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2016 DIGILAW 2195 (GUJ)

Devshibhai Mavjibhai Vekaria v. State of Gujarat

2016-11-28

Z.K.SAIYED

body2016
JUDGMENT : Z.K. Saiyed, J. The appellants - original accused have preferred this appeal under Section 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 15.7.2006 passed by the learned Presiding Officer, Sixth Fast Track Court, Gondal, Camp at Jetpur, in Sessions Case No.127 of 1999, whereby, the learned Judge has convicted the accused for the offence punishable under Section 498A read with Section 14 of the Indian Penal Code and sentenced each of them to undergo R.I. for 02 years and to pay a fine of Rs.2000/, in default, to undergo further S.I. for 03 months. The accused persons are also convicted for the offence punishable under Section 306 read with 114 of the Indian Penal Code and each of them is to undergo R.I. for 03 years and to pay a fine of Rs.5000/-, in default, to undergo further S.I. 06 months. The learned Judge has ordered that substantive sentences are to run concurrently. 2. The brief facts of the prosecution case are as under: The present incident has happened on 8.8.1999 at about 9:00 a.m. in the house of the appellants situated in the area of Trakudipara, Sheri No.18 in Jetpur Town. In this incident one Ritaben, who was wife of appellant No.5 and daughter-in-law of appellant Nos.1 and 2 along with her minor son Paras @ Munna aged about 02 years sutained burn injuries and ultimately they succumbed to the injuries. The deceased Ritaben first set on fire her son Paras and thereafter she sprinkled kerosene on herself and set herself on fire and thereby committed suicide. The deceased Ritaben was subjected to mental cruelty by the appellants-accused as she was not doing agriculture work. The marriage of deceased Ritaben and appellant No.5 was solemnized four years prior to the date of incident. The complainant Premjibhai Lalabhai Ramolia is father of deceased Ritaben. It is the case of the prosecution that on 8.8.1999 during morning hours when the complainant Premjibhai was present at his Vadi along with his two sons at Village : Dudhivadar, Taluka : Jamkandorna, Dist. Rajkot, two persons viz. The complainant Premjibhai Lalabhai Ramolia is father of deceased Ritaben. It is the case of the prosecution that on 8.8.1999 during morning hours when the complainant Premjibhai was present at his Vadi along with his two sons at Village : Dudhivadar, Taluka : Jamkandorna, Dist. Rajkot, two persons viz. Parshottambhai and Lakhmanbhai came there at Jetpur in a taxi and informed the complainant that his daughter has sustained burns injuries and, therefore, the complainant went to his house in the village and informed his wife Jayaben and his elder daughter Bhavnaben and, thereafter, all these persons viz. the complainant Premjibhai, his uncle Mepabhai, his wife Jayaben and his elder daughter Bhavnaben came to Jetpur and went to the house of appellants, where the complainant came to know that deceased Ritaben and her son Paras @ Munno have been taken to Government Hospital at Jetpur and, therefore, all these persons went to Government Hospital at Jetpur, where they came to know that Rita and Munno have succumbed to the injuries and dead bodies were lying in the postmortem room. After the marriage the deceased Ritaben used to come to the house of her parents frequently. The deceased Ritaben was subjected to mental cruelty as she was not helping in agricultural work. The complainant Premjibhai lodged complaint on 8.8.1999 at 2:45 p.m. in the hospital before Police Inspector of Jetpur City Police Station. Prior to that, the incident was registered as Accidental Death Inquiry Case No.36 of 1999 in Jetpur City Police Station and Police Inspector prepared inquest panchnama at 10:45 a.m. on 8.8.1999 at the Government Hospital, Jetpur. Thereafter panchnama of the scene of offence was prepared at 12:30 p.m. and thereafter complaint of Premjibhai was recorded at 2:45 p.m. 3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge sheet came to be filed against them in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. 4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried. 5. In order to bring home the charges against the accused persons, prosecution examined several witnesses and also produced documentary evidence. 6. 4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried. 5. In order to bring home the charges against the accused persons, prosecution examined several witnesses and also produced documentary evidence. 6. Thereafter, after filing closing pursis by the prosecution, further statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them. 7. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellants-accused as stated above. 8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 15.7.2006 passed by the learned Presiding Officer, Sixth Fast Track Court, Gondal, Camp at Jetpur, in Sessions Case No.127 of 1999, the appellants have preferred the present appeal before this Court. 9. Heard Mr. H.S. Tolia, learned advocate for the appellants. He has contended that there are number of inherent infirmities in the prosecution case which goes to the root of the case and seriously affect the credibility of the prosecution case. The ingredients for the offence punishable under Section 498A read with Section 114 of the Indian Penal Code as well as for the offence punishable under Section 306 read with Section 114 of the Indian Penal Code are not attracted. 10. He has contended that it is only allegation against the appellants that deceased was subjected to mental cruelty as she was not helping in the agriculture work. He has contended that it is an admitted position that there is no other allegation against the appellants. He has contended that prosecution story is highly unnatural and improbable. He has contended that prosecution has miserably failed to prove its case beyond reasonable doubt. 11. He has contended that learned Judge has not appreciated the facts, evidence and circumstances of the case as well as established principles of law in its proper perspective. He has contended that the learned Judge has not considered inherent infirmities found in the prosecution case which has resulted in miscarriage of justice. 12. 11. He has contended that learned Judge has not appreciated the facts, evidence and circumstances of the case as well as established principles of law in its proper perspective. He has contended that the learned Judge has not considered inherent infirmities found in the prosecution case which has resulted in miscarriage of justice. 12. He has contended that learned Judge has failed to appreciate that the complainant-Premjibhai has admitted in his evidence at Ex.23 that there was no any problem in the matrimonial life of his daughter in the beginning years. He has contended that his daughter was allowed to come at his house frequently on various occasions. The complainant has also admitted that they used to come to the house of the appellants. After the marriage span of 02 years shreemant ceremony of deceased Ritaben was performed at the house of appellants at Jetpur. All the family members of the complainant had gone to Jetpur and after performing the ceremony Ritaben was brought at his house. She resided for 08 to 09 months at the house of complainant and thereafter she delivered a boy child. He has contended that complainant has admitted that during the period for which she resided at his house, his son-in-law and his family members used to visit his house and they were residing happily. He has contended that looking to the admission given by the complainant in his cross-examination, it cannot be said that deceased Ritaben was subjected to any mental or physical cruelty. 13. He has contended that it is only allegation that deceased Ritaben was subjected to mental cruelty as she was not helping in agriculture work. He has contended that this cannot be said to be abetment which may lead any person to commit suicide. Therefore, ingredients for the offence punishable under Sections 306 read with Section 114 of the Indian Penal Code cannot be said to have been attracted in the instance case. He has contended that looking to the oral evidence given by the prosecution witnesses it cannot be said that deceased Ritaben was subjected to mental or physical cruelty. He has contended that prosecution witnesses have made material improvements in their evidence at the trial stage which goes to the root of the case and affects credibility and trustworthiness of the prosecution case. 14. He has contended that Court should keep itself away from human sentiments and feelings. He has contended that prosecution witnesses have made material improvements in their evidence at the trial stage which goes to the root of the case and affects credibility and trustworthiness of the prosecution case. 14. He has contended that Court should keep itself away from human sentiments and feelings. The Court has to see whether there is legal evidence on record or not. It appears from the findings of the learned Judge that they are based on human sentiments and feelings which are far from the legal evidence. He has contended that according to the prosecution case, deceased Ritaben informed her parents that she was subjected to cruelty by the appellants as she was not helping in agriculture work. This part of evidence is inadmissible in evidence as per the principles laid down by this Court in the case of State of Gujarat v. Bharatbhai Balubhai Lad & Ors., reported in 2006 (1) GLR 514 . 15. He has contended that in order to prove ingredients of the offence under Sections 107 and 306 of the Indian Penal Code there must be evidence to show that there was harassment and torture to commit suicide. Mere allegation of harassment or cruelty which leads a woman to commit suicide is not sufficient to constitute offence under Section 306 of the Indian Penal Code. 16. He has contended that sister-in-law was not present at the place of offence at the time of incident in question. He has contended that absence of the sister-in-law is required to be considered in her favour and benefit of doubt is required to be given to her. 17. In support of his above submissions he has relied on the decisions in the case of Inderpal v. State of Madhya Pradesh, 2001 (1) SCC 736 , M. Gananath Pattnaik v. State of Orissa, ( 2002 (2) SCC 619 , State of Gujarat v. Bharatbhai Balubhai Lad & Ors., 2006 (1) GLH 718 , Subhashbhai Chandubhai Patel v. State of Gujarat, 2006(3) GLH 724 . Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside. 18. Heard Mr. Rakesh Patel, learned APP for the respondent-State. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside. 18. Heard Mr. Rakesh Patel, learned APP for the respondent-State. He has contended that in the present case it is deposed by the complainant and other members of family of deceased that prior to marriage it was accepted by the present appellant that deceased is double graduate lady and she will not work in agriculture field. He has contended that deceased disclosed to the complainant, father, mother, brother and family members that all the appellants are forcing her to do agricultural work in the field. Due to the mental cruelty and rude behaviour meted out to the deceased by the appellants the deceased lost her tolerance. He has contended that prosecution witnesses have disclosed that when the understanding of not working in the agricultural field was made, it was an agreement between both the parties. The forceful conduct of the appellants resulted in abetment by the appellants to the deceased in the form of instigation and provocation to commit suicide. In the result of this act the deceased has committed suicide. Therefore, the offence under Sections 498A, 306 and 114 of the Indian Penal Code is proved beyond reasonable doubt. 19. He has further contended that the expert who has performed postmortem of both the dead bodies of the victim has disclosed in column No.17 of the postmortem note that both the victims have received burns injuries and due to those injuries both the victims have expired. He has drawn attention of the Court to Section 8 of the Evidence Act and contended that looking to the conduct of all the appellants-accused the understanding of not working in the field by the deceased and the said condition being agreed upon by the appellants is relevant. Therefore, motive, preparation and previous or subsequent conduct is proved by the prosecution against the appellants beyond the reasonable doubt. He has contended that in such type of cruel cases no leniency can be shown to the accused persons. 20. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolute, just and proper judgment. He has contended that in such type of cruel cases no leniency can be shown to the accused persons. 20. He has contended that the learned Judge has considered each and every aspect of the matter and has passed absolute, just and proper judgment. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. 21. I have heard the learned advocates for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned advocates for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witness-complainant and also perused the charge framed against the appellants. 22. The PW No. 1 Premjibhai Lalabapa and PW No. 4 Dr. Nikhitaben Chandrakantbhai Pujara, who has performed postmortem of body of deceased, have disclosed that cause of death of the deceased is burns injuries. The contents of Ex. 30 - inquest panchnama, are supported by oral evidence of PW No. 4. In support of case of prosecution panchnama of place is produced at Ex.31 and it is compared with the contents of Ex.30, 41, 42 which goes to show that cause of death is proved beyond reasonable doubt through oral and documentary evidence. So far as charges of harassment and cruelty meted out by the appellants to the deceased is concerned, the complainant, mother of the deceased and uncle at Ex.23, 36 and 37 have disclosed through oral version that deceased committed suicide because she was forced to go to field for agricultural work and those was in understanding between the both the sides before marriage that deceased is double graduate and that she will not do agriculture work. Here it is relevant to refer to Section 498A of the Indian Penal Code, which reads as under : "498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purposes of this section, "cruelty" means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]" I have compared the meaning of wilful conduct of all the accused persons disclosed by the prosecution witnesses on record. There was an agreement between the appellants and deceased and her family members that she will not do agricultural work. 23. I have gone through the ingredients of provisions of Section 8 of the Evidence Act, which reads as under : "8. Motive, preparation and previous or subsequent conduct Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1. The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant." 24. Mr. Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant." 24. Mr. Tolia, learned advocate for the appellants has contended, through observations made in the decisions of Hon'ble Supreme Court as well as of this Court that what is disclosed by the prosecution witnesses regarding cruelty and behaviour of the present appellants is hearsay evidence. As per Section 8 of the Evidence Act, the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct is relevant. The wilful act or conduct ought to be proximate cause in order to bring home the charge under Section 498A and not de hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498A. Overt act in the form of pressure exerted by the appellants accused to force deceased to do agriculture work in the field is prima facie established. 25. In the case of Mohd. Hoshan v. State of Andhra Pradesh, AIR 2002 SC 3270 , it has been held that, whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or be decided on its own facts to decide whether mental cruelty was established or not. 26. I have perused evidence of complainant, mother and brother of the deceased. From the same, I find that it is proved beyond reasonable doubt that deceased was double graduate and between the family members of the deceased the appellants there was understanding prior to marriage that she will not do agriculture work. The husband of the deceased is only tenth standard passed. 27. The learned APP drew attention of the Court that marriage span of the deceased was only four years and he argued on Section 113A of the Evidence on the ground of presumption as to abetment of suicide by a married woman. The husband of the deceased is only tenth standard passed. 27. The learned APP drew attention of the Court that marriage span of the deceased was only four years and he argued on Section 113A of the Evidence on the ground of presumption as to abetment of suicide by a married woman. In the case of Sushil Kumar Sharma v. Union of India the Hon'ble Apex Court held that, the basic difference between the two sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by husband or as per the earlier provision suicide is abetted and intended. It is true that difference can be considered through oral evidence as well as conduct of the appellants accused. In the present case abetment and in result of abetment, deceased was provoked and lost her temperament and tolerance and committed suicide is established. From the evidence and versions of the witnesses it is proved that appellants-accused have abetted, instigated and provoked deceased to commit suicide. 28. So far as question of alibi is concerned, in the case of Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109 , it is held that onus to establish alibi is on the accused and if such onus is not discharged the Appellate Court will not interfere. 29. In view of above, I am in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the learned trial Court and I am of the view that no other conclusion except the one reached by the learned trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 30. Hence, in view of the foregoing reasons, present appeal is dismissed. The judgment and order of conviction and sentence dated 15.7.2006 passed by the learned Presiding Officer, Sixth Fast Track Court, Gondal, Camp at Jetpur, in Sessions Case No.127 of 1999, is hereby confirmed. Bail bond, if any, stands cancelled. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.