JUDGMENT : 1. The appellants-accused have filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the order and judgment dated 10.07.2003 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No.191 of 2000. 2. Heard learned Senior Advocate Mr. K.B. Anandjiwala, for the appellants and learned APP Ms. Jirga Jhaveri for respondent – State. Order under Challenge: 3. Learned Additional Sessions Judge, Vadodara has vide judgment and order dated 10.07.2003, convicted the appellants under Section 235(2) of the Code, for the offences under Sections 498(A), 306, 114 of the Indian Penal Code (for brevity “IPC”) and under Sections 3, 4 of the Dowry Prohibition Act (for brevity the “Dowry Act”) and awarded sentence for the offences as under :- Sr. No. Offence Sentence Fine 1 498(A) of the IPC 3 years rigorous imprisonment Rs.1000/- each. I/D further 2 months simple imprisonment 2 306 of IPC 7 years rigorous imprisonment Rs.3000/- each. I/D further 6 months simple imprisonment 3 3, 4 of the Dowry Act 1 year rigorous imprisonment Rs.1000/- each. I/D further 2 months simple imprisonment 4 114 of IPC No separate - (1) Accused shall undergo all punishment concurrently. (2) Accused are entitled to set of for the period of detention already undergone during the investigation and trial. Arguments of the Appellants: 4. The learned Senior Advocate Mr. K.B. Anandjiwala has submitted that Chandanben W/o. Bhagwatibhai Gordhanbhai Panchal - the appellant No.2 (Original accused No.2) has died on 21/12/2016. He has produced the copy of death certificate bearing Registration No. VMC/2017/00062 dated 03/01/2017 issued by the Competent Authority, Health Department (Birth-Death Division), Municipal Corporation, Vadodara. 5. Learned advocate for the appellants has submitted that the judgment and order of conviction is bad in law, against the weight of evidence and contrary to the well settled principles of criminal jurisprudence. That, this appeal substantially give rise to two questions of law :- (a) taking the allegations at the face value and the evidence on record can it be said that the accused persons have abetted the commission of suicide by deceased Kokila within the meaning of Section 107 of IPC punishable under Section 306 of IPC? That, this appeal substantially give rise to two questions of law :- (a) taking the allegations at the face value and the evidence on record can it be said that the accused persons have abetted the commission of suicide by deceased Kokila within the meaning of Section 107 of IPC punishable under Section 306 of IPC? And (b) whether cross examination is the only mode of discrediting a prosecution witnesses and even in the absence of adequate cross examination of the witnesses if no offence is disclosed then whether the trial court is justified in convicting the accused person? 5.1 The learned advocate further submitted that the marriage of the appellant No. 1 with the deceased Kokila solemnized on 10/07/1997 and the unfortunate incident was taken place on 14/03/1998. As such, only 08 months of marriage span. Moreover, the marriage of the appellant No. 1 with the deceased Kokila was second in point of time. Facts of first marriage of the deceased Kokila with one Sanjaykumar Arvindbhai Panchal and her divorce had not been disclose to the appellants' family. So far as the harassment is concerned, the P.W. No. 1 father of the deceased has in his deposition stated that there was some harassment at the end of appellants as far as preparing of food and that there was a demand of a gold chain and a ring. However, except oral evidence nothing has been produced on record by the prosecution. 5.2 The learned advocate further submitted that the learned Trial Court has relied only on oral evidences. That, the prosecution has not examined any independent witnesses like neighbours. It is requested to allow appeal and set aside the conviction and acquit the appellant. Arguments for the prosecution: 6. Learned APP for the Respondent-State submitted that the conviction order passed by the learned Trial Court is according to law and evidence on record. That the Sessions Judge appreciated the oral as well as documentary evidence in proper perspective. That the prosecution has examined complainant who is the father of the deceased, Kamuben Panchal who is the mother of the deceased, Bhikhabhai Parshottambhai who is the land lord of the complainant, Jyotsnaben Bhikhabhai who is the neighbour, Ramanbhai Patel who is the neighbour of the complainant have been examined who have supported the case of the prosecution. That the prosecution has examined complainant who is the father of the deceased, Kamuben Panchal who is the mother of the deceased, Bhikhabhai Parshottambhai who is the land lord of the complainant, Jyotsnaben Bhikhabhai who is the neighbour, Ramanbhai Patel who is the neighbour of the complainant have been examined who have supported the case of the prosecution. The Prosecution has also examined independent witness as well as the Medical Officer who has conducted post mortem. They have supported the case of the prosecution. That the ingredients of the evidence under Sections 306 and 498A are established. The learned Sessions Judge has rightly convicted the appellant-accused. Learned APP therefore requested to dismiss the appeal. Abatement of Appeal qua Appellant No. 2: 7. Learned APP Ms. Jirga Jhaveri, submitted a copy of the death certificate which was sent for verification through the concerned police station. The concerned Police Inspector of Makarpura Police Station, Baroda City vide letter dated 22.01.2020 addressed to the Public Prosecutor High Court of Gujarat, wherein it is stated he has verified that Chandanben Bhagwatibhai Panchal was residing at 01/124 – Majalpur Township No. 2, Darbar Chokdi, Vadodara. It is found that death certificate is issued by the Baroda Municipal Corporation as regards to the death of the Chandanben Bhagwatibhai Panchal is true and correct. Letter of correspondence and statement of Prakashbhai Bhagwatibhai Panchal, who is the son of the Chandanben is also taken on record. On perusing the death certificate following facts emerged: Sr. No. Particulars Facts 1 Name of the deceased Chandanben Panchal 2 Date of death 21.12.2016 3 Registration No. VMC/2017/00062 4 Date of Registration 03/01/17 5 Issuing Authority Health Department (Birth & Death) Municipal, Corporation, Vadodara. Considering the death certificate of the Chandanben Panchal and in view of the Section 394 of the Cr.PC, the Appeal qua the appellant No. 2 is required to be abated and necessary order of abatement will be passed hereinafter. Unnatural Death: 8. It is the case of the prosecution that the deceased Kokilaben has committed suicide due to harassment and cruelty of the appellants-accused. The prosecution has examined PW 9 Doctor, Sukapa Basu at Exh. No. 21. This medical Officer has conducted the post mortem. It is stated in her deposition that on 15.03.1998, he was working as tutor at SSG hospital, Baroda. The prosecution has examined PW 9 Doctor, Sukapa Basu at Exh. No. 21. This medical Officer has conducted the post mortem. It is stated in her deposition that on 15.03.1998, he was working as tutor at SSG hospital, Baroda. Dead body of the Kokilaben @ Kajalben Panchal was brought by the Makarpura Police Station for post mortem. She has conducted the post mortem in panel with Dr. K.P. Desai and Dr. Shukla. It is further submitted that on examination burns injury has been found on all over the body i.e. 100% burn injury. The burn injury was ante-mortem. There was no internal injury, the cause of death is shock formatting 100% burns. He has produced post mortem report at Exh. No. 22. He has identified the signature of Doctor Basu, Doctor Shukla and Doctor Desai. Learned advocate for defence has cross examined, nothing adverse revealed from the cross examination. Inquest: 8.1 On perusing the documentary evidence at Exh. No. 7. Five documentary evidence are produced by the prosecution. The inquest Panchnama is admitted by the defence and exhibited as Exh. No. 16. On perusing the inquest panchnama, on seeing dead body it is seen that dead body was laying in toilet-bathroom in burnt position, legs were bent and hands were stringent. Hairs were burnt. Face, eyes, hand, legs chest, abdomen are completely burnt. The photographs are also produced at Exh. No. 18. 8.2 In view of the above medical evidence, inquest panchnama and post mortem report, the prosecution established that the death of the deceased Kokilaben is unnatural. It is also established that Kokilaben has committed suicide. The Court has to decide as to whether the death of the deceased was due to harassment and cruelty by the appellants-accused or not, for that purpose following evidence is required to be looked into. Liability of Accused: 9. The prosecution has examined PW No. 1 Ramesh Chunilal Panchal at Exh. No. 8, he is the complainant in this case. He is the father of the deceased Kokilaben @ Kajalben. He has stated in deposition that her daughter Kokilaben got married with Prakashbhai the appellant No. 1 in the year 1997. She was residing with her husband, brother-in-law and mother-in-law at Manjalpur. It is further stated that initially conduct of the husband and mother-in-law was good but after some time they have demanded golden chain and golden ring. He has stated in deposition that her daughter Kokilaben got married with Prakashbhai the appellant No. 1 in the year 1997. She was residing with her husband, brother-in-law and mother-in-law at Manjalpur. It is further stated that initially conduct of the husband and mother-in-law was good but after some time they have demanded golden chain and golden ring. He has stated that he has six daughters so he could not give to every daughter, therefore, he refused to give golden chain and ring. Thereafter the appellants have subjected to cruelty to Kokilaben by giving mental torture. That Kokilaben was complaining about the conduct of the accused but he had persuaded and sent her daughter to matrimonial home and said that it will be alright in future. It is further stated that as and when she came at Modala Village and complaining of accused. At that time she had talked about the harassment and cruelty of the accused. That mother in laws was gibing for cooking of food and not given golden chain and ring by her father in dowry. 9.1 It is further stated that before 14.03.1998, Kokilaben and her husband came to her house at that time Kokilaben made complaint. But Kokilaben was sent back by persuasion. On 14.03.1998, one girl told on telephone that your daughter has been burnt therefore, he along with his wife and neighbour Bhikhabhai gone to the matrimonial home of the deceased Kokilaben. They show police was conducting the investigation of deceased Kokilaben. The incident took place within a period of seven months from the marriage. He has filed complaint before the Police. The complaint is produced at Exh. No. 9. The contents and signature are identified by him. They are proved. This witness has been cross examined by the advocate of the defence. He has denied the suggestions made by the advocate for the defence. Nothing is revealed, which can damage the case of the prosecution. 10. The prosecution has examined PW. No. 2 Kamuben Rameshbhai Panchal at Exh. 10, she is the mother of the deceased. She has stated that marriage of her daughter was took place with appellant no. 1 in the year 1997. She was residing at Manjalpur with her husband, mother-in-law and brother-in-law. That appellants harassing her daughter Kokilaben. They were objecting about cooking of food. They were demanding golden chain and golden ring. 10, she is the mother of the deceased. She has stated that marriage of her daughter was took place with appellant no. 1 in the year 1997. She was residing at Manjalpur with her husband, mother-in-law and brother-in-law. That appellants harassing her daughter Kokilaben. They were objecting about cooking of food. They were demanding golden chain and golden ring. They were sending deceased Kokilaben to her paternal home for bringing golden chain and golden ring. It is further stated that she has six daughters and one son and economical condition was pure therefore, they could not satisfy the demand of dowry of the appellants. It is also stated that her daughter was also treated with cruelty. All these facts were told by the Kokilaben, as and when her daughter came to her house. On the date of incident someone has called and given message that her daughter is burnt, therefore, they went to the Manjalpur where, she has seen her daughter was burnt in the toilet and bathroom. This witness is also cross examined by the learned advocate for the defence. She denied the suggestions made by the learned advocate for the appellants. 11. The prosecution has examined PW No. 3 Bhikhabhai Parshottambhai Patel, at Exh. No.11. He is the landlord of the complainant and neighbour. It is stated in his deposition that the Kokilaben @Kajalben married with Prakashbhai. That marriage took place before 7 months. That when she came at her paternal home at that time she has told him that the appellants-accused are demanding golden chain and ring and they are harassing about preparation of food. He has gone to the maternal home of the deceased Kokilaben with the complainant Rameshbhai. He saw that the Kokilaben was died. He was told that she is burnt. This witness has also cross examined by the defence advocate. Nothing found which may caused damage to the case of prosecution. 12. The prosecution has also examined PW. No. 4 Jyotsanben Patel at Exh. 12, she is the wife of the landlord and neighbour. She has also stated in her deposition that Kokilaben came at her village before 4-5 days from the incident. She talked about her misery. It is also told by the Kokilaben that her in laws are demanding dowry and also taunting about cooking of food. She has also stated that there was harassment from her husband. She has also stated in her deposition that Kokilaben came at her village before 4-5 days from the incident. She talked about her misery. It is also told by the Kokilaben that her in laws are demanding dowry and also taunting about cooking of food. She has also stated that there was harassment from her husband. She has also cross examined by the defence advocate and nothing found which can cause damage the case of the prosecution. 13. The prosecution has examined PW. No. 5 Shatish Brahmbhatt at Exh. No. 13, who is the panch-witness of panchnama of scene of offence. He has supported the case of the prosecution. He has also narrated facts and other panchas were called by the police. They have visited the scene of offence at the place shown by the appellant no. 1. The police had prepared the panchnama. The Panchnama is exhibited at Exh. No. 19. He has identified his signature as well as the signature of other panch witness i.e. Somabhai Solanki. 14. Learned advocate Mr. Anandjiwala for the appellant cited the judgment reported in 2002 SC (Criminal) 461 judgment is delivered in case of Gananath Pattnaik vs State of Orissa. He has relied upon the para-10 of the judgment and submitted that the statement recorded under Section 32 of the Evidence Act is admissible as related to the cause of the death of the deceased and circumstances of the transaction which resulted in her death. The statement is not admissible as evidence for the offence under Section 498A of the IPC and it has been termed as hear say evidence. 14.1 This judgment is not applicable to the present case as in the present case, no dying declaration produced by the prosecution. 15. Learned advocate for the appellants cited the judgment reported in 2006(1) GLR 514 in case of State Of Gujarat vs Bharatbhai Balubhai Lad, this Court has held as under: “Para 9.The principle of law which has been explained in each of the above referred judgments of the Supreme Court is that before a person can be held guilty for abetting the commission of suicide, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended the consequences of the act namely suicide and abetted the suicide within the meaning of Section 107 of IPC. Mere harassment or cruelty which drags the woman to commit suicide is not sufficient to constitute the offence under Section 306 of IPC. Para 10. Applying the principle laid down by the Supreme Court in above referred to judgments to the facts of instant case, we are of the considered opinion that mere allegations which are general in nature with regard to the deceased was subjected to mental and physical cruelty at the hands of the accused, offence under Section 306 cannot be proved.” 15.1 This Court has considered the ratio laid down by this Court in the above judgment and as far as for the evidence under Section 306 of the IPC. It is held in Para 12 as under :- “Para 12. It is settled principles of law so far as Section 498-A IPC is concerned that to constitute an offence of cruelty as explained under Section 498-A of IPC, willful conduct which is of such a nature as is likely to drive the woman to commit the suicide should be cogently established to hold the accused persons guilty of the said offence. In the instant case, there was no demand for dowry nor abetment of suicide nor cruelty to the deceased is established. Some unhappy note / incident during the short married life between the husband and the wife cannot be the circumstance to constitute an offence of cruelty or harassment within the meaning of Section 498-A IPC.” 15.2 The ratio laid down in this case is not applicable to the present case. Because facts under the said judgment is that no demand for dowry nor abatement of suicide and nor cruelty to the deceased is established. But here in this case, the prosecution has established the cruelty, demand of dowry by the giving cogent and reliable evidence of the witnesses. 16. This Court has come across a judgment of the Hon’ble Apex Court reported in 2019(16) Scale 634 and delivered in case of Gurjit Singh v. State of Punjab. The observations made by the Hon'ble Apex Court are reproduced herewith: “27. 16. This Court has come across a judgment of the Hon’ble Apex Court reported in 2019(16) Scale 634 and delivered 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. 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.” 17. Considering the evidence discussed hereinabove and ratio laid down in above referred judgment following facts established by the prosecution: (A) It is admitted fact that no dying declaration is recorded by the Executive Magistrate. The deceased Kokilaben was died at the matrimonial home. (B) The deceased was not taken to hospital for treatment. (C) It is not the case of the prosecution that the deceased had talked about anything soon before the death to anybody. There is no oral dying declaration. (D) The prosecution has established that the appellants-accused has demanded dowry from the parents of the deceased. (E) The prosecution has established that the appellants accused being husband and mother-in-law subjected the deceased to cruelty. 18. Considering the oral evidence of the near relative of the deceased. Medical evidence and other documentary evidence, I concluded that the prosecution has established that the appellant- accused has subjected his wife to cruelty committed for the offence punishable under Section 498A of the IPC. Further, the prosecution has also established that the appellants-accused demanded dowry from the parents of the deceased and committed offence under Section 4 of the Dowry Prohibition Act. Further, the prosecution has also established that the appellants-accused demanded dowry from the parents of the deceased and committed offence under Section 4 of the Dowry Prohibition Act. However, the prosecution has failed to establish that the accused has abated the commission of suicide made by the deceased. Hence, offence of abatement of suicide under Section 306 of the Indian Penal Code is not established. 19. It is submitted that learned advocate for the appellant that the incident took place on 14.03.1998 i.e. more than 22 years ago. Learned advocate for the appellants has requested that so far as the offence under Section 498A and under Section 4 of the Dowry Prohibition Act are concerned, he may be pardoned and awarded sentence already undergone. He has no objection if amount of fine is increased. 20. Learned APP for the respondent State has argued that considering the facts and circumstances of the case and fact that this Court has discretion for awarding less sentence. It is requested to pass just and proper order. She has submitted jail remarks. Details of jail remarks is as under: Sr. No. Particulars Facts 1. Prisoner’s Badge Number, Name and Age 77144, Prakashbhai Bhagwatibhai Panchal, 50 Years 2. Sessions Case 191 of 2000 3. Sentence 7 Years, Fine of Rs. 5000/- 4. Sections 498(A), 306 of IPC 5. Date of arrest 14.03.1998, Makarpura Police Station, I-CR No. 99/1998 6. Set off 06 days (14.3.1998 to 19.03.1998) 7. Actual sentence undergone 1 Month and 25 Days 8. Actual time spent in jail as on 05.09.2003 2 Months and 1 days Justification: 21. In view of the above, the appellant has been convicted for the offence punishable under Section 498A of the IPC and under Section 4 of the Dowry Prohibition Act. Considering the facts of the case, this Court has to decide that what punishment is adequate? This Court has considered the following circumstances for awarding sentence and fine. (A) The appellants were arrested and thereafter they were released on bail during trial. (B) That after the conviction passed by the learned Trial Court, they were taken into custody. Upon admission of the appeal they were released on bail and remained on bail during pendency of appeal. (C) As per the Jail Remark the appellant No. 1 remained in jail for a period of two months and one day and appellant No. 2 was died on 21.12.2016. Upon admission of the appeal they were released on bail and remained on bail during pendency of appeal. (C) As per the Jail Remark the appellant No. 1 remained in jail for a period of two months and one day and appellant No. 2 was died on 21.12.2016. (D) The incident took place on 14.03.1998 i.e. more than 22 years ago. (E) The punishment prescribed for the offence under Section 498A is imprisonment and fine. There is no minimum punishment prescribed under the law for the said offence. The punishment prescribed for the offence punishable under Section 4 of the Dowry Prohibition Act for term which shall not be less than six months but may be extended upto two years and fine which may extend to Rs. 10,000/-. 22. In view of the above discussion and considering the 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 punishable under Section 498A of the IPC and under Section 4 of the Dowry Prohibition Act by the learned additional Sessions Judge against the appellants accused be reduced to the period already undergone. Hence following order is passed: Final Order (i) For the reasons recorded hereinabove, the present conviction appeal being Criminal Appeal No. 911 of 2003 is partly allowed. (ii) The appeal against Appellant No. 2 – Chandanben W/o Bhagwatibhai Panchal is abated. (iii) The Judgment and order dated 10.07.2003 passed by the learned Trial Court in Sessions Case No. 191 of 2000 convicting the appellants accused for the offence under Section 306 of the IPC is here by quashed and set aside. (iv) The judgment and order dated 10.07.2003 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 191 of 2000 convicting the accused appellant No. 1 for the offence under Section 498A of the IPC and under Section 4 of the Dowry Prohibition Act is hereby confirmed. However, sentence for both the offences is hereby modified to the following extent:- Sr. No. Offence Sentence Fine 1 498(A) of the IPC Period already undergone Rs.2500/- I/D further 2 months simple imprisonment 2 4 of the Dowry Act Rs.2500/- I/D further 2 months simple imprisonment (v) The bail bond of the appellant-accused stands discharged. However, sentence for both the offences is hereby modified to the following extent:- Sr. No. Offence Sentence Fine 1 498(A) of the IPC Period already undergone Rs.2500/- I/D further 2 months simple imprisonment 2 4 of the Dowry Act Rs.2500/- I/D further 2 months simple imprisonment (v) The bail bond of the appellant-accused stands discharged. (vi) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (vii) Record and proceedings be sent back to the Court concerned forthwith.