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2016 DIGILAW 2223 (GUJ)

SURESH KUMAR AJRAMBHAI PANDYA v. STATE OF GUJARAT

2016-12-15

Z.K.SAIYED

body2016
JUDGMENT : Z.K. SAIYED, J. 1. Since all these three Criminal Appeals arise out of the common judgment and order passed by the learned Sessions Judge, Mehsana, they are decided and disposed of together by this common judgment. 2. The appellant - original accused preferred Appeal under Section 374 of the Code of Criminal Procedure (hereinafter referred to as the "Code"), being Criminal Appeal No.818 of 2000, the State preferred Appeal against the acquittal of the accused, under Section 378(1) (3) of the Code, being Criminal Appeal No.930 of 2000 and also preferred another Appeal for enhancement of the sentence under Section 377 of the Code, being Criminal Appeal No.931 of 2000, against the judgment and order passed by the learned Sessions Judge, Mehsana, in Sessions Case No.86 of 2000 dated 11.8.2000, whereby the learned Sessions Judge convicted and sentenced the appellant in Criminal Appeal No.818 of 2000, to undergo sentence of one and half years rigorous imprisonment and to pay a fine of Rs.500/-, in default, to further undergo 15 days rigorous imprisonment. The State preferred Criminal Appeal No.930 of 2000 against acquittal of the another accused persons in Criminal Appeal No.930 of 2000 and also preferred Criminal Appeal No.931 of 2000 for enhancement of the sentence imposed upon the appellant in Criminal Appeal No.818 of 2000. Brief facts which are necessary to dispose of these Appeals are recapitulated as under: As per the complaint lodged by the complainant Parsottambhai Muljibhai Joshi (Harijan), the complainant's elder daughter namely Bhartiben married before nine years from the incident, with the accused No.1 - Sureshbhai Ajrambhai Pandya and due to marriage, there are three children. The accused was doing the job in Life Insurance Corporation. It is also the case of the prosecution that the in-laws of the deceased Bhartiben were harassing her mentally and physically and due to that reason, the deceased came back to her parental home on three or four occasions and on one occasion, she stayed at parental home for two and half years. It is also the case of the prosecution that the deceased had talked to her parents as well as her family members about demand of dowry made by her in-laws, when she came at her parental home. It is also the case of the prosecution that the accused meted out cruelty upon the deceased since last eight years from the incident. It is also the case of the prosecution that the accused meted out cruelty upon the deceased since last eight years from the incident. Due to such harassment and cruelty, on 13.12.1999 at about 5:00 p.m, the deceased, as a last resort, poured kerosene on herself and set her at fire and died. Therefore, the complaint was lodged with the Vijapur Police Station for the offences punishable under Sections 498(A) and 306 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. Thereafter, investigation was started and the dead body of deceased was sent for post mortum, inquest panchnama was drawn, panchnama was also prepared and statements of witnesses were recorded. After filing of the charge-sheet against the accused before the learned Judicial Magistrate First Class, Vijapur, and thereafter, the case was committed to the Court of Sessions, where the Sessions Case No.86 of 2000 is registered. The Sessions Court framed the charge at Exhibit 5 against the accused and they did not plead guilty. 3. In support of the prosecution case, the prosecution examined following witnesses : Sr. No. Name of witnesses Exhibit 1 Bipinkumar Karsandas Solanki, MO 21 2 Narmadaben Jayantilal 23 3 Parsottambhai Muljibhai Joshi, Complainant 25 4 Savitaben Parsottam Joshi 27 5 Hansaben Parsottam 28 6 Hirabhai Ghemarbhai 30 7 Leelaben Babulal Pandya 31 8 Jethabhai Girdharbhai 32 9 Mafatlal Varubhai 33 10 Kanjibhai Naranbhai Makwana, IO 35 4. The prosecution produced following documentary evidence: Sr. No. Document Exhibit 1 Depute order 12 2 Yadi issued by PSI to PSO 13 3 Inquest panchnama 14 4 Panchnama - place of offence 15 5 Ravangi Nondh forwarded to FSL for Muddamal 16 6 Receipt issued by FSL for Muddamal 17 7 Forwarding letter issued by FSL 18 8 FSL report 19 9 PM Note 22 10 Letter written by deceased to her husband 26 11 Yadi of articles given on "Simant" occasion of the deceased 29 12 Letter issued by Vadnagar Brahman Vastipanch 34 13 Complaint 36 5. Thereafter, after filing of closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure was recorded. The accused disclosed that they are innocent and there was no provocation, instigation or abetment on their part upon the deceased and submitted that false case is filed against them. 6. Thereafter, after filing of closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure was recorded. The accused disclosed that they are innocent and there was no provocation, instigation or abetment on their part upon the deceased and submitted that false case is filed against them. 6. Then arguments of both the parties were heard and after perusal of the evidence and statements made by the parties, the learned trial Judge after considering the submission, passed the impugned judgment and order. Therefore, present Appeals are filed by the accused and State respectively. 7. Learned advocate Mr. Mehul S. Shah appearing for the appellant - accused submitted that the impugned judgment and order is contrary to the evidence produced by the prosecution and the evidence are not reliable evidence. He also submitted that letter at Exhibit 26 written by the deceased Bhartiben, which is clearly reflected about the attitude with the deceased, but the said letter was not recovered by the investigating agency. He further submitted that there was no harassment on the part of the accused, which attracts the provisions of Section 306 of the Indian Penal Code. Even there was no demand of dowry during the marriage span on the part of the accused. He also submitted that even no prosecution witness has stated about the harassment caused to the deceased by the accused persons and from the evidence, it is crystal clear that the deceased was happy with the accused and not a solitary incident of harassment was occurred during the marriage span. He also submitted that out of wedlock, there were two children and the marriage span was of 9 years. He also submitted that the witnesses examined by the prosecution are contrary to each other and contrary to the documents produced by the prosecution. He therefore, submitted that in view of the above, it cannot be said that the accused committed offence under Section 498 of the Indian Penal Code because the prosecution has not proved the instigation, abetment or provocation on the part of the accused. 8. Learned advocate Mr. Mehul Shah submitted that the complainant himself has not stated in his evidence that when the dowry was demanded from the accused, even what amount and which golden ornaments were demanded by the accused. 8. Learned advocate Mr. Mehul Shah submitted that the complainant himself has not stated in his evidence that when the dowry was demanded from the accused, even what amount and which golden ornaments were demanded by the accused. The complainant only raised general allegations of dowry, but there is no any cogent evidence produced by the prosecution. He also submitted that except P.W.3 and P.W.4, no witnesses have disclosed such thing, which is narrated by the complainant in complaint as well as in the evidence of P.W.3 and P.W.4. He also submitted that when the incident took place, the appellant was not at home and he was at his service. He also submitted that the in-laws i.e. parents of the appellant - accused No.1 are very old aged persons. He, therefore, submitted that in absence of any cogent evidence against the accused, the so-called offence under Section 498(A) and 306 of the Indian Penal Code cannot be said to be proved by the prosecution. He further submitted that in the present case, there is no incident of harassing and causing any kind of mental pain or torture to the deceased by accused, come out and therefore, there is no question of offence as alleged against the accused. He also submitted that the learned Sessions Judge has not considered the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, while passing impugned judgment and order of conviction and sentence. 9. In view of the aforesaid submissions, learned advocate for the appellant has prayed to allow present Appeal by quashing and setting aside the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge. 10. Learned APP Mr. Rakesh Patel for the respondent - State, strongly opposed the Appeal and supported the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge. He submitted that the learned Sessions Judge has rightly passed the impugned judgment and order by considering the documents produced on record, so far as the appellant in Criminal Appeal No.818 of 2000 is concerned. He also submitted that respondents in Criminal Appeal No.930 of 2000 are required to be held guilty because the learned Sessions Judge has wrongly acquitted them. He also submitted that all the accused have committed the alleged offences and the prosecution has proved the same beyond reasonable doubt. He also submitted that respondents in Criminal Appeal No.930 of 2000 are required to be held guilty because the learned Sessions Judge has wrongly acquitted them. He also submitted that all the accused have committed the alleged offences and the prosecution has proved the same beyond reasonable doubt. He also submitted that the deceased was subjected to the cruelty by the accused and therefore, the deceased was compelled to end her life by committing suicide. He also submitted that if there was no any kind of harassment or cruelty upon the deceased by the accused, then the deceased could not think for suicide as she has two children. But there was no way with the deceased due to cruelty meted out by the accused and therefore, she committed suicide. He also submitted that the witnesses examined by the prosecution as well as the documents produced on record, the case is clearly established by the prosecution that the accused were harassing the deceased and therefore, the deceased committed suicide. He also submitted that there is no contravention in the evidence of witnesses and the documents produced on records, are corroborated with the evidence of witnesses. He read the provisions of Section 498(A) of the Indian Penal Code and submitted that before the incident, whenever the deceased came at her parental home, she made complaint about the harassment caused by the accused on the issue dowry. He also submitted that even as per the provisions of Section 306 of the Indian Penal Code, the offence is established against the accused because there was provocation, instigation and abetment on the part of the accused are very well proved by the prosecution. He also submitted that the marriage of the deceased and accused No.1 is more than 7 years. He therefore, submitted that the conviction and sentence imposed upon appellant of Criminal Appeal No.818 of 2000 is required to be enhanced as the learned Sessions Judge has imposed the minimum sentence. He also submitted that the respondent of Criminal Appeal No.930 of 2000 are required to be convicted as they have played material role and therefore, the deceased committed suicide. He also submitted that Criminal Appeal No.818 of 2000 may kindly be dismissed. 11. Heard learned advocates appearing for the parties and perused the documents produced on record. He also submitted that the respondent of Criminal Appeal No.930 of 2000 are required to be convicted as they have played material role and therefore, the deceased committed suicide. He also submitted that Criminal Appeal No.818 of 2000 may kindly be dismissed. 11. Heard learned advocates appearing for the parties and perused the documents produced on record. It appears that deceased Bhartiben married before nine years from the incident, with the accused No.1 - Sureshbhai Ajrambhai Pandya and due to marriage, there are three children. The accused was doing the job in Life Insurance Corporation. The deceased had talked to her parents as well as her family members about demand of dowry made by her in-laws, when she came at her parental home. The accused meted out cruelty upon the deceased since last eight years from the incident. Due to such harassment and cruelty, on 13.12.1999 at about 5:00 p.m, the deceased, as a last resort, poured kerosene on herself and set her at fire and died. Therefore, the complaint was lodged with the Vijapur Police Station for the offences punishable under Sections 498(A) and 306 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. 12. It appears that the complaint is lodged by the complainant who is father of the deceased and said complaint is at Exhibit 36. The complainant Pursottambhai Muljibhai Joshi examined at Exhibit 25 as P.W.3 has stated that the accused persons demanded dowry as the deceased said to him and family members, whenever she came at her parental home and due to harassment of the accused, the deceased on two to four occasions, stayed at parental home for some time. Even the community people have interfered in the said matter and persuaded to the in-laws of the deceased. He also stated that it is false that there was no dispute of dowry at matrimonial home of the deceased. Said version is supported by P.W.4 - Savitaben Parsottambhai examined at Exhibit 27 and she stated that in-laws of the deceased were harassing the deceased on the issue of dowry. This Court has also perused the evidence of Hirabhai Ghemarbhai examined at Exhibit 30, Leelaben Babulal Pandya examined at Exhibit 31, Jethabhai Girdharbhai examined at Exhibit 32, Mafatlal Varubhai examined at Exhibit 33 etc. and said witnesses have supported the version of the complainant. This Court has also perused the evidence of Hirabhai Ghemarbhai examined at Exhibit 30, Leelaben Babulal Pandya examined at Exhibit 31, Jethabhai Girdharbhai examined at Exhibit 32, Mafatlal Varubhai examined at Exhibit 33 etc. and said witnesses have supported the version of the complainant. This Court also perused the P.M. Note and it appears that due to burn injuries, the deceased died. This Court also perused the Panchnama, complaint, FSL report along with other documentary evidence produced on record. 13. This Court has perused the provisions of the Section 498(A) of the Code of Criminal Procedure and from the same, it clearly transpires that the husband and relative of the woman subjecting the woman to cruelty shall be punished. Section 498(A) 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. 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.]" 14. As per the provisions of Section 498A, here from the evidence of the witnesses and documentary evidence, it is clearly established that the in-laws were harassing the deceased on the issue of demand of dowry and even the deceased whenever went to her parental home, said about the same to her parents and family members. Therefore, this Court has no reason to disturb the findings recorded by the trial Court for conviction and sentence for the appellant accused. 15. Therefore, this Court has no reason to disturb the findings recorded by the trial Court for conviction and sentence for the appellant accused. 15. This Court has also perused the provisions of Section 306 of the Indian Penal Code and looking to the versions of the prosecution witnesses, it is clearly established that the deceased was instigated or provoked to commit suicide by causing torturing her on the issue of dowry. Therefore, the accused has abetted the deceased and thereby, it can be said that the accused committed the alleged offence. 16. From the statement recorded under Section 313 of the Code of Criminal Procedure, it appears that the accused could not make his defence properly and even he has not denied properly about the allegations made by the prosecution. 17. Learned advocate Mr. Mehul Shah appearing for the appellant has relied upon the decisions. Same are perused by this Court but they are not helpful the present case, as in this case, it is clearly established that the deceased was subjected to the cruelty before the incident took place and the deceased had already talked about harassment to her parents and family members, when she went to her parental home. Therefore, it cannot be said that the accused has not instigated, provoked or abetted the deceased, which resulted into the suicide. 18. Here in this case, it is established that the prosecution has proved the case beyond reasonable doubt and therefore, there is no reason to disturb the judgment and order passed by the learned Sessions Judge in so far as the Criminal Appeal No.818 of 2000 is concerned. It appears that the incident took place on 13.12.1999 and the learned Sessions Judge has passed the judgment and order on 11.8.2000. Therefore, after such a long period, it is not proper to send the respondent Nos.2 and 3, who were senior citizens at the time of filing of Criminal Appeal No.930 of 2000 and now, at present, they are of more than 80 to 85 years. Therefore, the Appeal i.e. Criminal Appeal No.930 of 2000 filed by the State is dismissed. 19. Therefore, the Appeal i.e. Criminal Appeal No.930 of 2000 filed by the State is dismissed. 19. So far as Criminal Appeal No.931 of 2000 is concerned, the learned Sessions Judge has rightly imposed the sentence and therefore, no interference is required to be called for by this Court, as the accused has two children and there is no one who can look after them. Therefore, Criminal Appeal No.931 of 2000 is also dismissed. 20. Now, so far as Criminal Appeal No.818 of 2000 is concerned, the learned Sessions Judge has rightly passed the judgment and order of conviction and sentence dated 11.8.2000 in Sessions Case No.86 of 2000 and therefore, same is hereby confirmed. 21. As the accused is now on bail, he is ordered to surrender before the Jail Authority within a four weeks from today. Bail bonds stands cancelled. Record and Proceedings are ordered to be sent back to the concerned trial Court forthwith.