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2019 DIGILAW 66 (GUJ)

Rajesh Bhogilal Darji v. State of Gujarat

2019-01-28

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal is preferred by the appellant – original accused against the judgment and order dated 1.8.2003 passed by learned Additional Sessions & Fast Track Judge, Modasa in Sessions Case No.93 of 2001 whereby the appellant accused has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/-, in default, to undergo simple imprisonment for three months for the offence under section 498-A of Indian Penal Code and also ordered to undergo rigorous imprisonment for five years and to pay fine of Rs.2000/-, in default, to undergo simple imprisonment for six months for the offence under section 306 of Indian Penal Code. 2. The short facts giving rise to the present case are that the marriage of Jyotsnaben was solemnized before five years from the date of the alleged incident. It is the case of the prosecution that the appellant accused was beating Jyotsnaben for trivial issues. It is alleged that mother-in-law and father-in-law were also instigating their son. It is alleged that on the date of lodging the FIR, Jyotsnaben consumed the poisonous substance and thereafter, she died. Ultimately, the complaint came to be lodged against the accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant – original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant – original accused has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Mr.Viral Vyas, learned advocate for Mr.Ashish Dagli, learned advocate for the appellant – original accused has taken this Court through the entire judgment and record and argued that since none of the independent witnesses has supported the case of the prosecution involving the present accused with the crime in question and that parents of the accused were already acquitted by the learned trial Court. He submitted that evidence of parents and brother of the deceased is also hearsay in nature and also not taking case of the prosecution any further to link the accused with the crime in question. He submitted that whatever the parents and brother of the deceased have deposed during the course of examination-in-chief, the same has been clearly admitted by them in the cross examination that they have not stated before the police while giving the statement under section 161 and therefore, their improvements and involving in very grave offence of demanding money etc. came to be disproved in their evidence itself. He further submitted that as admitted by the father of the deceased, the marriage span is clearly established of more than 7 years and the deceased had also male child who is residing along with the present accused at present and no concrete, clinching and connecting evidence is available except hearsay contradictory theory and therefore, benefit of doubt is required to be granted to the present appellant accused. 7. On the other-hand, Ms.Shah, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. 7. On the other-hand, Ms.Shah, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellant - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. She submitted that parents as well as brother of the deceased have clearly and categorically deposed that the present appellant was used to demand money and for not bringing the same, the appellant used to beat Jyotsnaben, due to which, she consumed poisonous substance and succumbed to the injuries. She submitted that the said act is the result of inducement and instigation meted out by the present accused as husband. She also submitted that marriage span is also below 7 years. 8. This Court has heard Mr.Vyas, learned advocate for the appellant - accused and Ms.C.M.Shah, learned APP for the State. 9. As per the prosecution version, due to cruelty and harassment from the accused persons, Jyotsnaben committed suicide and thereby the accused committed the offence punishable under sections 498-A and 306 of IPC. 10. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 11. PW 1 – Dr.Lina Sanskarbhai Patel has been examined at Exh.8. She deposed that she carried out autopsy on dead body of deceased Jyotsnaben and there was cardiac respiratory failure due to consumption of poisonous substance. 12. Serological report at Exh.37 clearly indicates the presence of aluminum phosphide due to which deceased Jyotsnaben succumbed to the injuries and therefore, her death is proved to be suicidal. 13. Now, the question arises for determination of this Court is as to whether deceased Jyotsna had committed suicide due to harassment and cruelty meted out by the present appellant or not. 14. In order to prove the offence, the prosecution examined several witnesses. However, none of the witnesses i.e. panchas of panchnama of recovery of bottle containing poisonous substance, scene of incident and inquest panchnama had supported the case of the prosecution. 14. In order to prove the offence, the prosecution examined several witnesses. However, none of the witnesses i.e. panchas of panchnama of recovery of bottle containing poisonous substance, scene of incident and inquest panchnama had supported the case of the prosecution. The only decisive evidence of parents and brother of the deceased is available on record. 15. PW 7 – Somalal Maganlal Darji who is father of the deceased has deposed that the deceased got married with the present appellant for about six years prior to the incident, due to which, she had delivered male child. Thereafter, the appellant used to pick up quarrel and demanded money and harassing her for not bringing money from him. The witness deposed that the victim deceased previously also consumed poisonous substance and attempted to commit suicide. The witness deposed that the appellant used to beat the deceased and the deceased also visited his house around twenty days prior to the date of incident as she was driven out from her matrimonial home. However, in the cross examination, the witness has admitted that after the death of the deceased, they were sharing tiffin along with the accused and his parents and also holding meetings together to mourn the soul of the deceased. The witness has clearly and categorically admitted in paragraph 10 that he had not mentioned before the police that the present appellant was harassing the deceased. The witness has also admitted that he had not stated before the police that the accused was demanding money from his daughter and her daughter was not brining money, due to which, her husband was beating her. The witness has admitted that he had not stated above fact either in the police statement or in the complaint. The witness has admitted that his daughter left her matrimonial home for about 50 times and visited his house. He has not mentioned such facts before the police. The witness has admitted that his daughter Jyotsnaben got married with the appellant accused for about 7 years prior to the incident and such fact is also stated by him in the police statement. 16. PW 8 – Bakuleshbhai Somabhai has been examined at Exh.25. The witness is the brother of the deceased. The witness has deposed that after about two months from the date of marriage, all the accused were harassing the deceased and beating. 16. PW 8 – Bakuleshbhai Somabhai has been examined at Exh.25. The witness is the brother of the deceased. The witness has deposed that after about two months from the date of marriage, all the accused were harassing the deceased and beating. The witness has deposed that the appellant accused was demanding money and for not providing money, the accused used to beat her sister, due to which, she consumed poisonous substance. In the cross examination, the witness has admitted that he has not stated before the police that after passage of 2 – 3 months period from the date of marriage, the accused started harassing and beating the deceased. The witness has admitted that the deceased had not stated him that the accused appellant and his parents are demanding money and such fact he has not stated before the police. The witness has admitted that he has not stated before the police that her sister was driven out from the house several times. The witness has admitted that the deceased had not stated him that her husband and in-laws were harassing her. 17. PW 10 – Champaben Somabhai has been examined at Exh.31. The witness is the mother of deceased Jyotsnaben. The witness has deposed that appellant accused and his parents were beating the deceased and demanding money from the deceased, due to which, the deceased left matrimonial home. In the cross examination, the witness has admitted that as if the deceased and her husband were residing together happily and happily visiting parental home of the deceased together. The witness has admitted that the appellant was running his tailor shop at Modasa. 18. PW 11 – Manjulaben Ramanlal Darji has been examined at Exh.32. The witness is an independent witness who has stated that while the deceased was at the house of her brother Bakulesh, she intended to visit matrimonial home of the deceased, but she was not permitted by the brother of the deceased. 19. On overall appreciation of the evidence on record, it seen that indisputably, no dying declaration was recorded either by the police or by the Executive Magistrate or the deceased has not given oral dying declaration before any relative and therefore, only decisive oral evidence of her parents and brother is available on record. 19. On overall appreciation of the evidence on record, it seen that indisputably, no dying declaration was recorded either by the police or by the Executive Magistrate or the deceased has not given oral dying declaration before any relative and therefore, only decisive oral evidence of her parents and brother is available on record. On overall evaluation of the aforesaid evidence on record, the said evidence is hearsay in nature which alleged to have been told by the deceased to them but on making comparative evaluation keeping in mind the cross examination wherein whatever the parents and brother of the deceased have admitted, then nothing is turning out involving the present appellant accused with the crime in question as the parents as well as brother of the deceased have clearly admitted that they have neither stated before the police nor in the complaint as regards to demand of money by the present appellant accused from the deceased and for not fulfilling the said demand by the deceased, the appellant used to beat the deceased and harassing her, due to which, she consumed poisonous substance and therefore, learned trial Court has wrongfully convicted the present appellant basing its findings upon the presumptions merely. 20. In above view of the matter, this Court is of the considered opinion that conviction recorded by learned trial court is not sustainable and deserves to be quashed and set aside. 21. Therefore, the appeal succeeds and stands allowed. The impugned judgment and order dated 1.8.2003 passed by learned Additional Sessions & Fast Track Judge, Modasa in Sessions Case No.93 of 2001 is quashed and set aside. The appellant accused be set at liberty if not required in any other case. Bail bond, if any, stands cancelled. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.