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2020 DIGILAW 337 (GUJ)

State of Gujarat v. Aminbhai Gafarbhai Parmar

2020-02-24

R.M.CHHAYA, VIRESHKUMAR B.MAYANI

body2020
JUDGMENT : R.M. CHHAYA, J. 1. This appeal is directed against the judgment and order of acquittal dated 20.4.2012 passed by the learned 3rd Additional Sessions Judge, Surendranagar in Sessions Case no. 70 of 2010. 2. It is the case of the prosecution that respondents no. 1 to 3 i.e. husband and his family members used to quarrel and beat the deceased-Faridaben. It is further the case of the prosecution that under the belief that there is some bad evil in the deceased believing the same instead of taking to the hospital, took the deceased to Riskulla Peer Dargah, situated at Kodinar, managed by respondent no. 4-original accused no. 4 and under such superstition, subjected the deceased to cruelty both mental and physical and made her stand without any food in the sunlight on the stones and also entangled her with a chain. On the aforesaid factual matrix, it is the case of the prosecution that all the accused have committed an offence as provided under Sections 498A, 304 and 114 of the Indian Penal Code, 1860. An FIR was lodged by Sikandarbhai Nurubhai Chauhan who happens to be father of the deceased who is examined as PW-3 at Exh.37, with Surendranagar City Police Station. All the respondents-original accused were named in the FIR which came to be registered on 8.5.2010. The police investigated the said offence and a charge-sheet came to be filed before the competent Court for the offence punishable under Sections 498A, 304 and 114 of the I.P. Code. The case was ultimately committed to the learned Sessions Court at Surendranagar and was registered as Sessions Case No. 70 of 2010. As the accused did not plead guilty and preferred to be tried, the trial was conducted. The respondent nos. 1 to 3 also examined one witness Ruksanaben Aminbhai at Exh.49, aged about 17 years, who happens to be the daughter of the deceased as well as respondent no. 1 herein. As the accused did not plead guilty and preferred to be tried, the trial was conducted. The respondent nos. 1 to 3 also examined one witness Ruksanaben Aminbhai at Exh.49, aged about 17 years, who happens to be the daughter of the deceased as well as respondent no. 1 herein. The learned Sessions Court, after appreciating the documentary evidence, such as, oral evidence on record including deposition of the Doctor as well as documentary evidences, such as, inquest Panchnama, postmortem note, cause of death, was pleased to pass the impugned judgment and order of acquittal and has come to the conclusion that the prosecution has not been able to prove the guilt of the respondents and being aggrieved by the same, the State has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973. 3. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the appellant-State, Mr. Apurva Jani, learned advocate for Mr. Ashish M. Dagli, learned advocate for respondents no. 1 to 3 and Mr. E.E. Saiyed, learned advocate for respondent no. 4. 4. Mr. Hardik Soni, learned Additional Public Prosecutor for the appellant-State has taken this Court through the oral evidence of six prosecution witnesses as well as defence witness and has contended as under. 4.1 That, the prosecution has examined as many as six witnesses and has relied upon the documentary evidences which have not been properly appreciated by the learned Sessions Court and has misread the evidence and has wrongly come to the conclusion that the prosecution has not been able to prove the case beyond reasonable doubt. 4.2 It was contended by Mr. Soni that the prosecution has been able to prove beyond doubt that the offence, more particularly, under Sections 304 and 498A of the IPC has been proved based upon, more particularly, version of the PW-3 who happens to be the father of the deceased. 4.3 Referring to the deposition of Dr. Sadikhussain Gulammahemud Momin, PW-2 at Exh.18 who performed the postmortem of the deceased, it was contended by Mr. Soni that the injuries found on the body completely corroborates with the case of the prosecution. It was contended that the postmortem note clearly establishes the fact that the deceased had not taken any food or water since last 22 days. Such vital fact has been wrongly appreciated by the learned Sessions Court. Soni that the injuries found on the body completely corroborates with the case of the prosecution. It was contended that the postmortem note clearly establishes the fact that the deceased had not taken any food or water since last 22 days. Such vital fact has been wrongly appreciated by the learned Sessions Court. It was contended that thus, the impugned judgment and order is contrary to the evidence available on record. 4.4 Referring to the oral deposition of Akbarbhai Nurubhai, PW-1 at Exh.17, Sirajbhai Chauhan, PW-4 at Exh.39, Abdulraheman Yusufbhai Chauhan, PW-5 at Exh.40 as well as deposition of Ghanshyamsinh Jilubha Zala, Investigating Officer, PW-6 at Exh.41, it was contended by Mr. Soni that all the witnesses have supported the case of the prosecution. It was contended that Muddamal was recovered from the accused and thus, the findings arrived at by the learned Sessions Court is palpably and unerringly shaking and the learned Sessions Court has wrongly disbelieved the oral depositions of the prosecution witnesses. 4.5 Mr. Soni further contended that there is ample evidence on record to show that the deceased was made to stand in the open space below the sunlight and was not permitted to drink water. According to Mr. Soni, the same clearly proves the guilt of the respondents-original accused and the prosecution has proved beyond doubt that the deceased was meted with utmost cruelty and that the deceased was illegally confined against the wish of the accused and thus, the findings arrived at by the learned Sessions Court is based on the non-consideration of the evidence on record and on non-germane grounds. On the aforesaid contentions, it was argued by Mr. Soni that the order of acquittal deserves to be reversed by allowing the appeal. 5. Per contra, Mr. Apurva Jani, learned advocate for respondent nos. 1 to 3 has supported the impugned judgment and order of acquittal. Mr. Jani contended that even if the evidence of all the six prosecution witnesses are taken as a whole, there is no charge of illegal confinement against any of the accused. Mr. Jani further contended that as such FIR was lodged after delay of more than 11 days and the same is tailored to involve all the accused. 5.1 Mr. Jani referring to the documents and more particularly, medical evidence on record, contended that the deceased was suffering from Tuberculosis. Mr. Jani further contended that as such FIR was lodged after delay of more than 11 days and the same is tailored to involve all the accused. 5.1 Mr. Jani referring to the documents and more particularly, medical evidence on record, contended that the deceased was suffering from Tuberculosis. It was further contended that based upon the documents on record, the deceased was treated in renowned hospital at Surendranagar and operation was conducted upon the deceased relating to her Uterus. Referring to medical evidence as well as the postmortem note, Mr. Jani contended that there is nothing to show that the deceased was not fed with any food or water for 22 days. It was contended that even as per the Doctor, who performed the postmortem upon the deceased, the cause of death is due to her disease of lungs and respiratory failure because of the same. It was contended that the case of the prosecution that respondents no. 1 to 4 did not permit the complainant-PW-3-Sikandarbhai Nurubhai Chauhan to take the deceased to the hospital is a theory based on no evidence. It was further contended that there is also no evidence to show that the deceased was forced to go to Dargah managed by respondent no. 4-original accused no. 4. Mr. Jani further contended that as the disease continued even after the treatment at Surendranagar as a solace, the family of the deceased including the deceased turned towards spiritual treatment and no ingredients of either Section 304 or Section 498A of the IPC can be said to have been even remotely proved by the prosecution. It was further contended that the learned Sessions Court has correctly appreciated the evidence on record and has rightly recorded the order of acquittal, which does not require to be interfered with. It was further contended that the guilt of the respondents-original accused is not proved beyond doubt as rightly recorded and observed by the learned Sessions Court and the appeal, being meritless, deserves to be dismissed. On the aforesaid grounds, Mr. Jani submitted that the appeal, being meritless, deserves to be dismissed. 6. Mr. E.E. Saiyed, learned advocate for respondent no. 4 has adopted the arguments of Mr. Apurva Jani, learned advocate for respondent nos. 1 to 3. 7. No other or further grounds, contentions and/or submissions are made by the learned advocates appearing for the respective parties. 8. Jani submitted that the appeal, being meritless, deserves to be dismissed. 6. Mr. E.E. Saiyed, learned advocate for respondent no. 4 has adopted the arguments of Mr. Apurva Jani, learned advocate for respondent nos. 1 to 3. 7. No other or further grounds, contentions and/or submissions are made by the learned advocates appearing for the respective parties. 8. We have also perused the original record and proceedings and have gone through the oral depositions of the prosecution witnesses in particular. 9. It would be apt to refer to the deposition of Sikandarbhai Nurubhai Chauhan, PW-3 father of the deceased who is original complainant. He is examined as PW-3 at Exh.37. In his deposition, the said witness has categorically stated that the deceased had problem of Uterus before 2 to 3 months. He has also stated that the deceased had taken treatment in the T.B. Hospital. He has stated that thereafter, she went to her matrimonial house and that she was accompanied by her husband i.e. respondent no. 1-original accused no. 1. He has further stated that respondent nos. 1 to 3 took her deceased daughter to Dargah at Kodinar managed by respondent no. 4. He has also stated that thereafter, he along with his family members also went to Kodinar for 2 to 4 days. He has stated that he along with about 10 to 15 family members went to Dargah at Kodinar. He has stated that he made an attempt to give water to her daughter, but she was not even able to drink water. He has stated that he requested respondent no. 4 as well as respondent no. 1-husband of the deceased to take the deceased to the hospital and he has also stated that respondent no. 4 informed them that those who are not cured at the hospital, come to his Dargah. He has further stated that his son-in-law i.e. respondent no. 1 told him to give in writing to the effect that if anything happens, they would be answerable. He has further stated that he told respondent no. 4 to permit them to take their daughter and that respondent no. 4 informed them to keep the deceased for one day more and that she would be cured. He has also stated that they stayed at Kodinar for two days and then came back to Surendranagar. He has further stated that he told respondent no. 4 to permit them to take their daughter and that respondent no. 4 informed them to keep the deceased for one day more and that she would be cured. He has also stated that they stayed at Kodinar for two days and then came back to Surendranagar. In his further deposition, he again changed the version and told that he alone had gone to Kodinar after a week where he found some rituals being performed by respondent no. 4 and also found that respondent no. 4 was applying Dhup of Loban. He has further stated that he stayed there for two days and came back to Surendranagar. He has further stated that after coming to Surendranagar many a times, he made a phone call to respondent no. 1-his son-in-law and he was being informed that the deceased would be cured within a day or two. He has further stated that as 15 days rolled by, on 26.4.2010, his brother and his daughter went to Kodinar. He has further stated that on 27.4.2010, they found that the deceased kept standing on the heap of stones in open in broad day sunlight. He has further stated that his son Sirajbhai Chauhan who has been examined as PW-4 along with his nephew Ashraf stayed back. He has further stated that on the next day, on 28.4.2010, he inquired about his daughter-deceased and his son informed him that rituals are being carried out and he has further stated that on 28.4.2010, in the noon, he received a phone call at Surendragar that his daughter-Faridaben had expired and that her dead body was brought back to Surendranagar and the last rites were performed. He has stated that in a total marriage span of her daughter of 18 years, she had given birth to 4 children. He has admitted the fact that he has faith in the Dargah. He has also stated that if any difficulty is there, people used to keep the vow to visit Dargah. He has also admitted the fact that he has not mentioned in the FIR given by him as regards insistence of respondent no. 1 to give in writing. He has also admitted the fact that it is not mentioned in the FIR or before the police that the respondents prevented him from taking his daughter-deceased to the hospital. He has also admitted the fact that he has not mentioned in the FIR given by him as regards insistence of respondent no. 1 to give in writing. He has also admitted the fact that it is not mentioned in the FIR or before the police that the respondents prevented him from taking his daughter-deceased to the hospital. He has, however, denied other suggestions made by the defence including the fact of treatment of Tuberculosis. He has, however, admitted the fact that he stayed for 2 days at Dargah. He has also admitted that for the treatment, respondent no. 4 does not charge anything. 10. The next witness which is relied upon by the prosecution is Akbarbhai Nurubhai, PW-1 at Exh.17. The said witness happens to be the uncle of the deceased. The said witness has also stated that the operation of Uterus was conducted upon the deceased in the T.B. Hospital. He has stated that the deceased refused to accompany her husband-respondent no. 1, as according to the deceased, respondent no. 1 had developed thick relations with other lady. He has stated that his brother came to know about illness of the deceased while they were in some marriage and hence, about 15 relatives traveled to Veraval in a train and went to Kodinar from Veraval. He has also stated the same version as stated by PW-3 as regards the treatment given by respondent no. 4 Mujavar of Dargah and the fact that he came to know about the demise of Faridaben on receipt of a phone from Kodinar. In his cross-examination, he has stated that except the present complaint, no further complaint is filed as regards the cruelty against respondent nos. 1 to 3. He has also admitted in his cross-examination that expenses of the treatment given to the deceased were given by respondent no. 1-original accused no. 1. He has stated that after the treatment was over, respondent no. 1 took the deceased from the hospital to his house. He has also stated in his cross-examination that he did not prevent PW-3-Sikandarbhai Nurubhai Chauhan from taking the deceased to Dargah at Kodinar. He also admitted that he had gone to Dargah at Kodinar after about 20 days. He also admitted that he did not tell respondent no. 4-original accused no. He has also stated in his cross-examination that he did not prevent PW-3-Sikandarbhai Nurubhai Chauhan from taking the deceased to Dargah at Kodinar. He also admitted that he had gone to Dargah at Kodinar after about 20 days. He also admitted that he did not tell respondent no. 4-original accused no. 4 to permit them to take the deceased back to home as she was not in a position to travel. He has also expressed his ignorance about the incident of taking the deceased to Kodinar. He has admitted in his cross-examination that they belong to Sunni sect of Muslim and that they believe in Peer, Vali and Nabi. He has stated that the Dargah at Kodinar is of a Peer. He has, however, further denied the other suggestions made by the defence. 11. The prosecution has also relied upon the oral testimony of brother of the deceased-Sirajbhai Chauhan who is examined as PW-4 at Exh.39. The said witness, in his deposition, has stated that respondent no. 1 used to beat the deceased. He has also stated that many a times, her sister used to come to their house. He has also stated that his sister was operated at T.B. Hospital and that she died after about one year thereafter. He has also stated that the deceased died at the Dargah at Kodinar. He has further stated that the deceased was asked to sleep on the stones. He has further stated that he himself has seen that and that respondent no. 4 used to apply Loban. He has also stated that they were asked to clean Dargah along with his brother-Ashraf (cousin). He has also further stated that he informed the respondent no. 4 to take the deceased to the hospital and that he also informed the Doctor. He has further stated that his brother-in-law i.e. respondent no. 1 told him that they may take the deceased to a Doctor. However, he was not willing to do so. He has also stated that respondent no. 4 informed him that they would not take the deceased to the hospital. In his cross-examination, he has admitted the fact that no treatment was taken by the deceased-sister after any quarrel with respondent no. 1. He has admitted the fact that her sister was operated and thereafter, respondent no. 1-his brother-in-law took her to her matrimonial house. 4 informed him that they would not take the deceased to the hospital. In his cross-examination, he has admitted the fact that no treatment was taken by the deceased-sister after any quarrel with respondent no. 1. He has admitted the fact that her sister was operated and thereafter, respondent no. 1-his brother-in-law took her to her matrimonial house. He has, however, denied other suggestions made by the defence. In his cross-examination, more particularly, he has stated that about 100 people used to come everyday to Dargah. 12. The prosecution has also relied upon Abdulraheman Yusufbhai Chauhan who happens to be the relative of the complainant who is examined as PW-5 at Exh.40. He has stated in his deposition that he had gone to Kodinar with about 7 to 8 persons. He has stated that he went to Kodinar after about 15 days and found that the deceased was lying in the mud near small room at Dargah. He has also narrated the same aspect about taking the deceased to the hospital and refusal by respondent no. 4. He has also admitted the fact that he has not stated in his police statement that the respondent nos. 1 and 4 informed that no Doctor comes to Dargah. 13. The prosecution has also examined Dr. Sadikhussain Gulammahemud Momin, PW-2 at Exh.18, who performed the postmortem upon the deceased. The said witness has stated that two injuries which were noticed as mentioned in the column no. 17 of the postmortem note being abrasion on right wrist joint and left wrist joint. He has also stated that no other external injuries were noticed including the fracture and has also stated the position of the body as a whole found on octopussy being performed upon the deceased. He has also stated in his cross-examination that the ailment of lungs were due to Tuberculosis. He has also stated that if a black thread is tied for about 22 days, such injuries on abrasion would be found. He has also stated that the injuries were old and blackish and it cannot be said that because of which reason, such injuries have been caused. 14. The investigating officer-Ghanshyamsinh Jilubha Zala is examined as PW-6 at Exh.41. In his deposition, he has narrated the complaint lodged by PW-3 Sikandarbhai Nurubhai Chauhan. He has stated that the incident happened at Kodinar. 14. The investigating officer-Ghanshyamsinh Jilubha Zala is examined as PW-6 at Exh.41. In his deposition, he has narrated the complaint lodged by PW-3 Sikandarbhai Nurubhai Chauhan. He has stated that the incident happened at Kodinar. He has also admitted the fact that he took the statement of the near relatives of the complainant and that he did not record any statement of the neighbours. He has also stated that he has not cited such persons as witnesses. He has also stated that he took statement of Ruksanaben daughter of respondent no. 1 and that she has not alleged anything against respondent no. 1. He has also stated that he stayed at Kodinar for investigation for a day. He has also stated that he has not recovered any chain or rope or any Loban. He has also stated that the deceased was sick and it has come in the investigation that she was being treated by respondent no. 1-her husband. He has also stated that he took statement of the Doctor who has stated that the operation of Uterus was conducted upon the deceased. He has, however, denied the fact that the deceased died because of cardiac shock because of infection in the lungs. 15. The defence of Ruksanaben Aminbhai was also examined who is daughter of deceased and respondent no. 1 at Exh.49 as defence witness no. 1. She has stated categorically that there was no dispute between her parents. She has also stated that her grandfather and grandmother used to keep her mother deceased well and there was no quarrel. She has also stated that her mother was suffering from Tuberculosis and was admitted to the hospital and in fact was operated. She has stated that her father i.e. respondent no. 1 got her operated. She has stated that after the operation, her father brought her mother to her house and the condition of her other was good. She has stated that for 4 to 5 days, she went back to the house of her grandfather (Nana). She has also stated that after coming back, her mother used to sit silent and could not even eat anything and used to sit alone and laugh and did not talk with anybody. She has stated that her father took her to Kodinar. She has stated that they came back after two days. She has also stated that after coming back, her mother used to sit silent and could not even eat anything and used to sit alone and laugh and did not talk with anybody. She has stated that her father took her to Kodinar. She has stated that they came back after two days. However, her mother insisted that as she is feeling good, she may be taken back to Kodinar. She has stated that her grandmother therefore took her mother back to Kodinar and that she also stayed with her mother for two days at Kodinar. She has stated that Loban used to be given. The religions rituals were chanted and my mother used to drink water which was given to her. She stated that she stayed there for two days and found that her mother was comfortable. In her cross-examination also, she has stated that she has educated upto Std.8 and did not study further. She has stated that she has not stated anything before the police. She has denied the contrary suggestions made by the prosecution and has stood the test of her testimony. She has also specifically denied that her mother was forcefully taken to Dargah at Kodinar. 16. The record also shows that the deceased was treated at C.U. Shah Medical College and Hospital at Surendranagar as an indoor patient for the operation of Uterus and that she was admitted on 29.1.2010 and was discharged on 9.2.2010. The cause of death was not decided by the Doctor who performed the postmortem and after collection of viscera, the same was sent to the Department of Forensic Medicine at Pandit Dindayal Upadhyay General Hospital and Medical College at Rajkot. The certificate at Exh.20 which is brought on record shows that the deceased died due to cardiac respiratory failure on account of lung pathology and its complications. The medical evidence on record also indicates that the deceased was suffering from Tuberculosis. The said fact is admitted by the prosecution witnesses, more particularly, father, brother and the uncle. 17. The certificate at Exh.20 which is brought on record shows that the deceased died due to cardiac respiratory failure on account of lung pathology and its complications. The medical evidence on record also indicates that the deceased was suffering from Tuberculosis. The said fact is admitted by the prosecution witnesses, more particularly, father, brother and the uncle. 17. Considering the evidence as a whole and upon re-appreciating the oral as well as documentary evidence, we find that there is no evidence of any sort of harassment which would amount to cruelty as defined under Section 498A of the IPC, except bare allegations that too, in the examination-in-chief of three prosecution witnesses in particular, there is nothing on record to show that the deceased was meted out with cruelty by respondent no. 1 as husband or as near relatives by respondent nos. 2 and 3. The evidence on record, on the contrary, shows that the marriage span of the deceased and respondent no. 1 was of 18 years and had 4 children out of the said wedlock. The record, on the contrary, shows that out of the said wedlock, eldest daughter-Ruksanaben who has been examined as defence witness no. 1 was aged 17 years and the version of the defence witness clearly shows that the allegations of cruelty are not only absent, but the same are made without any basis. The prosecution has, thus, not been able to prove the guilt against respondent nos. 1 to 3 as far as the offence under Section 498A of the IPC is concerned. The medical evidence on record and the postmortem note also do not show that the deceased was died with a rope or chain. The Doctor, who performed the postmortem also in his cross-examination, has categorically stated that two injuries of abrasion found on the body of the deceased were ante-mortem and that it cannot be specifically identified as to how such ante-mortem injury is concerned and therefore, there is nothing on record to even remotely show that those two external injuries were because of any rope or chain tied. The evidence on record clearly shows that the brother and the cousin of the deceased as well as father and the uncle have visited and stayed at Dargah, except the fact that the deceased was treated with a Loban, nothing is established by the prosecution. The evidence on record clearly shows that the brother and the cousin of the deceased as well as father and the uncle have visited and stayed at Dargah, except the fact that the deceased was treated with a Loban, nothing is established by the prosecution. On the contrary, there is contradiction in the version of PW-4, PW-1 and PW-2. The evidence on record and the Panchnama do not show that there was any mud. Two witnesses have deposed that the deceased was made to stand in the open ground in the sunlight. Third witness deposed that she was made to sleep in the mud. On the contrary, the prosecution witnesses have stated in their depositions that they being Muslim belong to Sunni sect believe in Peer. The medical evidence clearly establishes the fact that the deceased was suffering from Tuberculosis and in fact, had to undergo removal of Uterus. There is no material on record to establish that the deceased was illegally confined against her wish and even considering the first version given by PW-3 the complainant who happens to be the father, no allegation which constitute the offence under Section 304 of the IPC is found and upon re-appreciation of the evidence as a whole, we find that there is no evidence to suggest that the death of the deceased was homicidal. In order to establish the guilt under Section 304 of the IPC, the prosecution has to establish that it was a culpable homicide. Upon re-appreciation of the evidence on record, we find that the prosecution failed to do so. Religious belief of the family as a whole and the situation that the deceased was not getting well made them resort to spiritual treatment as a last resort. Cause of death as per the certificate at Exh.20 shows that the deceased expired because of cardiac respiratory failure on account of lung pathology and its complications. Even the cause of death has no link or connection with the alleged injuries or the case of the prosecution that the deceased was made to stand in the open space below the sunlight and that she was not taken to the hospital. The deposition of the Investigating Officer shows that material improvements have been made by the prosecution witnesses on the said aspect. Even re-appreciating the evidence of Ruksanaben defence witness no. The deposition of the Investigating Officer shows that material improvements have been made by the prosecution witnesses on the said aspect. Even re-appreciating the evidence of Ruksanaben defence witness no. 1 who happens to be the daughter, aged 17 years, inspires confidence and we find a ring of truth in the deposition of the said defence witness. The learned Sessions Judge has correctly appreciated the evidence on record. It is also found from the evidence that when PW-1, PW-3, PW-4 and PW-5 went to Dargah at Kodinar, they did not find anything and except the fact that they insisted upon respondent nos. 1 and 4 to take the deceased to a hospital, no further aspect has been brought home by the prosecution. Even the aspect of preventing any of such witness from taking the deceased to the hospital is also not brought home by the prosecution. The Investigating Officer has also stated in clear terms as regards the improvements made by the witnesses before the Court for the first time. 18. Considering the limited jurisdiction of this Court under Section 378 of the Code of Criminal Procedure, 1973 and considering the ratio laid down by the Hon'ble Apex Court in the case of Muralidhar alias Gidda and Another vs. State of Karnataka, AIR 2014 SC 2200 , we are of the opinion that the prosecution has not been able to prove the guilt and the learned Sessions Judge has, after correct appreciation of the evidence on record, passed the order of acquittal, which does not require to be interfered with. The appeal therefore fails and is hereby dismissed. Registry is directed to send the record and proceedings back to the learned Sessions Court forthwith.