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2013 DIGILAW 191 (GUJ)

STATE OF GUJARAT v. PRADYUMANSINH MANUBHA JADEJA

2013-04-01

ABHILASHA KUMARI

body2013
JUDGMENT ABHILASHA KUMARI, J. 1. This appeal is directed against the judgment andorder dated 31.12.1996, rendered by the learned Additional Sessions Judge, KutchBhuj, in Sessions Case No.88/1992, whereby the respondents have been acquitted of the charges under Sections306 and 498(A) read with Section 114 of the Indian Penal Code. 2. Briefly stated, the case of the prosecution is that Dharmishthaben (hereinafter referred to as “the deceased”) was married to respondent No.1 in January, 1991. Respondent No.2 is the brother of respondentNo.1 and respondent No.3 is the mother-in-law of the deceased. The case of the prosecution is based upon the complaint dated 22.05.1992, made by PW2 Pravinsinh Bachubha Gohil, brother of the deceased, to the effect that the marriage of his sister (the deceased) took place about one year and four months before the incident, which took place on 23.05.1991. After two to three months of her marriage, when she had come to her parental home, the deceased had complained that her motherinlaw (respondent No.3) and her brotherinlaw (respondent No.2) used to taunt her on small things and used to cause her harassment by calling her “Kamchor” (shirker). Thereafter, the parents of the deceased assured her that everything would be fine and sent her back to the matrimonial home with respondent No.2, who had come to take her back. After about one and a half months, respondent No.1 informed PW3 and PW4 the parents of the deceased, that the deceased had sustained burn injuries while cooking and had been admitted at Bhuj General Hospital. The parents of the deceased went to Bhuj General Hospital and the complainant followed, four days later. The deceased had sustained burninjuries on her chest, neck, hands and stomach. Upon inquiring from her regarding the incident, the deceased stated that she had set herself ablaze due to the torture inflicted upon her by the respondents. The deceased had remained in Hospital for about one and ahalf months, after which she was taken to the house of her aunt PW6 at village Raseliya, where she was treated by a Vaidya, (PW5). After about 20 days, the deceased was taken to her parental home at village Dujapar, where she ultimately died on 18.08.1991, about three months after the incident. The complaint was made on 22.05.1992 by PW2, brother of the deceased. After the filing of the complaint, the investigation commenced. After about 20 days, the deceased was taken to her parental home at village Dujapar, where she ultimately died on 18.08.1991, about three months after the incident. The complaint was made on 22.05.1992 by PW2, brother of the deceased. After the filing of the complaint, the investigation commenced. No Postmortem was performed on the body of the deceased and neither was an inquest held. After recording the statement of the witnesses, the respondents were chargesheeted before learned Judicial Magistrate, First Class, Anjar. As the offence under Section306 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, BhujKutch, which came to be registered as Sessions Case No.88/1992. Charges were framed against the respondents, which were read over and explained to them. They denied the charges and claimed to be tried Accordingly, the case was put to trial. In support of its case, the prosecution has examined as many as 11 witnesses and produced documentary evidence. At the end of the trial, upon appreciation and evaluation of the evidence on record, the Trial Court acquitted the respondents of the charges levelled against them, giving rise to the filing of the present appeal. 3. Mr. K.L.Pandya, learned Additional Public Prosecutor has submitted that the Trial Court has failed to appreciate the oral and documentary evidence in proper perspective. That, PW3, PW4 and PW2, father, mother and brother of the deceased respectively, have consistently stated that when the deceased came home one and a half months after the marriage, she had complained to them regarding the torture and harassment meted out to her by the respondents. It is submitted that the deposition of these witnesses, coupled with the letter written by the deceased on the day of the incident (Exhibit10), would go to show that the deceased was being tortured and harassed by the respondents, which led her to take the extreme step. It is further submitted that the late filing of the complaint would not detract from the merits of the case inasmuch as there is sufficient material on record to establish the guilt of the accused, therefore, the impugned judgment and order deserves to be quashed and set aside and the appeal allowed. 4. The respondents have been served but they have not chosen to put in their appearances before the Court. 5. 4. The respondents have been served but they have not chosen to put in their appearances before the Court. 5. Having heard the learned Additional Public Prosecutor and after scrutinizing the record and proceedings of the case, it would be fruitful to advert to the salient features of the evidence led by the prosecution. 6. PW1 Dr.Raginiben Kantilal Galaiya states that on .23.05.1991, the deceased was admitted to the Government Hospital at Anjar, where this witness gave her preliminary treatment. The deceased had sustained 40% burns on her body and was referred by her for further treatment to Bhuj General Hospital. This witness specifically states that the Police was informed telephonically regarding the admission of the deceased in the Hospital and her referral to Bhuj General Hospital. 7. PW2 Pravinsinh Bachubha Gohil is the complainant and brother of the deceased, who has been examined at Exhibit8. He states that his sister has committed suicide due to the torture inflicted upon her by the respondents. He states that when he went to see his sister at Bhuj General Hospital where she was under treatment, she informed him that she had committed suicide because she was tired of the torture meted out to her. He states that the deceased was, thereafter, shifted from Bhuj General Hospital to the house of PW 6 at village Raseliya where she took treatment form a Vaidya, (PW5). Thereafter, she was shifted to her parental house at village Dujapar, where she expired on 18.08.1991. 8. PW3 Bachubha Chanubha Gohil, father of the deceased has been examined at Exhibit11. He states that his daughter, Dharmishtha, was married to respondent No.1 in January, 1991. After her wedding, when the deceased came to her parental home, she informed her family members that the respondents used to treat her with cruelty by frequently taunting her. Respondent No.2 came to take her back to her matrimonial house. Thereafter, on 24.05.1991, respondent No.1 came to his house and informed him that the deceased had sustained burns accidentally, and was admitted to the Hospital. The deceased took treatment at Bhuj General Hospital for about 20 days after which she was shifted to the house of PW6, where she was given treatment by PW5. After about 20 days of treatment from PW5, the deceased was brought to her parental house at village Dujapar where she breathed her last on 18.08.1991. The deceased took treatment at Bhuj General Hospital for about 20 days after which she was shifted to the house of PW6, where she was given treatment by PW5. After about 20 days of treatment from PW5, the deceased was brought to her parental house at village Dujapar where she breathed her last on 18.08.1991. This witness states that his daughter had written a letter to him on the day of the incident in which she had stated that the respondents used to treat her with cruelty. In his crossexamination, this witness admits that he has not filed a Police complaint after the incident took place .and it was Police who came to their house to take down the complaint. Regarding the late filing of the complaint, he states that he never informed the Police regarding the death of his daughter. 9. PW4 Mayaba Bachubha Gohil is the mother of the deceased, who has been examined at Exhibit12. She more or less reiterates the version put forth by respondent No.3, by stating that when the deceased came home after her marriage, she informed her that the respondents used to torture her by taunting her frequently. The incident took place after about one and a half months, when respondent No.2 came to take the deceased back to her matrimonial house. She states that respondent No.1 informed them regarding the burns sustained by the deceased and adds that the deceased had poured kerosene upon herself and set herself ablaze due to the torture meted out to her by the respondents. Though this witness states that the deceased used to write letters to her parents describing the cruel treatment meted out to her, no such letters have been produced on the record of the case, except for Exhibit10, which is stated to have been written on the day of the incident. This witness, .in her crossexamination, denies any knowledge regarding the recording of the dying declaration of the deceased by the Executive Magistrate. 10. PW5 Govindji Velji Darji, who is a Vaidya, had treated the deceased after she was taken away from Bhuj General Hospital. Nothing much turns upon his deposition, therefore, it need not be discussed. 11. PW6 Hemkuvarba is the aunt of the deceased, who lives in village Raseliya where PW5 treated her. 10. PW5 Govindji Velji Darji, who is a Vaidya, had treated the deceased after she was taken away from Bhuj General Hospital. Nothing much turns upon his deposition, therefore, it need not be discussed. 11. PW6 Hemkuvarba is the aunt of the deceased, who lives in village Raseliya where PW5 treated her. This witness also states in her examinationinchief that the deceased was being harassed and tortured at her matrimonial home. She states that the deceased did not say anything further regarding the incident. 12. PW8 Dr.Hemen Shah has treated the deceased at Bhuj General Hospital. In his crossexamination, after perusal of the case papers, he states that he is in a position to say that the deceased was treated for infection and fever. He further states that if the patient is given treatment by a Vaidya after being treated in a Hospital, there are chances of complications arising in the case. 13. The dying declaration of the deceased is at Exhibit30, which has been recorded by an Executive Magistrate, who has not been examined. The deceased has categorically stated therein that on 23.05.1991, she has sustained burns while cooking, due to the Pallav of her saree catching fire. On the same day, the deceased has given a statement to the Police at Exhibit31, in which she reiterates that she has sustained burn injuries while cooking, as her saree Pallav accidentally caught fire. She has elaborated that no quarrels took place in the family and all the family members used to live together in harmony. 14. Exhibit10 is a letter dated 23.05.1991, purportedly written by the deceased to her father PW 9. 3. The prosecution has relied heavily upon this letter, which has been received by PW3 on 25.05.1991. It is the case of the prosecution that this letter implicates the respondents in the commission of the offence, as the deceased has written about the ill treatment meted out to her by them and has asked her father to come and take her away on the coming Saturday, when he would have received the letter. There is no signature on the letter. The writer of the letter is one Jivuba. There is no signature on the letter. The writer of the letter is one Jivuba. Though it has been presumed by the prosecution that Jivuba is none other than the deceased Dharmishthaben, no material has been produced to show that Dharmishthaben was also known as Jivuba or that the letter has, in fact been written by her. No other letters of the deceased have been produced on record, for comparison of the handwriting and neither has the letter been sent for examination by a Handwriting Expert. 15. After appreciating the oral and documentary evidence, as above, the Trial Court has come to the conclusion that the prosecution has not been successful in bringing home the guilt of the respondents beyond reasonable doubt, and has acquitted the respondents. 16. Having independently scrutinized and analyzed the findings on record, this Court finds itself in agreement with the finding of acquittal recorded by the Trial Court. The incident took place about one year and four months after the marriage of the deceased. It is noteworthy that the incident took place on 23.05.1991, whereas the complaint has been filed after about one year, on 22.05.1992. The deceased died on 18.08.1991. She was alive for about three months after the incident took place. The letter at Exhibit10, purported to have been written by the deceased to her father PW3, is dated 23.05.1991. That is also the date of the incident. It was received by him on 25.05.1991. There is no dispute regarding this fact. Thereafter, the deceased has survived for about three months, but PW3 has not cared to inform the Police regarding the letter or to file a complaint. This cannot be said to be natural behavior on the part of a father who receives a letter just two days after the death of his daughter, regarding the torture meted out to her. Under the circumstances, there is no reasonable justification for filing the complaint after one year, in spite of having received the letter at Exhibit10. Normally, no father would remain silent for one year when he is in receipt of a letter by his daughter regarding torture, cruelty and harassment, written on the day of the incident itself, and received two days later. There is no reasonable explanation for this conduct on the part of the prosecution at all. This casts a doubt on the authenticity of the letter itself. There is no reasonable explanation for this conduct on the part of the prosecution at all. This casts a doubt on the authenticity of the letter itself. Though PW2 has stated that the letter has been written by the deceased in her own handwriting, no other letters from the deceased have been produced by any of the prosecution witnesses, which could have helped in establishing the similarity in handwriting of the deceased. The letter at Exhibit10 has not been sent for verification and no question has been put by the defence to the prosecution witnesses in this regard. 17. A perusal of the document at Exhibit10 reveals that it has not been signed by the deceased, but is purported to have been sent by one Jivuba. The word ‘Jivuba’ is written at the back of the Inland Letter Card. From the depositions of the father, mother, brother and aunt of the deceased, PW3, 4, 2 and 6 respectively, it is not established that the deceased was also known as Jivuba. Therefore, the prosecution has not proved beyond doubt that the letter at Exhibit10 has been written by none other than the deceased. The benefit of the doubt created in this regard must, therefore, go to the respondents. 18. Contrary to this, the deceased has recorded in her dying declaration at Exhibit30, which bears her right thumb impression, that she has sustained burns .accidentally, while cooking, as her saree Pallav caught fire. The same version has been given by her in her statement before the Police at Exhibit31 on the same day, which also bears her thumb impression. The deceased has been consistent in her version that she has sustained burn injuries accidentally. There is no material on record to show that the deceased was under some influence or pressure from the respondents, or that her dying declaration was not voluntary. A dying declaration can be believed if it is found to be trustworthy and credible as it is the last word spoken by the deceased. In the present case, there are no surrounding circumstances to undermine the credibility of the dying declaration, therefore, there is no reason to disbelieve the version contained in it, which is corroborated by the statement of the deceased at Exhibit31. 19. In the present case, there are no surrounding circumstances to undermine the credibility of the dying declaration, therefore, there is no reason to disbelieve the version contained in it, which is corroborated by the statement of the deceased at Exhibit31. 19. Apart from the above, the prosecution has not examined any independent witnesses in order to prove that the deceased was being harassed and tortured by the respondents. PW2, 3, 4 and 6 are close relatives of the deceased and can be termed as interested witnesses. Their testimonies are contrary to the .version of the deceased herself, in the dying declaration and her statement before the Police. The theory of suicide by the deceased is not supported by the deceased herself, who has consistently maintained that she sustained burn injuries accidentally. 20. Though the Executive Magistrate has not been examined, there is no reason to disbelieve the dying declaration or the statement given by the deceased to the Police wherein she has elaborated that there were no quarrels in the family and all family members used to live together in harmony at the matrimonial home. In the light of the above, a doubt is created about the letter at Exhibit10 and the Trial Court has rightly not placed reliance upon it. 21. There has been an inordinate delay in filing the complaint. It cannot be believed that the complainant would have waited for one year to file a complaint against the respondents even after receiving the letter at Exhibit10 two days after the incident. The complaint appears to be an afterthought after some deliberation. Further, it does not appear from the material on record that during the time when the .deceased was admitted in the Hospital, there was any bad blood or illfeelings between the parents of the deceased and the respondents. PW4 Mayaba, mother of the deceased has stated in her crossexamination that when the deceased was admitted in the Hospital, none of their relatives came to inquire about her and during that time the tiffin used to be sent for her from the house of the respondents. This witness has further stated in crossexamination that when the deceased was in Hospital, respondent No.1 handed over the ornaments of the deceased to her. 22. It cannot be lost sight of that the deceased was alive for three months after the incident. This witness has further stated in crossexamination that when the deceased was in Hospital, respondent No.1 handed over the ornaments of the deceased to her. 22. It cannot be lost sight of that the deceased was alive for three months after the incident. At no point of time in those three months has the deceased resiled from her dying declaration or the statement made by her before the Police. During her last days the deceased was at her parental home, where she died. If the version in the dying declaration was not truthful, she could have come stated the truth at any point of time before her death. The fact that the deceased maintained the version in her dying declaration adds to its credibility. The Trial Court has, in view of this Court, rightly placed reliance upon the dying .declaration at Exhibit30 and the statement made by her to the Police at Exhibit31 and has rightly not relied upon the letter purportedly written by the deceased at Exhibit10. 23. From the above, it is clear that the prosecution has failed to prove the charge against the respondents under Section498(A) of the Indian Penal Code as there is no clear, consistent, specific or cogent evidence of cruelty being meted out to the deceased by the respondents. Further the charge under Section306 of the Indian Penal Code has also not been made good as to prove that there was abetment there must be cogent evidence on record to show that there was active instigation to commit the offence. 24. In the case of Ramesh Kumar Vs. State of Chhattisgarh, reported in (2001) 9 SCC 618 , the Supreme Court has described the nature of such instigation as below : “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessary and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 25. Viewed in the light of the above principles of law, it cannot be held on the basis of the evidence on record that the respondents had, by their acts of omission or commission or a continued course of conduct, instigated the deceased to end her life. 2. 26. This Court is of the view that the findings arrived at by the Trial Court upon appreciation of the evidence before it are possible and probable on the facts and in the circumstances of the case. The prosecution has not been successful in proving the case against the respondents beyond reasonable doubt, therefore, the findings of acquittal recorded by the Trial Court are just and proper. 27. Lastly, it is a settled principle of law that where two views are possible, the view favourable to the accused ought to be taken. In the present case, as the view taken by the Trial Court in acquitting the accused is based upon a proper appreciation of evidence, no interference is called for by this Court. 28. The appeal, therefore, fails and is dismissed.