Gujarat High Court
The State Of Gujarat vs Jayeshbhai Lakhabhai & on 25 March, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
THE STATE OF GUJARAT....Appellant(s)V/SJAYESHBHAI LAKHABHAI R/CR.A/2264/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2264 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ THE STATE OF GUJARAT....Appellant(s) Versus JAYESHBHAI LAKHABHAI & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR HK PATEL, LEARNED ADDITIONAL PUBLIC PROSECUTOR for the Appellant(s) No. 1 MR JV VAGHELA FOR MR RJ GOSWAMI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 25/03/2013 ORAL JUDGMENT
This appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 14.07.2004, rendered by the learned Second Extra Assistant Judge, Veraval, in Sessions Case No. 36 of 2001, whereby both the respondents (original accused) have been acquitted of the offences punishable under Sections 504, 506(2), 498-A, 306 and 114 of the Indian Penal Code.
The case of the prosecution as narrated in the complaint is that the marriage of Sheetalben alias Savitaben, daughter of the complainant Radhaben, took place with respondent No.1 on 27.02.2001. The day after the marriage, as per the local custom, the deceased went to her parental home. On the next day, respondent No.1 came to the house of the complainant to pick up the deceased and take her to another village, where they had both been invited. Both the deceased and respondent No.1 departed together from the house of the complainant. As per the case of the prosecution, the deceased informed the complainant that on the first night of her wedding, her husband did not call her. He told the deceased that he was in an illicit relationship with respondent No.2, who was residing near his house. He also told the deceased that he had not wanted to marry her but was forced to do so, by his father. According to the recital in the complaint, the deceased told respondent No.1 not to maintain illicit relations with respondent No.2, upon which respondent No.1 inflicted kick and fist blows upon the deceased. The next morning, respondent No.2 told the deceased that she was maintaining an illicit relationship with respondent No.1, which is known to the whole village, therefore, the deceased should not say anything to respondent No.1 as she has just come recently. It is further the case of the prosecution that the deceased told respondent No.2 that respondent No.1 is her husband and she could say anything to him, upon which respondent No.2 started abusing the deceased. The complainant consoled the deceased by saying that things will improve soon, as only two days have elapsed after the wedding and that the deceased should maintain courage. Thereafter, the deceased was sent back to her matrimonial home at village Mandorana. It is stated in the complaint that on 04.03.2001, at about 9:30 PM, the son of the complainant telephoned the deceased who told him to come and take her away from the matrimonial home, immediately. This information was conveyed by him to the complainant. Thereafter, at about 3:30 AM, respondent No.1 telephoned one Patel Naranbhai Akbari and informed him that the deceased had gone away from the house. PW-3, father of the deceased, then telephoned respondent No.1 to enquire about the deceased. Thereafter, PW-3 Rambhai Dhanabhai, PW-2- Dhirubhai Rambhai, brother of the deceased, Balu, another brother of the deceased, and Bhupat, brother of the complainant, went to Village Mandorana. The next morning, after making enquiries, they came to know that the dead body of Savita (deceased) was found in a well belonging to Patel Devraj Kala. Her ornaments were found on the margin of the well. According to the complainant, upon hearing of the death of her daughter, she fainted and remained unconscious for about three days. Thus, the case of the prosecution is that the deceased committed suicide as she could not bear the fact that her husband respondent No.1, had illicit relations with respondent No.2, due to which he did not like her and had beaten her..
The complaint was registered vide I-C.R. No.16 of 2001, with Talala Police Station. Pursuant thereto, the investigative machinery was set into motion. During the course of the investigation, the inquest was held on the dead body of the deceased, and an autopsy was performed. The Panchnama of the scene of offence was prepared and statements of witnesses were recorded. At the end of the investigation, as sufficient incriminating material had been found against the respondents, they came to be charge-sheeted before the learned Judicial Magistrate, First Class, Veraval. As the offence under Section 306 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Veraval, (hereinafter referred to as the Trial Court ) where it came to be registered as Sessions Case No.36 of 2001.
The Trial Court framed necessary charges against the respondents which were read over and explained to them. They denied their guilt and claimed to be tried.
In support of the prosecution case, only three witnesses have been examined. Fifteen documents were produced as evidence.
After recording the evidence of the prosecution witnesses, the Trial Court explained to the respondents the circumstances appearing against them in the evidence of the prosecution and recorded their statements under Section 313 of the Code of Criminal Procedure, 1973. The response of the respondents was that of denial.
7. At the end of the trial, after appreciation of the evidence on record, the Trial Court recorded findings of acquittal in favour of the respondents, on the ground that the circumstances linking them to the commission of the offences for which they are charged have not been proved and the prosecution has remained unsuccessful in proving its case beyond reasonable doubt.
8. Mr.H.K. Patel, learned Additional Public Prosecutor for the appellant, has submitted that the Trial Court has not properly appreciated the evidence on record, especially the deposition of PW-1 complainant and mother of the deceased. That PW-1 has stated that the deceased had come to her parental house just two days after the marriage and told that on the very first night her husband had beaten her up due to his illicit relationship with respondent No.2, who had also abused her. It is further submitted that the marriage span of the deceased was only six days, therefore, a strong presumption against respondent No.1 would arise as per Section 113-A of the Evidence Act. That as there is sufficient evidence on record regarding harassment meted out to the deceased by the respondents, leading to her suicide, the impugned judgment and order may be quashed and set aside and the appeal allowed.
9. Opposing the prayers made by the learned Additional Public Prosecutor, Mr. J.V. Vaghela, learned advocate for Mr. R.J. Goswami, learned counsel for the respondents has submitted that the judgment and order of the Trial Court is just and proper. That the evidence on record has been minutely and correctly scrutinized by the Trial Court. It emerges therefrom that there are serious contradictions and discrepancies in the evidence of the complainant herself, as compared to the narration in the complaint. It is further submitted that the father and brother of the deceased, namely, PW-2 and PW-3 have not supported the case of the prosecution and have turned hostile, therefore, the narration in the complaint is uncorroborated in all material purposes. That the Trial Court has given cogent reasons for acquittal of the respondents and as per the settled legal position, a finding of acquittal, which is possible and probable, may not be disturbed by this Court.
10. Having heard learned counsel for the respective parties, it would be fruitful to notice the salient features of the evidence led by the prosecution.
11. PW-1 is the complainant and the mother of the deceased. In her complaint, she states that the deceased told her on the very next day of the marriage when she had come to her parental home, that respondent No.1 had beaten her and caused her harassment due to his illicit relationship with respondent No.2. In her deposition at Exh.9, this very witness states that, she does not know the reason for the death of her daughter. This witness further states that respondent No.1 used to beat the deceased but has not stated that this beating was due to the illicit relationship with respondent No.2. On the contrary, this witness states that the deceased did not tell her anything further. The same evening, respondent No.1 came to pick up the deceased from the parental home and took her to the matrimonial home. PW-1 categorically states in her cross-examination that the deceased wanted to go to her parents house with her brother Ramesh and upon being told by respondent No.1 that she could go on the next day, she felt hurt. This witness has given a new version of the story in her deposition by stating that she was informed by some person that respondent No.1 had killed her daughter and thrown her into the well. However, she did not remember who told her this. This aspect has not been stated by her in the complaint.
12. PW-2 is Dhirubhai Rambhai, brother of the complainant. His deposition, at Exh.11, further demolishes the case of the prosecution. This witness denies ever having gone to the house of the deceased after her marriage. He states in his examination-in-chief that a telephone call was made from Village Mandorana upon Patel Hareshbhai, informing that the deceased had run away from her home. The next morning, his father and uncle went to the house of the deceased.
The father of respondent No.1 informed them that respondent No.1 and the deceased have run away. Thereafter, he got the news that the deceased had jumped into a well in the field. This witness denies having gone to the scene of the offence and states that he went home on hearing the news.
PW-2 further deposes that three days after the wedding of the deceased, she came to his house but denies any knowledge of the conversation that took place between the deceased and his wife. He denies any knowledge regarding the neighbours of the deceased. This witness states that he does not know the reason for the death of the deceased. This witness has been declared hostile by the prosecution. In his cross-examination, this witness denies having stated before the police that respondent No.1 had an illicit relationship with Dhirajben (respondent No.2) who lives in his neighbourhood, due to which the deceased committed suicide. He further states that he does not know anything regarding the illicit relationship between respondent No.1 and respondent No.2.
13. PW-3 is Rambhai Dhanabhai, father of the deceased. His deposition is at Exh.12. This witness further erodes the case of the prosecution. He states that he did not go to the house of the deceased but, after a phone call was received at the place of Hareshbhai, he went to the house of respondent No.1 at village Mandorana, where he was informed that the dead body of the deceased was found in a well in the field. This witness states that he does not know the reason for the death of his daughter. He states that after her marriage, the deceased and respondent No.1 had come to their place for a meal and at that time, she had never informed either him or her mother PW-1, that she was facing any harassment at her matrimonial home. This witness has been declared hostile. In his cross-examination, he denies that the deceased came to her parental home and told them that respondent No.1 was maintaining an illicit relationship with respondent No.2, due to which he did not like her, and that was the reason for her suicide.
14. The Postmortem Report is at Exh.23. The cause of death is due to the injuries sustained by the deceased to her brain. Even though PW-1, Radhaben, mother of the deceased, has tried to introduce a new version in her deposition that she was informed by somebody that the deceased was killed by respondent No.1, who had thrown her body into the well, there is absolutely no material on record in support of this theory. In fact, in her cross-examination, PW-1 states that she does not know who gave her this information.
15. From the above, it can be said that there is no doubt regarding the fact that the deceased died a suicidal death by jumping into a well.
The Trial Court has found, after appreciating the evidence, that the material on record, especially the oral evidence of the witnesses, does not prove that there was an illicit relationship between respondent No.1 and respondent No.2, leading to mental torture to the deceased and being the cause of her committing suicide. The version in the complaint is falsified by the evidences of PW-2 and PW-3, brother and father of the deceased. PW-1, the mother of the deceased, admits in her cross-examination that the deceased wanted to go with her brother and when respondent No.1 told her that she could go the next morning, she felt hurt. This indicates that the deceased was of a sensitive nature and could have taken the extreme step for the reason that her husband refused to let her go with her brother when she wanted to. The aspect regarding the beating given by respondent No.1 to the deceased, and the abuses given by respondent No.2, have not been proved at all. It has come in the evidence of PW-1 that the deceased had come home after her marriage as per the local custom, and had left the next day with respondent No.1 who came to pick her up. Thereafter, the deceased and respondent No.1 went to village Surva where they have been called for a meal and later on to village Mandorana. On the next day, the deceased and respondent No.1 went to Talala where they had been invited, after which they went to Surva and back to village Mandorana. This shows that respondent No.1 had taken the deceased to the houses of his relatives, where they had been invited, as is customary after the wedding. This rules out the possibility of any instigation by the respondents to the deceased, of a nature strong enough to drive her to commit suicide.
17. As per the settled position of law, to bring home a charge under Sections 107 and 306 of the Indian Penal Code, there must be some evidence on record that soon before the incident, there was harassment or torture of an extreme nature by the respondents to the deceased. Further, there has to be some evidence to show that soon before the suicidal death, some incident had taken place wherein the deceased was prompted, instigated or abetted to commit suicide. Having scrutinized the evidence adduced in the present case, it is found that there is no material on record to show that before the deceased committed suicide, any such incident had taken place which instigated or abetted her to take the extreme step.
18. The evidence led by the prosecution is absolutely unsatisfactory in this regard. This Court, therefore, finds itself in full agreement with the view taken by the Trial Court in acquitting the respondents.
19. In an appeal against acquittal, the Court would be slow to interfere with an order of acquittal, if the view taken by the Trial Court is possible and probable on the basis of the evidence on record. In the present case, not only does this Court concur with the view taken by the Trial Court, it also finds after independent scrutiny of the record and appreciation of the evidence, that the prosecution has not been able to establish any link of the respondents with the commission of the alleged offence. The respondents, therefore, have rightly been given the benefit of doubt by the Trial Court.
20. For the aforestated reasons, the appeal fails, and is dismissed.
(SMT. ABHILASHA KUMARI, J.) piyush Page 15 of 15