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2016 DIGILAW 131 (GUJ)

State of Gujarat v. Arvind Badha

2016-01-19

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Principal Fast Track Judge, Junagadh (hereinafter referred to as "the trial Court") in Sessions Case No. 16/2004 by which the learned trial Court has acquitted the respondents herein-original accused for the offences punishable under Sections 306, 304B and 114 of the Indian Penal Code ('IPC' for short), State has preferred the present Appeal under Section 378 of the Code of Criminal Procedure. 2. The prosecution case in a nutshell are as under; "[2.1] According to the complainant-Chinabhai Hirabhai Vanvi, resident of Gorakh Madhi, it was the case of the prosecution that the daughter of the complainant, named, Savitaben was married with the original accused-Arvind Badhabhai before two years from the date of the incident. It was further the case of the prosecution that during her wedlock period, she has given birth to a son who is aged about six months as on the date of the incident. It is to be noted at this stage that before marriage with the original accused-Arvind Badhabhai deceased-Savitaben was married but due to either one or the other reason her marriage life was not happy, and therefore, she took divorce from that person and got engaged with the original accused-Arvind Badhabhai and married him. It was further the case of the prosecution that after her marriage with the original accused-Arvindbhai Badhabhai she was residing with the original accused persons at village Gorakh, Madi. It was further the case of the prosecution that at the initial stage of her marriage life, there was no problem and she was happy, but after the birth of the child, all the accused used to physically and mentally taunt her by saying that she has not brought sufficient dowry from her parents. It was further the case of the prosecution that under the ground of not bringing sufficient dowry, she was subjected to cruelty as well as was beaten by all the accused persons. It was further the case of the prosecution that before two months from the date of the incident, she was driven out from the house. It was further the case of the prosecution that under the ground of not bringing sufficient dowry, she was subjected to cruelty as well as was beaten by all the accused persons. It was further the case of the prosecution that before two months from the date of the incident, she was driven out from the house. It was further the case of the prosecution that at that time she informed the complainant about her husband, as well as father-in-law and mother-in-law harassing and ill-treating her on the ground of dowry and she also complained that the accused persons asked the deceased to bring money in the form of dowry. Therefore, the deceased-Savitaben stayed at the house of the complainant for a period of eight days and after settling the issues, she was sent back to the house of the in-laws and an amount of twenty to twenty five thousand was given at different stages to the accused. It was further the case of the prosecution that before 15 days of the incident, Kamiben, who is the wife of the complainant had gone to receive the deceased-Savitaben but she was not sent along and at that time also deceased-Savitaben had informed the fact about ill-treatment and harassment by the respondents-original accused, and therefore, wife of the complainant returned without her daughter-Savitaben. Thereafter, on 30/10/2003 at about 11:00 hours at night, Dalik Jethabhai of village Umari received a message from Sutrapada Police Station that deceased-Savita has received burn injuries and she has been admitted in Mangrol Government Hospital and she died and her dead body is kept in the said hospital. Therefore, the complainant alongwith his wife and son Khimji as well as other relatives had gone to Mangrol Government Hospital. It is further the case of the prosecution that it was informed by all the accused persons that she had committed suicide by pouring kerosene on her body and set her on fire. Therefore, on 02/11/2003 a complaint was filed against the respondents-original accused for the alleged offences under Sections 306 and 114 of the IPC and during the investigation as it was known that there was a demand of dowry, and therefore, she has committed suicide, and therefore, offence under Section 304 B was added. [2.2] Initially the case was registered as accidental death case. [2.2] Initially the case was registered as accidental death case. During the inquiry of the accidental death, much prior to registration of the FIR given by the original complainant-father of the deceased, the concerned Police Officer of Mangrol Police Station informed/sent yadi to the Mamlatdar and the Taluka Executive Magistrate to prepare the inquest panchnama and the Executive Magistrate went to the hospital alongwith the Officer of the FSL and a videographer. The panchnama of the place of the incident was also prepared as the deceased-Savitaben died, and therefore, Postmortem was also done by the Doctor. During the inquiry it was found that the deceased died due to suspicious circumstances. The inquiry was thereafter conducted by Deputy Superintendent of Police. Thereafter the Complaint/FIR was lodged by the father of the deceased at Exh. 2 on 02/11/2003 i.e. after a period of three days, and thereafter, the investigation was conducted by P.S.I, Mangrol Police Station by Shri Vishnukumar Mukundrai Vyas. In the investigation he recorded the statement of the concerned witnesses, more particularly, the statement of the family members, including the parents of the deceased. The Investigating Officer also collected the medical evidences. As the deceased died within seven hours and there was allegation of dowry demanded by the respondents-original accused offence under Section 304 B of the IPC came to be added. Thereafter, after conclusion of the investigation the Investigating Officer filed the chargesheet against all the accused for the offences punishable under Section 306, 304 B and 114 of the IPC. At this stage, it is required to be noted that even all the accused sustained burn injuries, and therefore, the Investigating Officer also collected the medical certificates of all the accused. As observed hereinabove, after conclusion of the investigation and having found prima facie case against all the accused, the Investigating Officer filed the chargesheet against all the accused in the Court of learned Judicial Magistrate First Class for the aforesaid offences. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class committed the case to the Sessions Court, Junagadh, which was transferred to the Court of learned Principal Fast Track Judge, Junagadh and numbered as Sessions Case No. 16/2004. The plea of all the accused was recorded. All the accused pleaded not guilty, and therefore, they came to be tried by the learned trial Court for the aforesaid offences. The plea of all the accused was recorded. All the accused pleaded not guilty, and therefore, they came to be tried by the learned trial Court for the aforesaid offences. The learned trial Court framed the charge against the all the accused at Exh. 1 for the offences punishable under Sections 206, 304B and 114 of the IPC. The accused pleaded not guilty, and therefore, they came to be tried by the learned trial Court for the aforesaid offences. To prove the case against the original accused the prosecution examined the following prosecution witnesses; Sr. No. Exh. No. List of the prosecution 1 12 Dr. Masribhai Jodhabhai Chatodia Medical Officer who examined the accused 2 19 Dr. Dineshkumar Savasbhai Makwana Medical Officer who performed the postmortem on the deceased 3 29 Khimabhai Chinabhai Vanvi Brother of the deceased 4 31 Chinabhai Hirabhai Father of the deceased 5 33 Kamiben Chinabhai Mother of the deceased 6 34 Jethabhai Parbatbhai Witness 7 35 Shantubha Panchanji Chudasma Person who investigated the accidental death 8 37 Kalekhan Aalamkhan Qureshi Witness who took the complaint 9 40 Vishnukumar Mukundray Vyas Investigating Officer 10 44 Sureshbhai Bhimjibhai Thumar Investigating Officer Through the aforesaid witnesses the prosecution also brought on record the following documentary evidences; Sr. No. Exh. No. List of Documents 1 14 to 16 Medical certificate of the injured 2 21 Letter of the Medical Officer, Mangrol to know the cause of death 3 22 Postmortem Report 4 25 Inquest panchnama 5 26 Panchnama of the arrest of the accused 6 36 Copy of Accidental Death Case No. 37/03 7 38-39 Copy of the Station diary and the FIR 8 41 Panchanam of the place of the incident 9 42 FSL of the place of the offence 10 43 Yadi of the P.S.I. 11 45-46 Receipt and Letter of the FSL 12 47 Receipt of the FSL 13 48 Report of the Regional FSL, physic Dept 14 39 to 53 Papers of the FSL 15 54 Report of the FSL [2.3] After closing the purshis submitted by the prosecution, further statement came to be recorded under Section 313 of the Code of Criminal Procedure and in the further statement the accused pleaded of not having committed any offence and stated that they are innocent and a false case is filed against them. [2.4] At the conclusion of the trial and on appreciation of evidence, by the impugned judgment and order the learned trial Court has acquitted all the original accused by specifically observing that the prosecution has failed to prove by cogent evidence that the deceased committed suicide because of ill-treatment by the original accused and that too because of non-fulfillment of the dowry demand. The learned trial Court has also specifically observed and held that the prosecution has failed to prove and establish by leading cogent evidence/independent evidence that after marriage and till the deceased died there was any dowry demanded and/or any amount towards the dowry demanded was paid to the original accused. Having so held the learned trial Court by the impugned judgment and order acquitted the original accused for the offences punishable under Sections 306, 304 B and 114 of the IPC, which has given rise to the present Appeal at the instance of the State." 3. Shri K.P. Raval, learned APP appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially erred in acquitting the original accused. 3.1 It is vehemently submitted by Shri Raval, learned APP that while acquitting the original accused for the serious offences in which one woman died within a period of seven hours, the learned trial Court has not properly appreciated the evidence on record, more particularly, the depositions of P.W. 3, 4 and 5. It is vehemently submitted by Shri Raval, learned APP that in the present case all the aforesaid three witnesses specifically stated that after approximately two to three months of the marriage the accused started demanding dowry and started harassing the deceased, and therefore, she frequently used to go to their house and after fulfilling the demand of dowry again the deceased was sent back to her in-laws house. It is submitted that all the aforesaid three witnesses categorically stated in their deposition that they paid in all Rs. 25,000/- to the accused, which were illegally demanded towards dowry. 3.2 It is submitted that in the present case the deceased died because of 95% burn injuries and even the person-Jethabhai Parbatbhai, who informed them about the death of the deceased, specifically stated that the deceased has died by pouring kerosene on her. 25,000/- to the accused, which were illegally demanded towards dowry. 3.2 It is submitted that in the present case the deceased died because of 95% burn injuries and even the person-Jethabhai Parbatbhai, who informed them about the death of the deceased, specifically stated that the deceased has died by pouring kerosene on her. It is submitted that therefore in view of the aforesaid evidence the learned trial Court ought to have convicted the original accused for the offences punishable under Sections 306, 304 B and 114 of the IPC. 3.3 It is further submitted by Shri Raval, learned APP appearing on behalf of the State that the learned trial Court has not properly appreciated the fact that the death of the deceased was just after 2 1/2 years of the marriage and because of the demand of dowry the deceased committed suicide by pouring kerosene on her. It is submitted that therefore in view of the aforesaid witnesses and documentary evidences against the accused the learned trial Court ought to have convicted the original accused. It is further submitted by Shri Raval, learned APP appearing on behalf of the State that the learned trial Court has discarded the prosecution witnesses merely on the ground that they were the relatives of the deceased, and therefore, they were interested witnesses. It is submitted that merely because the prosecution witnesses, more particularly, P.W. 3, 4 and 5 were the relatives of the deceased that itself was no ground to discard their depositions when they were found to be reliable and trustworthy and their depositions are corroborated from other independent witnesses and circumstances. It is submitted that therefore the acquittal of the accused by the learned trial Court that too for such a heinous crime against the woman has resulted into miscarriage of justice, and therefore, it is requested to interfere with the impugned judgment and order passed by the learned trial Court and convict all the accused for the offences for which they were tried. 4. The present Appeal is vehemently opposed by Shri Y.M. Thakore, learned advocate appearing on behalf of the original accused, who has been appointed by the Gujarat High Court Legal Aid Committee. 4. The present Appeal is vehemently opposed by Shri Y.M. Thakore, learned advocate appearing on behalf of the original accused, who has been appointed by the Gujarat High Court Legal Aid Committee. 4.1 He has vehemently submitted that the findings recorded by the learned trial Court while acquitting the original accused are on appreciation of evidence on record, and therefore, the same are not required to be interfered with by this Court in exercise of appellate jurisdiction. Shri Thakore, learned advocate appearing on behalf of the original accused has vehemently submitted that this is an Appeal against the impugned judgment and order of acquittal passed by the learned trial Court, and therefore, unless and until the findings recorded by the learned trial Court are found to be perverse, the same are not required to be interfered with in exercise of the appellate jurisdiction. 4.2 It is further submitted by Shri Thakore, learned advocate appearing on behalf of the original accused that from the evidence on record it is established and as rightly observed by the learned trial Court it was the case of accidental death. It is submitted that as such neither there was any smell found on the clothes of the deceased nor smell of kerosene and/or kerosene was found at the place of the incident. It is further submitted that as such in the present case all the three accused also sustained burn injuries while trying to save the deceased. It is submitted that even the Doctor, who treated the deceased, has specifically stated in the deposition that there was no smell of kerosene found on the clothes of the deceased and the injuries, which were sustained and/or burn injuries, received by the deceased could have been by accident. He has also further submitted that even the Doctor, who treated the accused for burn injuries categorically stated that all the injuries, which were sustained by the accused, might be possible while trying to save the deceased. 4.3 It is further submitted that even the Doctor, who performed the Postmortem, has categorically admitted that there was no presence of kerosene on the clothes of the deceased and except burn injuries no other injuries were found and that injuries, which were sustained/received by the deceased, might be possible because of accident. 4.3 It is further submitted that even the Doctor, who performed the Postmortem, has categorically admitted that there was no presence of kerosene on the clothes of the deceased and except burn injuries no other injuries were found and that injuries, which were sustained/received by the deceased, might be possible because of accident. 4.4 It is submitted that on appreciation of evidence the learned trial Court has specifically observed and held that the prosecution has miserably failed to prove any dowry demand by any of the accused and/or any ill-treatment by the accused due to which the deceased committed suicide. It is submitted that as such the prosecution has not examined any independent witnesses, more particularly, the neighbour to prove that there was any ill-treatment to the deceased. It is further submitted that even the Investigating Officer has categorically stated in his deposition that he recorded the statement of the neighbours in which none of them supported the case of the prosecution that there was any ill-treatment and/or harassment by the accused. It is further submitted by Shri Thakore, learned advocate appearing on behalf of the original accused that merely because the deceased died within 7 hours the accused cannot be convicted under Section 304 B of the IPC unless and until the prosecution is successful in proving that the death of the deceased was because of ill-treatment for non-fulfillment of the dowry demand. It is vehemently submitted that in the present case the death of the deceased was an accidental death and the prosecution has miserably failed to establish and prove by leading cogent evidence that there was any dowry demand and/or ill-treatment by the accused and that too for non-fulfillment of the dowry demand. It is submitted that therefore the ingredients of Sections 306 and/or 304 B are not satisfied and fulfilled, including Sections 107 and 108 of the IPC. Making the above submissions it is requested to dismiss the present Appeal. 5. We have heard the learned advocates appearing on behalf of the respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court and the reasons given by the learned trial Court while acquitting the original accused. We have re-appreciated the entire evidence on record, both oral as well as documentary. 5. We have heard the learned advocates appearing on behalf of the respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court and the reasons given by the learned trial Court while acquitting the original accused. We have re-appreciated the entire evidence on record, both oral as well as documentary. 5.1 At the outset it is required to be noted that the original accused were charged for the offences punishable under Sections 306, 304 B and 114 of the IPC only. There was no charge against the original accused for the offences punishable under Section 498A of the IPC. It is true that the deceased-Savitaben died within a period of 7 hours. It was the case of the prosecution that the deceased committed suicide by pouring kerosene on her because of physical and mental ill-treatment by the accused due to non-fulfillment of the dowry demand. However, on re-appreciation of the concerned prosecution witnesses examined by the prosecution as PW 3, PW 4 and PW 5 it appears from the fact that there are material contradictions and there are improvement in the case. In their statement before the police the aforesaid witnesses, more particularly, PW 4 and PW 5 never stated that any amount was paid to the deceased but before the Court the aforesaid witnesses have stated that Rs. 8000/- was demanded by the accused and/or after 15 days/one month when Savitaben went to her parents house and told them that the accused are taunting and torturing her for non-fulfillment of the dowry they gave her Rs. 4000/- and sent her to her in-laws place. Though the aforesaid witnesses have denied the same that they have not stated the same before the police, however, the Investigating Officer has categorically admitted in his deposition that the aforesaid facts were not stated by the aforesaid two witnesses before him during the investigation. Thus, there are material improvement in the case and there are material contradictions in the statement before the police and the case before the Court. 5.2 It appears even from the entire evidence on record that the prosecution has failed to establish and prove by leading cogent evidence that there was any dowry demand by the accused and for non-fulfillment of the same the deceased was tortured or ill-treated by the accused. 5.2 It appears even from the entire evidence on record that the prosecution has failed to establish and prove by leading cogent evidence that there was any dowry demand by the accused and for non-fulfillment of the same the deceased was tortured or ill-treated by the accused. On the contrary from the evidence on record, it appears that the deceased-Savitaben and her husband used to frequently visit their place and lastly they had come to their place on the festival of Janmashtami and they returned to their house. 5.3 At this stage, it is required to be noted that though the Investigating Officer recorded the statement of the neighbours in which it was disclosed that there was no ill-treatment by the accused they have not been examined by the prosecution. The Investigating Officer has categorically stated in his deposition that he recorded the statement of the neighbour/neighbours that there was any ill-treatment and/or harassment by the accused to the deceased. Thus, the prosecution has miserably failed to prove any dowry demand by the accused and/or any harassment and/or ill-treatment by the accused to the deceased for non-fulfillment of the dowry demand. 5.4 It is also required to be noted and it has come on record from the deposition of Dr. Dineshkumar Savdasbhai Makwana, who has been examined as PW 2 at Exh. 19 who performed the Postmortem of the deceased, that there was no smell of kerosene found on the clothes and the body of the deceased. He has also categorically stated that the injuries, which were sustained by the deceased, were possible due to the accident. Even from the panchnama of the place of the incident it appears that no marks of kerosene were found at the place of the incident. 5.5 At this stage it is required to be noted that even all the accused sustained the burn injuries while trying to save the deceased. Dr. Marshibhai Jodhabhai Chatrodiya, who has been examined at PW 12, who treated the accused, has categorically stated in his deposition that the burn injuries, which were sustained by the accused were possible while trying to save the person burning. Thus, even all the three accused sustained the burn injuries while trying to save the deceased. Dr. Marshibhai Jodhabhai Chatrodiya, who has been examined at PW 12, who treated the accused, has categorically stated in his deposition that the burn injuries, which were sustained by the accused were possible while trying to save the person burning. Thus, even all the three accused sustained the burn injuries while trying to save the deceased. 5.6 It is also required to be noted that initially the case was registered as accidental death case and immediately thereafter the inquiry was conducted without wasting any time initially by Vishnukumar Mukundrai Vyas, P.W 9 at Exh.40 and thereafter by Sureshbhai Bhimjibhai Thumar, P.W. 10 at Exh.44. Thereafter, after a period of three days the complainant-father of the deceased lodged FIR making allegation with respect to the deceased having committed the suicide. PW 3-Khima-brother of the deceased has categorically admitted in his cross examination that after they reached the hospital and saw the dead body, at that stage, P.S.I. Vyas met them and asked whether they want to file any FIR/Complaint. They went to their village as their mind was not working. He further admitted in his cross examination that thereafter his relatives and family members gathered and thereafter all of them took a decision to lodge a complaint and thereafter on the next day they went to Mangrol and lodged the FIR. Thus, the aforesaid conduct on the part of the complainant is also required to be considered, more particularly, when there is a delay of three days in lodging the FIR/Complaint and when initially their statements were recorded by the Police they did not disclose about any amount of Rs. 20,000/- or Rs. 25,000/- given to the accused and/or ill- treatment to the victim, which subsequently the prosecution has tried to make out in their deposition before the Court. At this stage, it is required to be noted that even the husband of the deceased-original accused No. 1 was beaten by the complainant side and the complaint/FIR was lodged against them and at the time of deposition of the evidence the case was pending against the complainant side. At this stage, it is required to be noted that even the husband of the deceased-original accused No. 1 was beaten by the complainant side and the complaint/FIR was lodged against them and at the time of deposition of the evidence the case was pending against the complainant side. 5.7 Thus, from the aforesaid and on appreciation of evidence, the prosecution has miserably failed to establish and prove by leading cogent evidence that there was any dowry demand by the accused and/or due to non-fulfillment of any dowry demand there was any harassment by the accused to the deceased, and therefore, none of the ingredients of Section 304 B read with sections 107 and 108 of the IPC are made out. On the contrary, as observed hereinabove and it has come on record that the deceased died due to accidental death and even the accused also sustained burn injuries while trying to save the deceased. Considering the aforesaid facts and circumstances when the learned trial Court by giving cogent reasons has acquitted the original accused it cannot be said that the learned trial Court has committed any error, which calls for the interference of this Court in exercise of appellate jurisdiction. The findings recorded by the learned trial Court are on appreciation of evidence and the same cannot be said to be either perverse and/or contrary to the evidence on record, which calls for the interference of this Court in exercise of appellate jurisdiction. For the reasons stated hereinabove, we see no reason to interfere with the impugned judgment and order passed by the learned trial Court. 6. In view of the above and for the reasons stated hereinabove, the present Appeal fails and the same deserves to be dismissed and is accordingly dismissed.