Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 654 (GUJ)

Ramaji Abharaji Thakor v. State of Gujarat

2016-03-22

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 70 of 2009 by the Addl. Sessions Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad dated 27.3.2014 recording conviction of the appellant, accused No. 1, for the offence under sec. 498A of IPC and imposing sentence as stated in detail in the judgment and order and acquittal for the offence under sec. 306 of IPC and also recording acquittal of accused No. 3 for the offence under sec. 306, 498A r/w sec. 114 of IPC giving benefit of doubt. 2. The facts of the case, briefly summarized, are as follows: "2.1 The deceased daughter of the complainant was married to the appellant accused in 2001. After one year as the appellant accused was having the habit of liquor, the same was not liked by the deceased daughter of the complainant and therefore there used to be quarrel and the appellant used to beat her and cause harassment. Therefore, the deceased daughter of the complainant used to inform the complainant-father and therefore she was brought back to the parental house in the year 2002. Thereafter in the year 2008 after some compromise she was again sent back to the matrimonial home. However, in February 2001, when the deceased daughter of the complainant visited the parental house she had informed that the harassment is continued. The complainant father, however, in order to save the marriage, is said to have sent her back to the matrimonial house and he received a message on his mobile from Harisinh Thakore informing that he had received anonymous call that the deceased daughter of the complainant is burnt and therefore he along with the brother and cousins went to the house of the deceased where she was found dead and the members of the family had run away. Therefore, a complaint was lodged which has been registered as FIR No. 34/2009 before the Sarkhej Police Station. 2.2 After the investigation was over, the charge-sheet came to be filed and as the offences are triable by the court of sessions, it was committed to the Sessions Court, Ahmedabad (Rural) at Mirzapur. 2.3 In order to bring home the charges levelled against the appellant-accused, the prosecution examined the witnesses including the complainant and other witnesses. 2.4 The learned Addl. 2.3 In order to bring home the charges levelled against the appellant-accused, the prosecution examined the witnesses including the complainant and other witnesses. 2.4 The learned Addl. Sessions Judge, Ahmedabad (Rural) at Mirzapur proceeded with the trial and recorded the evidence of the prosecution witnesses. After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of CrPC was recorded. 2.5 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. Sessions Judge, Ahmedabad (Rural) at Mirzapur recorded conviction of the accused as stated above. 2.6 It is this judgment and order which has been assailed by the appellant in the present appeal on the grounds stated in the memo of appeal." 3. Heard learned advocate Shri Devang Joshi for the appellant-accused and learned APP Shri HL Jani for the respondent-State. 4. Learned advocate Shri Joshi referred to the testimony of Dr. Ramanlal, PW-1 at exh. 12 and submitted that he had performed the postmortem. He also referred to the testimony of complainant-father of the victim, PW-2, exh. 23 and his complaint at exh. 24. Learned advocate Shri Joshi submitted that in fact the vardhi was sent regarding the alleged offence. He submitted that the vardhi at exh. 26 could have been treated as FIR which does not disclose commission of any such offence. However, later on the FIR was registered incorporating the allegations regarding harassment on the basis of which the aforesaid FIR was registered. Learned advocate Shri Joshi also referred to the papers at length and submitted that the deceased belonged to an affluent family and she was having some disability or infirmity and was therefore married to the appellant-accused who was belonging to an average family. He submitted that this aspect coupled with the fact that the deceased was educated up to Std. X, whereas the accused was illiterate resulted in matrimonial discord. Learned advocate Shri Joshi submitted that though harassment is said to have started after the marriage she had been taken to the parental house and again in 2008 was sent to the matrimonial house. 5. Learned advocate Shri Joshi therefore submitted that had there been any harassment or cruelty meted out to her, she would not have been sent back to the matrimonial house. 5. Learned advocate Shri Joshi therefore submitted that had there been any harassment or cruelty meted out to her, she would not have been sent back to the matrimonial house. He submitted that the fact that the complainant father did not console her in her disturbed marital life and sent her back to the matrimonial house could have been the cause for her suicide. He therefore submitted that as acquittal has been recorded for the offence under sec. 306, there is no justification for recording conviction for the offence under sec. 498A. He also referred to the testimony of PW-4 at exh. 34 and submitted that there appears to be exaggeration. He submitted that in fact the prosecution has examined only the relatives and no independent witnesses are examined. Learned advocate Shri Joshi submitted that such witnesses are always interested witnesses and therefore the evidence could not have been accepted as Gospel truth. 6. Lastly, learned advocate Shri Joshi submitted that as observed in the impugned judgment, the acquittal has been recorded for the offence under sec. 306 and therefore for the conviction recorded for the offence under sec. 498A, benefit under the Probation of Offenders Act may be given to the appellant-accused. 7. Learned APP Shri Jani referred to the testimony of the complainant-father, PW-2 at exh. 23 and the testimony of other witnesses including PW-4 at exh. 34. He submitted that harassment and ill-treatment had started after one year of marriage in 2001. He submitted that as stated by the complainant-father, harassment was caused to her which she had complained whenever she visited the parental house. Similarly, when the harassment continued, the father is said to have brought her back to the parental house and only after compromise and assurance she was sent back to the matrimonial house. Learned APP Shri Jani submitted that compromise would suggest about matrimonial discord and harassment caused to her. Learned APP Shri Jani therefore submitted that continuous harassment in spite of efforts made and opportunity for improvement granted to the appellant when it continued till she committed suicide could be said to be the cause for the suicide. He submitted that the deceased 3 was in a mental state where continuous torture or harassment would gradually create the pressure mounted on the victim and when one feels that there is no further hope would be driven to commit suicide. 8. He submitted that the deceased 3 was in a mental state where continuous torture or harassment would gradually create the pressure mounted on the victim and when one feels that there is no further hope would be driven to commit suicide. 8. Learned APP Shri Jani referred to sec. 498A and submitted that the Explanation refers to cruelty. He submitted that the conduct and the harassment of such a nature which may drive a woman to commit suicide would amount to cruelty. He submitted that in the facts of the case it is clearly established as recorded by the court below. 9. Learned APP Shri Jani submitted that in fact he had reservation for acquittal of the accused for the offence under sec. 306 of IPC. However, he submitted that the court below could also have considered the conduct of the appellant and his family members coupled with the panchnama suggesting the blood stains which again raises doubt about the correct version. He, therefore, submitted that the present appeal may not be entertained. 10. In view of these rival submissions, it is required to be seen whether the present appeal deserves consideration. 11. As it transpires from the material and evidence on record, there is no dispute that there was harassment after the marriage which she complained whenever she visited the parental house. In fact, as it continued the complainant father is said to have brought her back to the parental house. There was some separation and thereafter on compromise and assurance she was sent to the matrimonial house. The compromise and the incident itself would suggest that the complainant and the deceased victim had made efforts to save the marriage and had tried to tolerate the harassment. However, in spite of the compromise when it was not fruitful, the deceased committed suicide. As acquittal is recorded for the offence under sec. 306, it may not be elaborated in absence of the appeal by the State. 12. However, for he purpose of appreciating the present appeal qua the conviction for the offence under sec. 498A, it is required to be considered that constant harassment has been caused coupled with the fact that the appellant was habituated to drinking. 306, it may not be elaborated in absence of the appeal by the State. 12. However, for he purpose of appreciating the present appeal qua the conviction for the offence under sec. 498A, it is required to be considered that constant harassment has been caused coupled with the fact that the appellant was habituated to drinking. It was the constant matrimonial discord as stated above coupled with the fact that in spite of every effort and when it failed to bring any result the deceased may have committed suicide feeling dejected and it is this harassment or attitude which has driven her to commit suicide. 13. The provisions of sec. 498A with the Explanation clearly provide for the harassment which may be termed as cruelty and it would certainly fall within the definition of cruelty. The submissions which have been made by learned advocate Shri Joshi referring to the aspect of her disability or background and the economic status etc. has no relevance inasmuch as the marriage was performed and the appellant has married her willingly and therefore such a ground could not be accepted. In any view of the matter, even if there was matrimonial discord, it would not justify any harassment and ill-treatment which would amount to cruelty like beating, abusing with the habit of drinking. Therefore, it is not a justification. 14. Moreover, in the conduct of the appellant and his family members also deserve consideration that when the complainant father reached the deceased was found but the appellant and family members were missing and had run away, reflecting their conduct and guilty conscious. Had there not been any such cause they would not have run away or at least they would have tried to save her. Therefore, taking into account the totality of the aforesaid circumstances and the appreciation of material and evidence, it does not call for any interference with the impugned judgment and order recording conviction for the offence under sec. 498A. 15. One another facet of the submission that the vardhi at exh. 26 was the first information regarding the cognizable offence and therefore the FIR which has been filed subsequently with the necessary ingredients for the offence was improvised is misconceived. It is well-settled in catena of judicial pronouncements that the vardhi which is an intimation or information to the police in a cryptic manner may not be treated as FIR. 26 was the first information regarding the cognizable offence and therefore the FIR which has been filed subsequently with the necessary ingredients for the offence was improvised is misconceived. It is well-settled in catena of judicial pronouncements that the vardhi which is an intimation or information to the police in a cryptic manner may not be treated as FIR. Therefore, it is not necessary that the vardhi which has been made is to be treated as FIR and the subsequent FIR is improvised version as sought to be canvassed. 16. The submission made by learned advocate Shri Joshi about non-examination of independent witnesses is thoroughly misconceived. It is well-settled that such offences are made within the four walls of the matrimonial house and the witnesses could be family members or relatives and merely because the witnesses are related it would not justify disregarding such evidence merely because they are relatives. The independent witnesses could not have an idea about matrimonial discord as the person is not likely to talk to everybody. Normally, in such circumstance, the parents or close relations like brother, sister, etc. would have the idea about harassment and therefore their evidence is not required to be disregarded on such ground, nor they can be said to be interested witnesses. 17. Further, the submissions made by learned advocate Shri Joshi for grant of benefit under the Probation of Offenders Act also cannot be readily accepted in background of the facts and circumstances. The same submission was made before the Sessions Court at the time of hearing on the sentence and it has been declined. The Probation of Offenders Act gives the discretion to the court in a given circumstance which is required to be exercised with care only if the court is of the opinion that it is a fit case to exercise such discretion granting such benefit under the Probation of Offenders Act. In the facts of the case as discussed above, looking to the conduct as discussed above would not justify grant of any such benefit. 18. The present appeal, therefore, deserves to be dismissed and accordingly stands dismissed. Bail bond shall stand cancelled. FURTHER ORDER At the request made by learned advocate Shri Joshi, time to surrender is granted upto six weeks.