Gujarat High Court
State Of Gujarat vs Sureshkumar Hirabhai ... on 2 March, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.A/539/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 539 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
SURESHKUMAR HIRABHAI PRAJAPATI....Opponent(s)/Respondent(s)
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Appearance:
MS REETA CHANDARANA, APP for the Appellant(s) No. 1
HL PATEL ADVOCATES, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/03/2017
ORAL JUDGMENT
1. The State is in appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 ("the Code" for short) to question the legality and validity of the judgment and order of acquittal dated 09.01.2007 passed by learned Additional Sessions Judge, Panchmahal at Godhara in Sessions Case No.147 of 2006, whereby and whereunder the respondent came Page 1 of 9 HC-NIC Page 1 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT to be acquitted of the offences punishable under Sections 498(A) and 306 of the Indian Penal Code.
2. The prosecution case in brief is that the deceased- Jyotsnaben, wife of the respondent-accused, was sister of the complainant-Laljibhai Hirabhai Prajapati. It is alleged that the deceased was physically and mentally harassed and asked to bring dowry by the respondent- accused. As the physical and mental torture was beyond the control of the deceased, she committed suicide by pouring kerosene on herself at the resident of the accused on 22.04.2006 at about 21.30 hours. She was severely burnt and died during the treatment on 24.04.2006. In this way the respondent-accused gave the physical and mental torture and demanded for dowry from the deceased, so also, inspired the deceased to commit suicide and thereby committed offence punishable under Sections 498(A) and 306 of the Indian Penal Code. The complaint was lodged by the brother of the deceased and same was registered being I-C.R. No.14 of 2006 before the Khanpur Police Station for the aforesaid offence punishable under Sections 498(A) and 306 of the Indian Penal Code. The dying declaration was recorded during the treatment, statements were recorded, panchnama was drawn, postmortem of the body of the deceased was conducted and muddamal collect during the Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT investigation was sent to F.S.L. and upon completion of the investigation, sufficient evidence to link the accused with the crime was found, he was charged sheeted for the aforesaid offences.
3. The Charge, Exhibit-2 was framed and read over and explained to the respondent. He pleaded not guilty and claimed to be tried in order to bring home the guilt to the respondent.
4. The learned Trial Judge upon hearing the learned A.P.P. and learned advocate for the defense and after analyzing the oral and documentary evidence, record and findings that the prosecution has failed to prove the case against the respondent beyond reasonable doubt, and therefore, acquitted them under Section 235(1) of the Code, by his impugned judgment and order dated 09.01.2007.
5. The appellant-states being aggrieved by and dissatisfied with the impugned judgment and order dated 09.01.2007 has preferred this appeal.
6. I have heard Ms. Reeta Chandarana, learned APP for the appellant-State and Mr. Maharshi Patel, learned advocate for Mr. H.L. Patel, learned advocate for the respondent.
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7. Ms. Reeta Chandarana, learned APP submits that the material witnesses i.e. the complainant, mother, sister and maternal uncle and maternal aunt of the deceased-Jyotsanaben have supported the prosecution case. It is her submission that it emerges from the evidence with this material witnesses that the deceased was being harassed by the respondent for bringing dowry, and therefore, she intended her life i.e. eleven month of the marriage. In support of her submissions, she has relied upon decisions of the Supreme Court in the case of Mangat Ram v. State of Haryana, (2014) 12 SCC 595 and Bakshish Ram and another v. State of Panjab, (2013) 4 SCC 131, and Balram Prasad Agrawal v. State of Bihar and others, (2009) 9 SCC 338. She, therefore, urges that the appeal may be allowed and the respondent may be convicted.
8. Mr. Maharshi Patel, learned advocate for Mr. H.L. Patel, learned advocate for the respondent has supported the impugned judgment and order. He submits that the Exhibit-36-dying declaration of the deceased exonerated the respondents inasmuch as the deceased herself has stated in the dying declaration that the flames she got fire while boiling the milk on stove. It is his further submissions that the evidence of brother (complainant), mother, sister and uncle have given the evidence contrary to the Exhibit-46-FIR.
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According to her submission, the conduct of respondent is very relevant because he had tried to douse the flames and in the process himself suffered injuries. It is, therefore, submits that this conduct itself suggest that there was no harassment to the deceased on account of dowry demand. In support of his various contentions, he has relied upon the decision of the Supreme Court in the case of Bhanuben and another v. State of Gujarat, (2015) 10 SCC 390, and Bhairon Singh v. State of Madhya Pradesh, (2009) 13 SCC 80.
9. The marriage between the deceased-Jyotsnaben and the respondent was solemnized around eleven months before. The unfortunate incident which happened on 22.4.2006. As per the prosecution case, the deceased-Jyotsnaben committed suicide by setting flame upon herself on 24.4.2006 on account of dowry demand by the respondent. A Complaint in respect of this incident was lodged by Laljibhai Hirabhai Prajapati (P.W.3-brother of the deceased).
10. The charge was framed against the respondent Exhibit-2. The prosecution examination as many as 20 witnesses has also relied upon the documentary evidence.
11. In my opinion, the evidence of Laljibhai Hirabhai Prajapati (P.W.3-brother of the deceased, original Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT complainant), Gangaben Hirabhai Prajapati-(P.W.4- mother of the deceased), Parshottambhai Lavjibhai Prajapati-(P.W. 5-maternal uncle of the deceased), Maganbhai Lavjibhai Prajapati-(P.W.6-maternal uncle of the deceased), Sukhiben Parshottambhai Prajapati- (P.W.7-maternal aunt of the deceased), Ritaben Narendrabhai Prajapati-(P.W.8-sister of the deceased) are relevant.
12. It was a categoric case of the prosecution against the respondent in Exhibit-46 FIR lodged by P.W.3 that the marriage between the respondent and the deceased was going very well for initial four months, but, therefore, the respondent started frequent asking the deceased to bring money from her matrimonial home. Accordingly, the deceased had taken Rs.20,000/- for giving it to her husband. Despite this, the respondent was asking more money from his sister but who did not bug to it and therefore, bickering started in their house and respondent started beating her sister.
13. The deceased used to share this with him whenever she used to visit her matrimonial home. The evidence of the aforesaid material witnesses requires to examine in the contest of aforesaid material allegations made in the FIR. If the oral evidence of the aforesaid witnesses is analyzed, it emerges that according to Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT P.W.3- Laljibhai Hirabhai Prajapati-brother of the deceased had accompanied the deceased to give Rs.20,000/- to the respondent, and ask him to keep cool and told him if there was any fault on the part of his sister i.e. the deceased. All the material witnesses constant in their evidence before the Court in this regard which is diametrically at variance what is stated in Exhibit-46 FIR.
14. Indisputably, the unfortunate incident had happened on 22.4.06 whereas the complaint was lodged by P.W.3 i.e. after four days. No explanation is explained either in Exhibit-46 FIR or in the oral evidence about the delay in lodging the complaint. It further emerges from the evidence that the deceased was taken to Civil Hospital, Ahmedabad immediately after the incident by the respondent. It further appears from the evidence of P.W.15-doctor Sumitra that the respondent himself had suffered burns injuries while trying to save the deceased. It appears that on being admitted in the Civil Hospital the police was informed to interns request to Executive Magistrate to record the dying declaration of the deceased. Accordingly, Exhibit- 31-Dying Declaration was recorded by the Executive Magistrate after obtaining certificate from the Doctor that the deceased was conscious and able to speak. It is the deceased herself stated in the Dying Declaration Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT that she was boiling the milk on the stove and while trying to put out the flame she caught fire. On being asked whether she had tried to commit suicide or whether some one had instigated her to commit suicide, she has replied in the negative. The documentary evidence and the oral evidence is at variance with the prosecution case as contained in Exhibit-46-FIR, and therefore, the Dying Declaration assumes importance. It is thus eminently clear from the evidence that prosecution has failed to prove beyond reasonable doubt that the deceased committed suicide due to cruelty by respondent.
15. I am of the view that the learned trial Judge has assigned cogent reasons after analyzing and discussing the evidence made available on record by the prosecution. I am in full agreement with the reasons assigned by the learned trial Judge. In my view, the impugned judgment and order of acquittal does not suffer any illegality or perversity warranting interference in this appeal.
16. For the foregoing reasons, the present appeal fails and is hereby dismissed.
17. Record and Proceedings be transmitted to the Tribunal forthwith.
Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 03:42:11 IST 2017 R/CR.A/539/2007 JUDGMENT (A.G.URAIZEE,J) Manoj Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 03:42:11 IST 2017