Gujarat High Court
State Of Gujarat vs Thakore Chaturji Punjaji & ... on 24 July, 2014
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/974/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 974 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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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 No
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 ? No
5 Whether it is to be circulated to the civil judge ? No
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STATE OF GUJARAT....Appellant(s)
Versus
THAKORE CHATURJI PUNJAJI & 4....Opponent(s)/Respondent(s)
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Appearance:
MR.K.L.PANDYA, APP, for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2 , 4 - 5
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 3
MR UMANG H OZA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 3
UNSERVED-EXPIRED (R) for the Opponent(s)/Respondent(s) No. 2 , 4 - 5
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 24/07/2014
ORAL JUDGMENT
1. The present appeal is filed by the appellantState under section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C, Page 1 of 10 R/CR.A/974/2000 JUDGMENT 1973) being aggrieved and dissatisfied with the judgment and order dated 01.08.2000 passed by the learned Sessions Judge, Mehsana, in Sessions Case No.306 of 1999, whereby the respondentsoriginal accused have been acquitted of the charges levelled against them under Sections 306, 498A and 201 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short). So far as charge under Section 176 of the IPC is concerned, the respondent No.1 was held guilty and was ordered to pay fine of Rs.500/, failing which, to undergo sentence for a period of 15 days.
2. Short facts of the case are that respondent No.1original accused No.1 is the husband of deceasedAmrutben, respondent Nos. 2 and 3 original accused Nos.2 and 3 are the elder brothersinlaw (Jeth) of the deceased, respondent No.4original accused No.4 is the fatherinlaw of the deceased and respondent No.5original accused No.5 is the mother inlaw of the deceased. It is the case of the prosecution that marriage of the sister of the complainantBharatji Ganeshji Thakore was solemnized with respondent No.1original accused No.1 before six years of the alleged incident. Out of the said wedlock, they were blessed with two children. Initial marriage life of the deceased was smooth, however, subsequently, the respondents started taunting the deceased saying that she had not brought anything from her parents, and thereby, used to beat her and gave physical and mental torture and therefore, two months prior to the alleged incident, the deceased went to her parental home and complained her family members regarding mental and physical torture being given by her inlaws regarding dowry. As the deceased did not go back to her matrimonial home, one Mr. Abhuji Thakore and one Mr.Prajapati alongwtih the husband of the deceased went to deceased's home to take the deceased back. The said persons convinced the deceased and her family members and gave assurance that henceforth, no such illtreatment would be given to the deceased and hence, she returned to her matrimonial home. Thereafter, on Page 2 of 10 R/CR.A/974/2000 JUDGMENT 25.06.1999, the complainant received a telephonic message that deceased had consumed poisonous drug and died and her funeral ceremony was also completed. Thus, as alleged, since the deceased was constrained to commit suicide due to harassment and torture being given by the respondentsaccused, the complaint had been filed by the complainant against the respondentsoriginal accused before the Vadnagar Police Station for the offences punishable under Sections 498 A, 306, 201, 176, read with Section 34 of the IPC and the respondents accused were arrested on 29.06.1999.
2.1. At the end of investigation and on the basis of material collected against the accused, since a prima facie case was made out against the accused, a chargesheet was filed against them. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Vadnagar committed the case to the Court of Sessions at Mehsana for trial. Thereafter, the charge was framed against the accused, which was read over to them. The accused pleaded not guilty to the said charge and claimed to be tried.
2.2. In order to prove the charge against the accused, the prosecution has examined, in all 5 witnesses and also produced certain documentary evidence.
2.3 Upon filing closing pursis by the prosecution, further statements of the accused under Section 313 of Cr.P.C, 1973 were recorded. The accused denied involvement in the crime. After hearing the learned advocates appearing for the prosecution and the defence, the learned trial Judge, acquitted the respondentsaccused of the charges levelled against them, except respondent No.1 who was ordered to pay fine of Rs.500/for the offence punishable under Section 176 of the IPC giving benefit of doubt, which is giving rise to the present appeal. Since respondent Nos. 2, 4 and 5original accused Nos.2, 4 and 5 died during the pendency of the appeal, vide order dated 29.04.2014 the appeal qua Page 3 of 10 R/CR.A/974/2000 JUDGMENT respondent Nos.2, 4 and 5, has been ordered to be abated.
3. Heard Mr.K.L.Pandya, learned Additional Public Prosecutor, for the appellantState and Mr.Umang H. Oza, learned advocate for the respondent Nos.1 and 3original accused. Nos.1 and 3.
4. Mr.K.L.Pandya, learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the oral as well as documentary evidence produced on record. He further submitted that learned Judge has committed an error in not properly appreciating the oral as well as documentary evidence in its true and proper perspective. He invited attention of the Court to the deposition of complainant at Exh.35 and the complaint at Exh.43 and submitted that if both are perused simultaneously, it is clear that the deceased was being taunted by herinlaws on the count of dowry. He further submitted that the complainant had deposed in his chiefexamination that his sister (deceased) had told the complainant that she was being beaten by her inlaws for nonsatisfying the demand of dowry like ornaments, cash etc. and therefore, it cannot be said that the complainant has improved the version as concluded by the learned trial Judge. Likewise, the mother of the deceasedGamiben Ganeshji Thakore has also supported the case of the prosecution. He further submitted that the case of the prosecution is further substantiated by the complaint and depositions of the complainant as well mother of the deceased, because before two months of the alleged incident, the deceased had gone to her parental home and stayed there for at least one month. Thereafter, one Mr.Abhuji Thakore and one Mr.Prajapati had made efforts for an amicable settlement and had also given assurance to the family members of the deceased that henceforth, no such illtreatment would be given to the deceased.
Page 4 of 10R/CR.A/974/2000 JUDGMENT 4.1 Leaned Additional Public Prosecutor has also submitted that if the
depositions of the complainant and the mother of the deceased are perused minutely, it is crystal clear that cruel treatment was continuously given by the respondentsaccused which led her to commit suicide and this important aspect has been ignored by the learned trial Court.
4.2 In support of his submission, learned Additional Public Prosecutor has relied upon a decision in Indrasinh M. Raol V/s. State of Gujarat reported in 1999(2) GLH 596. Head Notes A, F and I relevant for the purpose, are extracted hereunder: "(A) Indian Penal Code, 1860S.498ACrueltyA solitary incident cannot be interpreted as sufficient evidence of cruelty or harassment to attract S.498AIn a single incident incessant, persistent and sufficiently grave cruelty as is likely to drive the woman to a point of desperation leaving her with no option except to think about suicide would be absentSuch a single incident will not incite a woman to commit suicide under the belief that life is now not worth livingEven if in some cases single incident incites a woman to commit suicide it is not a cruelty or harassment which is unabated continuous or recurring and unbearable as envisaged by S.498ASuch one or two incidents may attract another penal provisions of I.P.Code but will not attract S.468A. (B) ........
(C) ........ (D) ........ (E) ........ (F) Indian Penal Code, 1860S.498ASection is introduced to firmly
curb the cruelty or harassment to the women and to provide adequate protection to them and to combat the menace of dowry deathObject of the provision is to track down and crack down the husband or his relatives who are subjecting the woman to cruelty or harassmentWhen credible evidence is found, then the Court has to mercilessly frown on and without being compassionate throw the book at the wrong doer (accused).
Page 5 of 10R/CR.A/974/2000 JUDGMENT (G) ....... (H) ....... (I) Indian Penal Code, 1860S.498AHarassmentNot defined in
S.498ATo subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands or persecution or brutality or tyranny, or harm of pain, or affliction or other unpleasantness or grave annoyance or trouble amounts to harassment as per dictionary meaningS.498 A will not came into play in every case of harassment and/or crueltyReasonable nexus between cruelty and suicide must be establishedProsecution has to establish that harassment or cruelty was with a view to force the wife to end her life or fulfill illegal demands and it was not matrimonial cruelty, namely,usual wear and tear of matrimonial lifeArithmatical accuracy is not expected from the prosecution but evidence should be credible, leaving no room to any reasonable doubt."
5. On the other hand, Mr. Umang H. Oza, learned advocate for respondent Nos.1 and 3original accused Nos.1 and 3 submitted that the trial court has rightly appreciated the evidence forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He has further submitted that there are glaring and major contradictions in the evidence of material witnesses, seriously affecting the root of the matter. Therefore, the respondents have rightly been acquitted by the trial court. The learned advocate for the respondent Nos.1 and 3 further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. Eventually, he submitted that the present appeal may be dismissed.
6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the learned trial Court have been very clearly explained by the Honble Apex Court in catena of decisions. In the case of State of Goa V. Sanjay Thakran & Anr.
Page 6 of 10R/CR.A/974/2000 JUDGMENT reported in (2007)3 SCC 75, it has been held by the Honble Apex Court In para 16 as under:
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
7. Same view has been taken by the Apex Court in State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
8. I have gone through the impugned judgment and order passed by the learned trial Court together with oral as well as documentary evidence and also considered submissions made by learned advocate, in light of the principles laid down by the Hon'ble Apex Court in the aforesaid decisions.
9. Before dealing with the submissions made by the learned Additional Public Prosecutor, the facts which have come on the record are required to considered. Referring the depositions of Pathuji Zalaji Exh.36 and Tejaji Chelaji, Investigating Officer at Exh.42, it can be said that right from the beginning, all the respondents were residing together Page 7 of 10 R/CR.A/974/2000 JUDGMENT in a joint family, but since last approximately 4 years from the date of incident, all the accused started residing separately and respondent No.1 was residing at a distance of 1 k.m. in a hut. Moreover, it has also come on record that during the investigation and after drawing the Panchanama, it was found that the hut was belonging to Chaturji, who was residing there. The learned trial Court has discussed this aspect at length and observed that it cannot be said that the deceased was being taunted persistently and constantly by the respondents, as alleged in the complaint as well as in the deposition of the complainant. There appears force and substance in the submission made by learned advocate for respondent Nos.1 and 3original accused Nos.1 and 3 and creates reasonable doubt in the case of the prosecution. It has also come on record that in the community of the complainant and the respondents, custom of giving dowry was not prevailing. On the contrary, as per their customs, 'Paithan' is used to be given by the husband to the family members and the wife at the time of marriage.
10. It has also been submitted by the learned Additional Public Prosecutor that inspite of the fact that all the respondentsaccused were aware of the fact that the deceased had consumed the poisonous drug they did not take her to the hospital and the said conduct on the part of the respondentsaccused speaks a lot so far as allegations levelled against the respondentsaccused are concerned. On this issue, if the deposition of Dr.Bharatbhai Mulchandbhai Patel is perused, in the cross examination, he has deposed that, considering the gravity of the facts, he had given advice to the respondentsaccused to take the patient to the Government Hospital either at Visnagar or Mehsana, but the respondentsaccused had told that if they would take the patient to Government Hospital either at Visnagar or Mehsana, there were chances of more complications on the way. Moreover, they had not a single Page 8 of 10 R/CR.A/974/2000 JUDGMENT penny towards transportation and they were tying to arrange some funds. Considering the fact that the respondents were doing labour work at the relevant point of time, it was difficult for them to arrange for the funds. Under the circumstances, on giving thoughtful consideration to the impugned judgment and order, there appears no illegality or perversity or arbitrariness in the conclusions arrived at and findings recorded by the learned trial Judge.
11. It appears that the learned trial Court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused, as aforesaid. This Court is, therefore, of the opinion that the learned trial Court was completely justified in acquitting the accused of the charges levelled against them. Under the circumstances, the findings recorded by the learned trial Court are just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same.
12. Learned Additional Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the learned trial Court or that the approach of the learned trial Court is vitiated by some manifest illegality or that the decision is perverse or that the learned trial Court has ignored the material evidence on record.
13. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 01.08.2000 passed by the learned Sessions Judge, Mahesana, in Sessions Case No.306 of 1999 is confirmed. Bail bonds shall stand cacelled. Registry to sent back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same.
(G.B.SHAH, J.)
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siddharth//
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