.0] The prosecution examined P.W. 1 - Dr. Harshadbhai Maganlal Sutaria, who has performed the Postmortem over the dead body of the deceased. He has confirmed that the cause of death is asphyxia due to hanging. He has clearly admitted that the deceased died because of hanging. The witness has clearly admitted in his cross examination that injuries noted in Column No.17 are because of act of hanging. Thus, the suicidal death of the deceased is not in dispute, which is confirmed by the Doctor, who is examined.
[5.1] P.W. 2 - Bhupendrakumar Natvarlal Dave, who happens to be the first informant while he was serving as second P.I. in Sector 21 Police Station, on the order of the Deputy Superintendent of Police, based on the order of the Sub Divisional Magistrate, Gandhinagar dated 06.01.2009, has registered the FIR against the respondents - accused, who are maternal Uncles of the deceased. He has proved Exh.24 - FIR. He has deposed that Accidental Death Case No.38 of 2008 was inquired into by P.I. Shri S.B. Trivedi and he reported to the Deputy Superintendent of Police vide report dated 04.05.2009 that the suicide committed by the deceased is not on account of harassment of the accused but after committing murder of his mother and sister, he might have realized that he would be Page 5 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER convicted by the Court, and therefore, perhaps the deceased committed suicide. It is further reported in the report, Exh.26, that there was some dispute between the deceased and his mother in respect of property. However, it is further reported in it that the wife of the deceased - Tejalben had never complained that because of the torture or cruelty inflicted by the accused to her husband, he committed suicide. In his deposition, the witness has referred about different correspondences and ultimately based on the report of the Sub Divisional Magistrate, the witness lodged the FIR against the accused named in the suicide note of the deceased. Since, inquiry into the Accidental Death Case was also with him, after examining those papers and considering the statements recorded during the course of it, they were made part of the investigation, which was registered as an offence at his instance. During the cross examination, he has produced the photocopy of the suicide note as also the suicide note in original, which was in sealed condition and opened before the Court, which was given Mark 'A'. Thereafter, from the muddamal articles, pages 1 to 10, which were in sealed condition were opened, which was found to be handwritten. The said papers were given Mark 'B'. One audio cassette was also seen by him, which was in sealed condition and on opening the seal it was found that it is in two pieces. The witness had to admit in his cross examination that it is only based on the order of the Sub Divisional Magistrate he had lodged an FIR on behalf the State. He had to admit that when statement of the wife of the deceased is recorded she had refused to give any complaint. The witness had to admit that two Officers had inquired into the Accidental Death Case and they did not find any offence made out in the said Accidental Page 6 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER Death Case.
[5.2] Shri Himatlal Gangaram Parmar - P.W. 3, was the Panch Witness to the inquest panchnama. Though the witness did not support the prosecution and declared hostile, when the witness was shown the suicide note at Mark 'A', he admitted that the said suicide note was seized by the Police in his presence. The request of the learned Additional Public Prosecutor to exhibit that suicide note, Mark A, was objected to on behalf of the accused on the ground that the inquest panchnama was drawn on 30.08.2008 and it does not bear any such date over it. As also Mark 'A' writing was not executed in his presence. However, it was tentatively exhibited at Exh.36 to consider the objection at the time of final arguments.
[5.3] Shri Krunal Rajnikanth Shah - P.W. 4, Panch Witness to the scene of offence panchnama was examined vide Exh.37. However, he did not support the case of the prosecution. Similarly, Shri Sanjay Kantilal Dabhi - P.W. 5, Panch Witness to the seizure of clothes of the deceased, did not support the case of the prosecution. However, nothing much turns on the deposition of those Panch Witnesses.
[5.4] The prosecution examined Tejalben Rikeshbhai Chauhan - P.W. 6, who happens to be the wife of the deceased. As such, she was not present when the incident of murders of mother-in-law and sister-in-law took place or even commission of suicide by her husband took place. In her deposition, she has stated that she had gone to Ahmedabad for the treatment of her daughter and she visited Dr. Amrish Parikh at Ahmedabad. When she returned back, she found Page 7 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER many people gathered near her house and through her aunt- in-law she came to know that her husband, mother-in-law and sister-in-law have been taken to Civil Hospital, who have died. Further, she has deposed that her aunt-in-law told that a suicide note was found in the pocket of her husband wherein both the accused, who happens to be the maternal Uncles, are named as persons responsible for his suicide. She has deposed that her husband felt all alone after the death of his father and his maternal Uncles time and again used to visit their house and used to quarrel with her husband over the property. She has admitted the handwriting of her husband on the suicide note Exh.36. She has also identified the signature of her husband on the suicide note. She has deposed that in Exh.36, it is mentioned that the accused are responsible for the death of her husband. In respect thereof, 71 audio recorded tracks on CD is said to be in the hand purse. The said papers, pages 1 to 10, found also bears the signature of her husband and they are in his handwriting. However, those pages were exhibited at Exhs.47 to 56 subject to objections to be decided at the time of arguments in the case. She has referred to the notice issued to her mother-in-law by her husband, which was a carbon copy having the signature of her husband, which was identified by her. She was shown certain documents pertaining to the Motor Accident Claim filed by her mother-in-law, her husband and sister-in-law. From the documents produced, it appears that there was some dispute with regard to joining her husband and sister-in-law as claimant in the Claim Petition. The accused appears to have taken side of their sister i.e. mother of the deceased and names of the deceased and his sister were removed from the title of the Claim Petition. However, the witness has deposed Page 8 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER that her husband applied to be joined as party claimant in that suit and the Court had passed that order also. Those documents were also shown to the witness and they were exhibited keeping open the right to object at the time of hearing of arguments by the parties. In the cross examination, she had admitted that the letters, which have been deposed to in the examination-in-chief, were seized from her house. During the course of cross examination, she was shown certain documents like notice issued by her husband to her mother-in- law, however, in the xerox copy of the notice, she has admitted that it bears signature of her husband, and therefore, the same was exhibited. The witness was cross examined on the issue of her earlier statement recorded by the Police pursuant to her application to the Police. She was also cross examined on the issue that she had stated before the Police that she does not wish to proceed against anyone as it has been settled between the parties. The witness had to admit that it was so stated in her statement that her husband had some dispute with her mother-in-law and sister-in-law in respect of the property after the death of her father-in-law and they used to quarrel. It is further admitted that pursuant thereto, Shri Ashok Jethwa and Shri Jawahar i.e. the accused used to pacify her husband as also her mother-in-law and sister-in-law not to quarrel on such issue. Though, she has explained that it was so stated because of some pressure. In her cross examination claimed that she does not remember whether she had so stated in her police statement that because of the dispute in respect of property, her husband had committed murder of her mother-in-law and sister-in-law and thereafter committed suicide because of fear of being punished. She had to admit that though her husband has Page 9 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER named his maternal Uncles - accused showing them responsible for the suicide of her husband, they are not responsible for the same as they were on the contrary pacifying her husband on one side and mother-in-law and sister-in-law on the other. She was in detail cross examined in respect of her earlier version about the suicide of her husband and the persons responsible for the same. As such, at the earlier point of time, by a written application, she had made allegation against the accused but in her statement recorded pursuant to that application, she had not held responsible anyone, much less the accused responsible. In short, either after commission of suicide by her husband or during nine months thereof, she had not complained about any of the persons, who is responsible for commission of suicide by her husband, though, at that time also, names of the accused reflected in the suicide note. Not only that, pursuant to her application, when her statement was recorded, there also she had not complained about any of the offence being committed by the accused. However, after registration of the offence, at the instance of P.I. concerned, pursuant to the order of the Deputy Superintendent of Police, she has changed her version.
[5.5] Shri Jaimin Rikesh Chauhan - P.W. 7 son of the deceased, who was aged about 14 years at the time of the incident, was examined by the prosecution but nothing fruitful comes on record, which may help the prosecution in this case.
[5.6] The prosecution examined - Bhanuben Chotalal Parmar - P.W. 8, who happens to be the mother-in-law of the deceased, to suggest whether there was some quarrel between the deceased, his mother and sister in respect of the Page 10 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER property. Though, she has not thrown any light over the responsibility of the accused for the alleged offence, she had to admit that the major portion, which is stated in the examination-in-chief, is not so stated before the Police. However, her deposition is not useful for determining the guilt or otherwise of the accused.
[5.7] The prosecution also examined Anilbhai Chotulal Parmar - P.W. 9, who happens to be the brother-in-law of the deceased and like earlier witness i.e. Bhanuben Chotalal Parmar, he also does not throw any light on the guilt or otherwise of the accused.
[5.8] Shri Narsinhbhai Somabhai Chauhan - P.W. 10 is the Panch Witness in whose presence police writer, Shri Ranjithsinh produced the muddamal i.e. three envelopes, one titled as suicide note of Rikesh Hasmukhbhai and another envelope contained 10 pages said to have been written by the deceased in his handwriting. The third envelope was containing transparent bag showing one audio cassette, which was seized in presence of the said Panch Witness. The said Panch Witness, in his cross examination, has admitted that he had acted as Panch Witness three to four times prior to this. He has admitted in his cross examination that the police writer Shri Ranjithsinh, who has produced the muddamal envelopes, was having his mobile number as he used to act as Panch with the said Police Station. He has admitted that the said envelopes were taken out from the cupboard, as stated in his examination-in-chief and it was found to be sealed pack. He has admitted in his cross examination that when the muddamal was opened there was no wax seal over it or panch Page 11 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER slip. He has admitted that he has not signed on any of the muddamal papers. He has admitted that no signature over the envelopes was obtained of the witness. He has admitted in his cross examination that even the cassette was also not signed by him nor it was sealed or it contained any panch slip.
[5.9] Shri Kishanbhai Lavjibhai Parmar - P.W. 11, is Panch Witness to the seizure of documents. Wife of the deceased has identified the handwriting and signature to be of the deceased on those documents seized. He had also acted as Panch Witness for witnessing the production of muddamal envelopes as deposed by P.W. 10 - Narsinhbhai Somabhai Chauhan. Shri Ramaben Gyansinh Ravat - P.W. 12, who happens to be the neighbour of the deceased has not stated anything in respect of the incident at all.
[5.10] Shri Kajumiya Mithamiya Saiyed - P.W. 13, who happens to be the PSO, on 03.03.2012 in Sector 21 Police Station, registered the FIR at 6:30 p.m. forwarded by P.I. Shri Dave. Thereafter, he had handed over the investigation into the same to P.I. Shri R.R. Rathwa. After registering the FIR, he had forwarded a copy thereof under Section 154 of the Code of Criminal Procedure, 1973 to the competent Court. Except that, nothing much is done by the said witness.
[5.11] The prosecution examined Shri Gunwantbhai Harkhabhai Algotar - P.W. 14, the then first PSI of Sector 21 Police Station as on 30.08.2008. He deposed that while he was on bandobast duty, he received a phone call by PSO that in Sarvodaya Society some quarrel has taken place and one person is injured by his neck, and therefore, he reached the Page 12 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER place and inquired from the persons who had gathered there and he found that the deceased had committed murder of his mother and sister and thereafter he went inside and locked himself, however, on breaking open the lock, he was found hanging. Thereafter, he had inquired into the incident and recorded the statements of the persons assembled there. He had drawn the inquest panchnama, after obtaining the permission from the Executive Magistrate and while inquest panchnama was drawn, one suicide note found from the pocket of his shirt, which is at Exh.36. Thereafter, he had arranged to send the dead body to Civil Hospital for performing Postmortem over it. He has deposed that he has recorded the statement of his wife also. The bed sheet with the help of which the deceased was found hanging was sent to the FSL. Considering the report of the FSL and the Postmortem note, it was confirmed that he had died because of hanging, and therefore, he had sent all the papers for approval of accidental death. The witness was also cross examined in detail as immediately after commission of suicide the inquiry revealed that only against deceased there was disclosure of cognizable offence and nothing more. The witness had to admit that the suicide note was seized under panchnama but it was not kept covered under a seal. He has admitted that he has submitted the report after inquiring into the accidental death that no offence is made out. In the cross examination, he has admitted that on 30.08.2008, statement of Tejalben - wife of the deceased came to be recorded wherein she has stated that after the death of her father-in-law instead of her husband's name in the nomination, name of her sister-in-law was entered and because of that reason, her husband had dispute with her mother-in-law. The witness has admitted, in the statement Page 13 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER dated 31.08.2008 Tejalben - wife of the deceased stated that in respect of the property, her husband used to be under stress and because of that reason, he has resorted to this incident. The witness had admitted that, in the statement dated 31.08.2008, Tejalben had stated that pursuant to the dispute with regard to the property her husband has murdered her mother-in-law and sister-in-law and because of fear of being punished for the same as also he will not be able to show his face to the Society, he committed suicide. As such, in the cross examination of this witness, it has been revealed that no one was responsible for commission of suicide of the deceased. As such, nothing was alleged even by the wife of the deceased, though her husband in the suicide note held responsible the accused for commission of suicide by her husband.
[5.12] Shri Chanabhai Chaganji - P.W. 15 is examined, who has received the muddamal in respect of clothes of the deceased produced through the Police Constable, Shri Ratanlal under the panchnama. Alongwith the said clothes, one piece of bed sheet was also seized. Except that, the said witness had not carried out anything.
[5.13] The prosecution examined Shri Bhadreshkumar Sevantilal Shah - P.W. 16, who was the Assistant Examiner of Question Document. He opined on the handwriting on the suicide note as also 10 pages hand written found from the hand purse comparing with the natural writings of the deceased. He opined that the disputed writing and signatures on the suicide note and the 10 pages are written by the writer of natural documents at N1 to N5, NR/1 to NR/5 at Exhs.64 to Page 14 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER 68 and they are by the very same writer. In short, it was opined that the handwriting and signature found over the suicide note and other handwritten papers written by the deceased matches while comparing with his natural writing and signature. Though the witness was cross examined on behalf of the accused, nothing fruitful could be elicited from it, which may lead the Court to disbelieve the witness.
[5.14] Shri Rameshbhai Ramabhai Rathwa - P.W. 17, who was serving as P.I. at Sector 21 Police Station on 03.03.2012 was entrusted with the investigation in respect of the offence registered as C.R. No.45 of 2012, pursuant to the FIR registered. After registration of the offence, the witness recorded the statements of the wife and son of the deceased as also other witnesses. Having taken over the investigation into the offence, he had collected the audio cassette as also other documents seized while inquiry was conducted pursuant to the Accidental Death Case. One paper envelope, Mark 'C', covered and sealed with stapler as also three wax seals was examined but it was broken. While opening the said envelope, one CD was found to be in three broken pieces. Thereafter, he had carried out the investigation, recorded the statements of certain witnesses and executed the panchnama pursuant to the investigation. During the course of investigation, he had seen the suicide note alongwith other papers found from the hand purse alleged to be written in the handwriting of the deceased alongwith the documents containing his natural writing sent to the FSL for the purpose of opinion on the handwriting and signature thereof. After receipt of the report from the FSL with regard to the handwriting, it was kept alongwith the papers of the investigation, which was produced Page 15 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER by him at Exh.121.
[5.15] Shri Vinubhai Chimanbhai Patanwadia - P.W. 18 was examined by the prosecution, who had arrested the accused and submitted the charge-sheet against them in the Court of law. As almost investigation was concluded before he was entrusted with it and having found that the accused are required to be arrested and sent for trial, he submitted the charge-sheet. He has identified the accused before the Court also. He has admitted in the cross examination that in the present case, except filing of the charge-sheet and arrest of the accused, he has not recorded the statement of any of the witnesses. He has admitted that the statement of the witnesses, recorded by P.I. Shri Rathwa, while investigation was with him. He had kept with the papers of investigation only the statement of witnesses found necessary to be the part of charge-sheet.
[5.16] Based on the aforesaid evidence, produced by the prosecution and hearing the parties, the learned trial Judge has recorded the order of acquittal, which is challenged before this Court by way of Appeal, and therefore, the present application seeking leave to appeal is preferred against the judgment of acquittal.
[6.0] Keeping in mind the scope of interference in an order of acquittal, I have considered the depositions of the witnesses as also the documents produced and proved by the prosecution.
[6.1] Though, at the relevant time, the suicide note as Page 16 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER
also other documents found from the hand purse of the deceased were seized and Accidental Death Case was registered by the police, till 29.05.2009 i.e. nearly about 9 months, no complaint of any such harassment was alleged by the wife of the deceased. Not only that, after giving an application on 29.05.2009, the wife of the deceased has also entered into a written compromise with the accused dated 13.11.2009, and therefore, she had informed the concerned police that she did not want to initiate any proceedings against anyone in respect of the death of her husband. Over and above that, the said facts were communicated in writing dated 19.10.2011 to the Police, and therefore, the fact remains that the near relatives of the deceased were never aggrieved, if at all any offence is committed, in view of the settlement arrived at between them. However, that may not lead to passing an order of acquittal in favour of the respondents - accused but the fact remains that the wife of the deceased had in writing informed the Police that she does not want to initiate any proceedings against anyone. In her deposition before the Court, she has stated that the accused, being the maternal Uncles of the deceased, interfered with the property to be inherited by her husband of her father-in-law. She has further deposed that the accused insisted that the deceased had no right over the property of his father and because of that reason her husband was living in stress. Even considering the contents of the suicide note, except the fact that the accused is responsible for suicide of the deceased, nothing further is mentioned in the said note.
[6.2] As such, the charge against the accused for an offence under Section 498A of the Indian Penal Code is Page 17 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER surprising. The accused happens to be the maternal Uncles of the deceased. According to the case of the prosecution, because of the pressure and cruelty inflicted, the deceased, who is the nephew of the accused, committed suicide. It is not the case of the prosecution that the accused, being the relative of the deceased, subjected witness - Tejalben wife of the deceased to cruelty. Thus, invoking Section 498A of the Indian Penal Code, that too, for the suicide committed by the husband and in absence of any material that the wife of the deceased was subjected to cruelty or harassment by the accused, they could not have been prosecuted or charged for that offence.
[6.3] The center point for considering the guilt or otherwise of the accused is the suicide note, Exh.36, as also handwritten documents, pages 1 to 10 found from the hand purse of the deceased. The contents of the suicide note is as under:
"I, the undersigned, Rikesh Hasmukhlal Chauhan, hereby inform that because of the dispute in respect of the property to be inherited of my father, I remain under mental stress and because of that reason I have murdered my mother and sister and for my death my maternal Uncles, Shri Ashok Jethwa and Shri Jawahar, are responsible and in respect thereof 71 recorded audio track on CD and the complaint is kept in my hand purse."
sd/-
Rikesh Hasmukh Chauhan
Page 18 of 22
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R/CR.MA/13824/2019 ORDER
[6.4] The other 10 pages found to be in writing alongwith
the complaint as narrated in the suicide note contains only his grievance. In 71 audio tracks, he has not written the contents of the audio tracks or the conversations recorded in it. He has referred about a particular audio track in respect of instigation of one of the accused i.e. Ashok Jethwa to his mother to be against him and in respect of nomination in the property to be made of his sister. The said particulars mentioned by him is not supported by any audio cassette or CD as claimed by the prosecution or any conversation recorded in it and it is also not transcribed and seized under the panchnama. Not only that, the said CD or cassette is not forwarded to the FSL for retrieving the conversation recorded in it and that too between whom after having the voice samples of the deceased or of the accused is said to have been in between them, as claimed in handwritten 10 pages by the deceased. Thus, neither the suicide note nor the handwritten 10 pages proves that either of the accused has instigated the deceased to commit suicide or intentionally aided by any such act for commission of suicide by the deceased. Though, the accused are held to be responsible for the act of suicide by the deceased in a suicide note, the said responsibility attached to them by the deceased is not supported by any other material. At any rate, the prosecution has failed to establish that in any manner, the accused can be said to have abetted the commission of suicide by the deceased. The accused might have taken side of the mother of the deceased as they are real brothers to her to see that she may live comfortable life after the accidental death of her husband. That can never be said to be an act of instigation or intentional aiding, that too, to the commission of suicide by Page 19 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER the deceased. On the contrary, considering the first version of the wife of the deceased, it is very clear that no one is responsible for commission of suicide by the deceased but the deceased himself. According to the deposition of the witness - Tejalben - wife of the deceased, it is clear that because of dispute with her mother-in-law and sister-in-law, deceased used to remain under stress and he has committed suicide under fear that he may not be able to face the Society after committing murder of his mother and sister, and therefore, he might have committed suicide. Thus, considering the suicide note itself or 10 pages handwritten notes, which is not a transcript of audio tracks but his own conclusion to the act of the accused, in absence of either valid transcripts of the conversations recorded in the audio track in the voice of the accused and the deceased or any report of scientific nature to support that , it can never be concluded that the deceased was ever instigated or intentionally aided to commit suicide by the accused, and therefore the accused cannot be said to have been abetted the commission of suicide by the deceased. The deposition of witness - Tejalben, as referred to hereinabove, has to be considered alongwith certain admissions in the cross examination to prove contradiction with her earlier statements recorded by the authority prior to the FIR.
[6.5] Assessing the deposition of Tejalben - wife of the deceased, it is clear that on the date of commission of suicide by her husband and on the next day, she had no complaint against any one. However, after about nine months, she had given an application to the Police pointing fingers towards the accused as their names reflected in the suicide note to be the persons responsible for commission of suicide by her husband.
Page 20 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020R/CR.MA/13824/2019 ORDER However, pursuant to that application, when her statement was recorded she has refused to register any complaint against anyone as in a heat of moment she had alleged the offence against the accused by way of an application. The prosecution has failed to establish that the audio tracks were recorded over the CD or cassette. The suicide note itself suggest that the audio tracks were recorded over CD, which was kept in his hand purse. However, what is seized, stated to be the cassette. Not only that, when the envelope containing cassette/CD was opened, it was found to be in pieces, and therefore, even if that cassette or CD containing audio tracks to be in the voice of the deceased on one hand and the accused on the other, it was unable to be retrieved. At the same time, no conversation in between them was transcribed either by the deceased or by the prosecution itself. Thus, there remains only suicide note, which holds the accused responsible for commission of suicide, whereas there is no other evidence brought on record by the prosecution suggestive of the fact that they have instigated the deceased to commit suicide or intentionally aided for commission of suicide by the deceased. On the contrary, the evidence led by the prosecution reflects that out of fear of not being able to show his face, after committing murder of his mother and sister, he has committed suicide.
[6.6] Considering the overall prosecution case, no different view other than what is taken by the trial Court is possible. At the same time, even if two views are possible, while considering the acquittal appeal under the appellate jurisdiction, I am unable to take a different view than that is taken by the trial Court. I find no perversity or illegality even Page 21 of 22 Downloaded on : Sun Jun 14 21:35:13 IST 2020 R/CR.MA/13824/2019 ORDER after re-appreciating the evidence brought on record by the prosecution, and therefore, no interference is called for. Hence, the leave to Appeal filed by the State is hereby rejected. The order of acquittal dated 15.04.2019 passed by the learned 3rd Additional Sessions Judge (Ad hoc), Gandhinagar in Sessions Case No.78 of 2012 whereby the respondents - accused have been acquitted of all the charges levelled against them is hereby confirmed.
Criminal Appeal No.1466 of 2019 In view of rejection of the leave to Appeal, the Appeal stands dismissed.
Record and Proceedings be remitted to the
concerned trial Court.
(UMESH A. TRIVEDI, J.)
siji
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