Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 125 (GUJ)

Dhirubhai Bhanabhai Mer v. State Of Gujarat

2020-01-22

V.P.PATEL

body2020
JUDGMENT : 1. The Appellant Accused has filed this Appeal under Section 374 (2) of the Code of Criminal Procedure (“the Code” for short) being aggrieved and dissatisfied with the conviction order dated 28.2.2005 passed by the learned Sessions Judge, Amreli (hereinafter referred to as “the learned Sessions Judge”) in Sessions Case No. 53 of 2004. 2. Heard learned Advocate Mr. Pratik B. Barot for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent – State of Gujarat. Order under challenge: 3. The learned Sessions Judge has passed the order dated 28.2.2005 convicting the Appellant Accused under Section 235(1) of the Code for the offence punishable under Section 304(B) and 498(A) of the Indian Penal Code and sentenced to suffer RI for 7 years for the offence punishable under Section 304(B). No separate sentence is awarded for the offence punishable under Section 498(A) IPC. The learned Sessions Judge has acquitted the Appellant Accused for the offence punishable under Section 306 IPC. It is further ordered that the Appellant Accused is entitled for set of for the period already undergone during trial. Arguments for the Appellant: 4. Learned Advocate for the Appellant has argued that the order passed by the learned Sessions Judge is contrary on the facts and law. That the oral as well as documentary evidences are not appreciated in its proper perspective. That the conviction held by the learned Sessions Judge is unjust and improper in the facts and circumstances of the case. That there are no ingredients as regards to the offence punishable under the Dowry is established. That no proximity of the incident leading to the death of the deceased is established. That the dying declaration of the deceased was not taken. That the learned Sessions Judge has relied only upon the interested witnesses and no independent witnesses have been examined. That the conviction is bad, illegal and against the criminal jurisprudence and is therefore liable to be quashed and set aside. He therefore requested to allow the Appeal and acquit the Appellant Accused. Arguments of the Defence: 5. Learned APP has argued that that the conviction order passed by the learned Sessions Judge is according to law and evidence on record. That the learned Sessions Jude has appreciated the oral as well as documentary evidence in its proper perspective. He therefore requested to allow the Appeal and acquit the Appellant Accused. Arguments of the Defence: 5. Learned APP has argued that that the conviction order passed by the learned Sessions Judge is according to law and evidence on record. That the learned Sessions Jude has appreciated the oral as well as documentary evidence in its proper perspective. That the prosecution has established the ingredients of the offence under Section 304(B) and 498(A) IPC. That the prosecution has examined the mother, father and brother of the deceased to support the prosecution case and the prosecution has also examined the independent witnesses i.e. the neighbour as well as the medical officer who have supported the prosecution case. It is argued that the ingredients of the offence are established and the learned sessions Judge has rightly convicted the Appellant Accused. The learned APP therefore requested to dismiss the Appeal. Facts of the case: 6. The marriage of the Appellant Accused was solemnized in a group marriage of Koli community and only after one month of their marriage a torture has been made by the Appellant Accused and a demand of kariyavar was made. On account of the same on 14.3.2004 deceased Bhavnaben has committed suicide and accordingly the complaint has been made by the prosecution for the offence punishable under Sections 304(B), 498(A) and Section 306 IPC. In view of the filing of the complaint, the investigation was carried out, charge sheet was filed for the offence as aforesasid and thereafter the case was committed to the sessions. Unnatural Death: 7. It is the case of prosecution that deceased Bhavnaben has died by poisoning which is unnatural death. It is the case of the prosecution that she has committed suicide. 7.1 The prosecution has examined PW-2 - Medical Officer - Dr. Babulalbhai Walabhai at Exh.12 who has performed post mortem of deceased. He narrated the external injury as well as the internal injury on the body of the deceased Bhavnaben in his deposition. It is stated in paragraph 5 that she has examined the uterus and womb of the deceased and found that there is one and half to two month’s pregnancy with product inside it. This witness has admitted that the person who is suffering from shock, danger or inferiority complex, poor economic condition and faltering in mind can have the tendency of suicide. This witness has admitted that the person who is suffering from shock, danger or inferiority complex, poor economic condition and faltering in mind can have the tendency of suicide. He has narrated external injury on the body of the deceased as per column 17 which reads as under: “7 cm x 1 ½ cm anteriority transverse pressure mark with abrasion in middle part with ploclcis colour, stain (straight), not extrending posteririorty.” 7.2 It is also opined that the injury was antemortem. The cause of death is cardio respiratory failure due to poisoning. Post mortem report is exhibited at Exh.13. It is established that the deceased Bhavnaben has been died with unnatural death. She has committed suicide. Liability of Appellant Accused: 8. Considering the oral as well as documentary evidence produced for the purpose of postmortem and medical examination, the prosecution has established that the death of the deceased is a unnatural death and is a suicidal by taking poison but the court has to come to the conclusion whether the Appellant is liable for such act or not. 9. The prosecution has examined the Complainant - PW-3 Nanjibhai Ramjibhai at Exh.17, who is the father of the deceased. He has stated on oath that the marriage of her daughter was solemnized in the community (group) marriage ceremony. That two days before, he has gone to the matrimonial home of the deceased on dhuleti. At that time he met his daughter who has complained of abuses from the Appellant Accused and that the Appellant Accused has demanded kariyavar as his father has given less kariyavar. It is further stated that his son Raju also met with the deceased. At that time the deceased has also complained to his brother Raju about less kariyavar given to her. It is further stated that the brother-in-law of the deceased had called him and informed that the his daughter Bhavnaben has committed suicide by strangulation. Thereafter they went to the village Kadiadi i.e. the matrimonial home of the deceased where he came to know that his daughter had died and he saw the dead body of his daughter. The postmortem was conducted and thereafter he performed funeral ceremony of his daughter. The complaint was filed thereafter in the police station. 9.1 In his cross examination, he has admitted that their economic condition is very poor. The postmortem was conducted and thereafter he performed funeral ceremony of his daughter. The complaint was filed thereafter in the police station. 9.1 In his cross examination, he has admitted that their economic condition is very poor. The marriage of the deceased was performed in the community wedding ceremony. It is further admitted that he has not given any kariyavar and whatever items are given, are provided by the community persons. It is also admitted that at the time of marriage there was no issue as regards to the kariyavarj or dowry. This witness has denied the case of the prosecution that the deceased has some affair with the person named Shaktiman. It is also denied that at the time of marriage her daughter was carrying two month’s of pregnancy and therefore she had committed suicide. As per the deposition of this witness it appears that only fact as regards to the cruelty is stated. He has not stated any incident which led to death of the deceased. 10. The prosecution has examined PW-1 Shantuben Nanjibhai, the mother of the deceased at Exh.9. She has stated in her deposition that her husband had gone to the matrimonial home of the deceased i.e. her daughter where she had a talk to the husband of the deceased as regards to the kariyavar and the cruelty meted out to the deceased by the Appellant Accused. She has stated that at about 10 O’ Clock in the night the Appellant Accused had made a telephone call and informed that less kariyavar is given. She has also stated that she does not know about how Appellant Accused treats her daughter. She has never gone to the home of the deceased to see the deceased to know the conduct of the Appellant. It is further stated in paragraph 5 that she came to know by telephone on her son that her daughter Bhavnaben had committed suicide by strangulation. There was a spot on the neck of the deceased. 10.1 In her cross-examination this witness has admitted that the marriage of her daughter was solemnized with her consent and the deceased was very happy. The deceased has been sent to her matrimonial home in gleeful condition. It is further admitted in paragraph 9 of her cross examination that the in-laws of the deceased Bhavnaben are very caring. 10.1 In her cross-examination this witness has admitted that the marriage of her daughter was solemnized with her consent and the deceased was very happy. The deceased has been sent to her matrimonial home in gleeful condition. It is further admitted in paragraph 9 of her cross examination that the in-laws of the deceased Bhavnaben are very caring. At the time of marriage no demand was made by the Appellant Accused. She has also admitted in paragraph 11 that her daughter had no complain about her husband (the Appellant Accused) till she returned first time from matrimonial home. It is also admitted in paragraph 12 that when they reached matrimonial home of the deceased, at that time the Appellant Accused was not present. He was out of station for selling salt. That the Appellant returned back after she reached home of the deceased. She has denied her daughte’s illicit relation with the person named Shaktiman. She has also denied that her daughter was pregnant at the time of marriage and therefore she committed suicide. 11. Considering the deposition of PW-3 Shantuben, the mother of the deceased, it is seen that she has no personal knowledge about the cruelty meted out to the deceased by the Appellant Accused. 12. The prosecution has examined PW-4 Rajubhai Nanji Makwana at Exh.18 who the brother of the deceased Bhavnaben. He has stated that her sister’s marriage was arranged by the community persons. He has gone to Kadiadi village on the occasion of Tunsure ceremony at her Aunt’s (Fui) place. He met her sister and asked about her well being. At that time her sister Bhavnaben told him that the Appellant Accused is harassing her by saying that less Kariyavar is given at the time of marriage and he is demanding more Kariyavar. He has stated that after coming from the Kadiadi village he had a talk with his father about the said conversation took place between him and his sister. His father told him that they will provide them sufficient kariyavar. 12.1 He has further stated as regards to the incident that Manubhai has told him on telephone that Bhavnaben has committed suicide. Thereafter he informed his mother and father as well as the other relatives. They accordingly went to the matrimonial home of the deceased where they came to know that her sister was died. He saw the dead body of his sister. Thereafter he informed his mother and father as well as the other relatives. They accordingly went to the matrimonial home of the deceased where they came to know that her sister was died. He saw the dead body of his sister. It was lying on the floor. He came to know about the incident that Bhavnaben has committed suicide by strangulation. This witness in his cross examination has stated that the police has not made any inquiry from him. He has denied that her sister was pregnant at the time of marriage. It is also denied that his sister has illicit relation with the person named Shaktiman and therefore she has committed suicide. 13. The prosecution has examined PW-5 Kamuben Keshubhai at Exh.20 who is the mediator for arranging the marriage of the deceased and the Appellant Accused. Nothing incriminating has been stated by this witness. She is also a panch witness of the inquest panchnama. 14. Learned Advocate for the Appellant has cited the following judgments: (A) AIR 2016 SC 5313 – Baijnath and ors. v. State of Madhya Pradesh. The Hon'ble Apex Court in paragraph 33 and 38 has observed as under: “(33) A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. (38) ...The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under Sections 304B and 498A of the Code against them.” (B) (2018) 10 SCC 593 – Jagjit Singh v. State of Punjab. The Hon'ble Apex Court in paragraph 13 and 34 has observed as under: “13. The Hon'ble Apex Court in paragraph 13 and 34 has observed as under: “13. We have already noticed that the essential ingredients of Section 304-B IPC as noticed by this Court in Major Singh & Another vs. State of Punjab (supra). Parliament has inserted Section 113-B in the Evidence Act. In order that the presumption therein has to be applied it must be established that soon before her death, such woman must have been subjected by such person to cruelty or harassment for, or in connection with any demand of dowry. Upon this fact being established, undoubtedly, the court is mandated to assume that the person has indeed caused the dowry death as contemplated in Section 304-B IPC. Therefore, the presumption cannot apply unless it is established that soon before her death, a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry. The words "soon before" her death has also been considered in a large number of cases. 34. We may also notice the statement of law contained in the decision of this Court in the case of Ashok Kumar v. State of Haryana reported in 2010 (12)SCC 350 which reads as under: "24. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to raising of presumption under Section 304-B of the Code, this Court, in Kaliyaperumal v. State of T.N.; (2004) 9 SCC 157 : 2004 SCC (Cri) 1417, stated the following ingredients which should be satisfied: (SCC p. 162, para 4) "(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death." (C) 2007 (1) G.L.H. 545 – Monojbhai Laljibhai Kabaria and anr. v. State of Gujarat. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death." (C) 2007 (1) G.L.H. 545 – Monojbhai Laljibhai Kabaria and anr. v. State of Gujarat. It is observed in paragraph 13.6 as under: “13.6 On overall re-appreciation, reevaluation, reanalysis and close scrutiny of the evidence of this witness, there is no manner of doubt that initially there was no demand of dowry made by the accused persons. Only general allegations were made with regard to bringing less kariyavar. Kariyavar is not dowry within the meaning of Section 2 of the Act. For the first time, demand of dowry was made by the accused, more particularly, A-1, when deceased Manisha conceived and it has come to the knowledge of A-1 that she was pregnant. At that time he tried to persuade her that he has got two children to be maintained and, therefore, it was not possible for him to maintain the third child and A-1 tried to persuade her to go for termination of pregnancy, otherwise she should bring Rs. 1 lakh if she wanted to retain the pregnancy.” 15. This court has come across a judgment delivered by the Hon'ble Apex Court on 26th November 2019 in Criminal Appeal Nos. 1492- 1493 of 2010 in case of Gurjit Singh v. State of Punjab. The observations made by the Hon'ble Apex Court are reproduced herewith: 27. It could thus be seen, that the view taken by the three-Judge Bench of this Court in the case of Ramesh Kumar (supra) that when a case does not fall under clause secondly or thirdly, it has to be decided with reference to the first clause, i.e., whether the accused has abetted the commission of suicide by intentionally instigating her to do so; has been consistently followed. As such, we are of the view that merely because an accused is found guilty of an offence punishable under Section 498A of the IPC and the death has occurred within a period of seven years of the marriage, the accused cannot be automatically held guilty for the offence punishable under Section 306 of the IPC by employing the presumption under Section 113A of the Evidence Act. Unless the prosecution establishes that some act or illegal omission by the accused has driven the deceased to commit the suicide, the conviction under Section 306 would not be tenable. 29. Insofar as the judgment of this Court in Modinsab Kasimsab Kanchagar vs. State of Karnataka & Anr. is concerned, no doubt that the learned counsel for the State is justified in relying on the said judgment as the conviction in the said case is for the offence punishable under Section 498A of the IPC and Sections 3, 4 & 6 of the Dowry Prohibition Act, 1961. However, in the said case, the conviction under Section 304B of the IPC was set aside by this Court. However, the question, as to whether when the charge is framed only under Section 304B of the IPC could the conviction be recorded under Section 306 of the IPC did not fall for consideration in the said case. 33. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498A of the IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption. 37. In the foregoing circumstances, the appeals are partly allowed. Conviction under Section 498A of the IPC is maintained and the conviction under Section 306 of the IPC is set aside. The appellant is acquitted of the charge under Section 306 of the IPC.” 16. On scrutiny of above evidence, following facts emerged: (a) The Appellant Accused was not present when the deceased Bhavnaben has committed suicide by strangulation. He was out of station. The appellant is acquitted of the charge under Section 306 of the IPC.” 16. On scrutiny of above evidence, following facts emerged: (a) The Appellant Accused was not present when the deceased Bhavnaben has committed suicide by strangulation. He was out of station. The Appellant returned at home after the relatives of the deceased reached the Appellant’s home. This shows that the there is no direct evidence of cruelty or harassment was soon before her death. (b) Considering medical evidence more particularly two month pregnancy in the womb of deceased. The defence of the accused i.e. the deceased was pregnant at the time of marriage which leads to suicide by deceased, is more probable. (c) There is cogent and coherent evidence of cruelty and harassment by husband earlier point of time, which satisfy the ingredients of offence punishable under Section 498A of IPC. 17. Considering the oral evidence of the near relatives of the deceased, medical evidence and other documentary evidence, I conclude that the prosecution has established that the Appellant Accused has subjected his wife to cruelty and committed an offence punishable under Section 498A of IPC. Further the prosecution has failed to establish that the accused has not committed an offence of dowry death i.e. his wife Bhavnaben has committed suicide. Soon before her death she was subjected to cruelty or harassment by him in connection with any demand of dowry an offence punishable under Section 304B of IPC. 18. It is also submitted that the incident was occurred on 14.3.2004. More than 15 years have been passed. At this stage, leaned Advocate for the Appellant submitted that so far as the sentence for the offence under Section 498A is concerned, he may be pardoned and awarded sentence already undergone. 19. Learned APP for the Respondent State argued that considering the facts and circumstances o the case and the fact that this court has discretion for awarding less sentence. In view of this, it is requested that just and appropriate order be passed. She has submitted the jail remarks. 20. As per the jail remarks submitted by the learned APP, following acts emerged: Sr. Particulars Facts 1. Prisoner’s Badge Number, Name and Age 509, Dhirubhai Bhanabhai Mer, 25 Years 2. Sessions Case 53/2004 3. Sentence 7 Years, Fine 4. Sections 498(A), 304(B) IPC 5. Date of arrest 15.3.2004, Rajula Police Station, I-CR No.38/2004 6. 20. As per the jail remarks submitted by the learned APP, following acts emerged: Sr. Particulars Facts 1. Prisoner’s Badge Number, Name and Age 509, Dhirubhai Bhanabhai Mer, 25 Years 2. Sessions Case 53/2004 3. Sentence 7 Years, Fine 4. Sections 498(A), 304(B) IPC 5. Date of arrest 15.3.2004, Rajula Police Station, I-CR No.38/2004 6. Set off 10 months and 44 days (15.3.2004 to 27.2.2005) 7. Actual sentence undergone 2 Years, 6 Months and 13 Days 8. Actual time spent in jail as on 11.9.2007 3 Years 5 Months and 17 days (with set off) Justification: 21. The Appellant has been convicted by the learned Sessions Judge, Amreli for the offences punishable under Sections 304(B) and 498(A) IPC. Now considering the facts of the case, this court has to decide what punishment is adequate. This court has considered following circumstances for awarding sentence and fine: (a) That the Appellant was arrested and thereafter released on bail during trial. (b) As per the jail remarks, he remained in jail for a period of 2 Years, 6 Months and 13 Days. (c) The incident took place on 14.3.2004 i.e. more than 15 years ago. (d) The punishment prescribed for the offence convicted is imprisonment and fine. There is no minimum sentence prescribed under the law for the offence under Section 498A of IPC. 22. In view of the above discussion, facts and circumstances of the case, I am of the view that the ends of justice would be met with in case of sentence of imprisonment awarded for the offence under Sections 498(A) IPC by the learned Sessions Judge against the Appellant Accused be reduced to the period already undergone. Hence following order is passed: FINAL ORDER (i) For the reasons recorded herein above the present Appeal is partly allowed. (ii) The judgment and order convicting the Appellant Accused for the offence under Section 304(B) IPC by the learned Sessions Judge Amreli dated 28.2.2005 in Sessions Case No. 53 of 2004 is hereby quashed and set aside. (iii) The judgment and order convicting the Appellant Accused for the offence under Section 498(A) IPC by the learned Sessions Judge Amreli dated 28.2.2005 in Sessions Case No. 53 of 2004 is hereby confirmed. (iii) The judgment and order convicting the Appellant Accused for the offence under Section 498(A) IPC by the learned Sessions Judge Amreli dated 28.2.2005 in Sessions Case No. 53 of 2004 is hereby confirmed. However, as no order for any separate sentence is passed by the learned Sessions Judge, the Appellant is hereby ordered to sentence for period already undergone and fine of Rs.100 for the offence under Section 498(A) IPC. (iv) The bail bond stands discharged. (v) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (vi) R&P be sent back to the trial court forthwith.