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2020 DIGILAW 506 (GUJ)

Lilaben Chandrakantbhai Mochi v. State of Gujarat

2020-06-02

A.P.THAKER

body2020
JUDGMENT : A.P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and sentence of conviction passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad in Sessions Case No. 233 of 2001 on 4.3.2004, whereby the present Appellants, who are original accused Nos. 1 and 5, are convicted for the offence punishable under Section 498(A) of the Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for 3 years and to pay fine of Rs. 7,000/- each and default thereof to undergo Simple Imprisonment for 6 months with the direction that out of the amount of fine, the amount of Rs. 20,000/- to be deposited in Fixed Deposit in the name of the daughter of the deceased. 2. At the outset, it is pertinent to note that the learned trial Court has convicted 3 persons, out of them the present two accused have filed present Appeal whereas husband of the deceased has not filed any appeal as he has already undergone sentence imposed upon him. It is also pertinent to note that the learned trail Court has acquitted all the accused including the present two accused from the offence punishable under Section 306 of the Indian Penal Code. The decisions of the learned trial Court of acquittal of said accused and the acquittal of other accused under Section 306 of the IPC are not challenged by the State. Thus, factum of acquittal of present two accused and the husband of the deceased from the offence punishable under Section 306 of IPC has become final. Therefore, the present Appeal lies in a narrow compass. 3. The brief facts of the prosecution case is that as per the complainant namely Dungarbhai Nanjibhai Parmar his daughter Kantaben Pravinbhai Makwana was married to Pravin @ Raju about 10 years prior to the date 26.05.2001 and three children were begotten out of the said wedlock where two were sons and one daughter. It is alleged that Kantaben lived with her in-laws in a joint family consisting of her mother-in-law, husband, brother-in-law and sister-in-law. 3.1 Nearly a year before 26.5.2001, she lived with her husband separately. It is alleged that Kantaben lived with her in-laws in a joint family consisting of her mother-in-law, husband, brother-in-law and sister-in-law. 3.1 Nearly a year before 26.5.2001, she lived with her husband separately. According to the allegation of the complainant, initial period of 2 to 3 years of her marriage life was a smooth-sailing and the dispute started thereafter, as the mother-in-law, sister-in-law and the husband doubted her chastity even when she used to go out to purchase vegetables or to visit her parents. It is alleged that she made this complaints before her parents and in the year 1999 she consumed poison allegedly due to this cruelty and a complaint was lodged against her in-laws and matter was resolved amicably with due intervention of the relatives and the friends where her in-laws had ensured to treat her in a better fashion and both the husband and wife started living separately from them, in a separate adjacent room, which was three months prior to the said incident. 3.2 It is alleged that on 26.5.2001, relative of the complainant namely Narsinhbhai informed him that his daughter was hospitalized as she had consumed poison. According to the complainant, when he went to the hospital, he found his daughter having been admitted as an indoor patient and came to know from the in-laws that, she had consumed poison and therefore, was hospitalized. She died at around 11 O’Clock in the morning and a complaint thereafter was lodged by father of the deceased on the very same day and the same was registered as offence being I-CR No. 238/01 for the offence punishable under Section 498-A and Section 114 of the I.P.C. After registration of the FIR, subsequently within 1 to 2 hours, as the patient died, Section 302 of the I.P.C. was added. Thereafter, two further statement of the complainant had been recorded on 26.5.2001 and 4.6.2001 and the statement of the daughter of the deceased Ashwina had been recorded during the investigation by the police nearly 1½ months after the death of the deceased in presence of the complainant and as she stated the fact of her mother having been strangulated as well as poisoned by her in-laws, the complainant preferred petition before this Court for impleading the accused no. 6 whereupon this Court has directed the learned trial court to use it discretion under Section 319 of the Criminal Procedure Code. 6 whereupon this Court has directed the learned trial court to use it discretion under Section 319 of the Criminal Procedure Code. During the course of the recording of the evidence on the basis of the deposition of child witness Ashwina, the trial Court has added accused No. 6 and charge under Section 302 of the IPC was also added. 4. Initially, on the basis of the complaint, the investigation was initiated by the concerned Police Officer and recorded the Statement of the various witnesses and drawn panchnama of the scene of the offence as well as arrest of the accused and got necessary medical evidences and after having found sufficient evidences, filed charge-sheet before the concerned Court. The concerned Magisterial Court, as the case was triable by Sessions Court only, has committed the same to the City Sessions Court at Ahmedabad wherein it was registered as Sessions Case No. 233 of 2001. 5. The learned trial Court has framed charges against the accused. The accused have denied having committed any offence and pleaded for trial. Accordingly, the prosecution has led the oral and documentary evidences, as under:- PW-1 Dungarbhai Nanjibhai Parmar Exh.17 PW-2 Javantbhai Kanjibhai Solanki Exh.22 PW-3 Akbarkhan Hussainkhan Pathan Exh.24 PW-4 Ashwinaben Pravinbhai Makwana Exh.27 PW-5 Dr. Vikranbhai Kalidas Parghi Exh.32 PW-6 Ramkumar Jagatpalsing Rajput Exh.82 PW-7 Natwarsinh Daulatsinh Jetavat Exh.88 PW-8 Pratapsinh Kotaliyabhia Vasava Exh.103 5.1 The prosecution has led the following are the documentary evidences:- Vardhi received from Civil Hospital dated 26.5.2001 Exh.85 Vardhi received from Civil Hospital dated 26.5.2001 Exh.83 Report of registration of crime dated 26.5.2001 Exh.84 Inquest Panchnama Exh.26 Panchnama of scene of offence date 26.5.2001 Exh.86 Panchnama of seizure of letter dated 26.6.2001 Exh.93 Panchnama of physical condition of the accused dated 9.6.2001 Exh.89 P.M. Note dated 26.5.2001 Exh.33 Forwarding letter to FSL dated 26.5.2001 Exh.90 Mudamal Receipt dated 26.5.2001 Exh.91 Opinion of FSL dated 20.6.2001 Exh.92 Natural handwriting of the deceased Exh.105 and 106 Letter addressed to the handwriting expert by the Dy. Police Commissioner Exh.104 Opinion of handwriting expert dated 18.10.2002 Exh.107 Reasons for opinion Exh.108 Affidavits of the neighbours and the relatives as regards natural handwritings Exh.199 6. After closure of the evidence of the prosecution, further statement of the accused, under Section 313 of the Criminal Procedure Code, came to be recorded by the trial Court. Police Commissioner Exh.104 Opinion of handwriting expert dated 18.10.2002 Exh.107 Reasons for opinion Exh.108 Affidavits of the neighbours and the relatives as regards natural handwritings Exh.199 6. After closure of the evidence of the prosecution, further statement of the accused, under Section 313 of the Criminal Procedure Code, came to be recorded by the trial Court. In the said further statement, the accused have denied of the incriminating evidences and urged that since the deceased used to remain ill, she has ended her life and the note that she has written while dying may be considered by the Court. Accused Mother-in-law, sister-in-law and brother-in-law has stated that they were living separately and they know nothing about the dispute if there, between the spouses or any cause for ending the life. The accused side has desired to examined defence witnesses and accordingly following witnesses have been examined:- Defence Witnesses Names Exhibit DW-1 Valjibhai Kuberbhai Parmar Exh.113 DW-2 Jayantibhai Valjibhai Makwana Exh.116 DW-3 Jivanbhai Motibhai Parmar Exh.118 DW-4 Tribhovanbhai Limbabhai Parmar Exh.120 DW-5 Arvindbhai Mangabhai Chavda Exh.122 DW-6 Dr. Kailas Hitenbhai Amin Exh.130 DW-7 Dr. Manohar Ramchandra Exh.132 DW-8 Dr. Jaymish Pravinbhai Gajjar Exh.135 DW-9 Manubhai Hamirbhai Makwana Exh.140 7. After perusal of the evidences on record and hearing both the sides, the learned trial Court has ultimately passed the judgment of acquittal so far as other accused are concerned and convicted the present accused for offence under Section 498-A of the IPC and sentenced them as observed hereinabove. 8. Being aggrieved and dissatisfied with the impugned judgment, the original accused Nos. 1 and 5 have preferred this Appeal. 9. Heard learned advocate Mr. U.M. Kharadi with Mr. Hriday Buch, learned advocate for the appellant-accused and learned APP Ms. Jirga Jhaveri for the respondent State, peruse the material placed on record along with citations relied on by both the sides. 10. Mr. Kharadi, learned advocate for the accused, while referring to the entire evidence on record as well as the reasoning part of the judgment, has submitted that charge framed against the accused is regarding strangulation of the deceased and administering of poison, doubting the chastity of the deceased. He has vehemently submitted that the trial Court has committed serious error of facts and law in convicting present two accused as on the same evidence, the other accused have been acquitted from the charges leveled against them. He has vehemently submitted that the trial Court has committed serious error of facts and law in convicting present two accused as on the same evidence, the other accused have been acquitted from the charges leveled against them. He has also submitted that prior to the incident, the husband and wife were residing separately from the joint family and the present accused were not residing with them. He has submitted that the entire prosecution case is based on the sole evidence of the complainant i.e. father of the deceased and evidence of child witness Ashwina. While referring evidence of both these witnesses, learned advocate has submitted that the evidence are in the nature of hearsay so far as it relates to the evidence of father and there are material contradictions in his evidence. He has also submitted that the child witness is projected as eye-witness by the prosecution but on perusal of her evidence it clearly transpires that she is not trustworthy and for 40 days, she has kept silent and no fact has been narrated by the child witness to the appellant regarding she being the eye-witness and seen the strangulation made by the accused and administering poison to the deceased. He has also contended that as per the evidence of the father, after filing the complaint, the police has also recorded his statement twice. According to the learned advocate Mr. Kharadi for the appellant-accused, in those statement the complainant has not made any whisper though on the next date of the death of the deceased, the child witness Ashwina has informed him that she has seen the entire incident of strangulation of her mother by the accused and administering of the poison to the deceased. Learned advocate Mr. Kharadi has also vehemently submitted that child witness is tutored one and no reliance can be placed upon her evidence. 10.1 He has also contended that the deceased has wrote chit wherein she has specifically stated that due to her ill-health, she was fed-up of the life and, therefore, she is committing suicide and there is hand writing expert’s opinion that those chits are written by the deceased and the hand writing therein is of the deceased. 10.1 He has also contended that the deceased has wrote chit wherein she has specifically stated that due to her ill-health, she was fed-up of the life and, therefore, she is committing suicide and there is hand writing expert’s opinion that those chits are written by the deceased and the hand writing therein is of the deceased. According to the learned advocate for the appellant that this very fact has not been properly considered by the learned trial Court and the impugned judgment of the trial Court convicting the present accused is based on the assumption and presumption and conjectures. 10.2 He has also submitted that the marriage life of the parties was of 10 years. He has also contended that necessary medical papers have been placed on record and defence witnesses have specifically stated in their evidence that the deceased was being properly taken care of by her husband. He has also contended that the entire conviction is based on the sole testimony of the complainant i.e. father of the deceased. He has also contended that the learned trial Court has not properly appreciated the evidence on record in its true perspective and has committed serious error of facts and law. According to him, the impugned judgment convicting the present appellant-accused are not sustainable in the eyes of law and the same deserves to be set-aside. Alternatively, he has submitted that if the Court comes to the conclusion that the conviction of the present accused is proper then the sentence may be reduced upto the period which has been undergone by them. While relying upon the following decisions, he has prayed to allow the present Appeal: (1) State of Gujarat vs. Bharatbhai Balubhai Lad and Others, 2006 (1) GLH 718 (2) Subhashbhai Chandubhai Patel vs. State of Gujarat, 2006 (3) GLH 724 (3) State of Gujarat vs. Yogeshbhai Labhshanker Joshi, 2017 (2) GLR 1621 11. Per contra, learned APP Ms. Jirga Jhaveri for the State has vehemently submitted that the learned trial Court has properly appreciated the entire facts and circumstances of the case and has given cogent reason for convicting the present accused. She has, while referring the evidence on record, has submitted that the specific averment has been made in the complaint regarding the cruelty and the fact of the incident is duly corroborated by the eyewitness who is a child witness. She has, while referring the evidence on record, has submitted that the specific averment has been made in the complaint regarding the cruelty and the fact of the incident is duly corroborated by the eyewitness who is a child witness. According to her submission, the neighbours may not be knowing anything about what is happening in the four corners of the marriage life of the deceased with her husband. While referring the impugned judgment and evidence on record, the learned AGP Ms. Jirga Jhaveri has also vehemently submitted that the prosecution has been able to prove the charges against the accused beyond reasonable doubt. She has also contended that earlier also in the year 1999, there was incident of consumption of poison by the deceased due to cruelty meted out to her in her matrimonial home. According to her submission, this fact is also required to be taken into consideration while appreciating the evidence on record and even if there is compromise between the parties regarding the said incident, even in that case, the fact remains that there was cruelty meted out to the deceased in the past also and the conduct of the accused is also required to be taken into consideration. She has also submitted that the accused side has put up a story that the deceased has consumed poison and, therefore, on that basis the complainant has narrated this fact in his complaint. However, no poisonous substance was found from the FSL Report. According to her version, even if poison is not found then in that case also, considering the medical evidence which is in nature of the Postmortem of the body of the deceased, it clearly reveals that there is a mark on her throat which suggest that she has died due to strangulation. She has also submitted that it is the accused who can say as to how the strangulation marks over the throat of the deceased was formed. She has stated that learned trial Court has not committed any error of facts and law and, therefore, the impugned judgment may not be interfered with and the same be confirmed. She has prayed to dismiss the present Appeal. 11.1 Regarding the decisions relied upon by the accused side, learned APP Ms. She has stated that learned trial Court has not committed any error of facts and law and, therefore, the impugned judgment may not be interfered with and the same be confirmed. She has prayed to dismiss the present Appeal. 11.1 Regarding the decisions relied upon by the accused side, learned APP Ms. Jirga Jhaveri for the prosecution State has vehemently stated that the facts of these judgments are different from the facts of present case and, therefore, the decisions relied on by the accused side are not applicable to the facts of the present case. 12. It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 13. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. 14. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 15. In the case of State of Gujarat vs. Bharatbhai Balubhai Lad and Others (supra) the Division Bench of this Court has observed and held as under: “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. 13. The law so far as Section 498-A IPC is concerned needs to be examined considering the following two decisions of the Supreme Court:- (i) Gananath Patnayak vs. State of Orissa, 2002 SCC (Criminal) 461 (ii) Inderpal vs. State of M.P. 2002 Cri. L.J. 926 14. The ratio of both the decisions is to the effect that all the statements made by the deceased to her family members regarding the alleged harassment and cruelty meted towards her would fall within the purview of hearsay evidence. It is an admitted fact that none of the witnesses examined by the prosecution have said that they have with their eyes seen the accused persons assaulting the deceased or treating her with cruelty. All the witnesses have deposed on the strength of the information which the deceased used to provide when she used to come at her parental home. It is an admitted fact that none of the witnesses examined by the prosecution have said that they have with their eyes seen the accused persons assaulting the deceased or treating her with cruelty. All the witnesses have deposed on the strength of the information which the deceased used to provide when she used to come at her parental home. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of IPC and has to be termed as being only a hearsay evidence. 15. Section 32 of the Evidence Act is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused persons for the offence punishable under Section 498-A of IPC.” 16. In case of Subhashbhai Chandubhai Patel vs. State of Gujarat (supra) it appears that the above view has been reiterated. 17. In the case of State of Gujarat vs. Yogeshbhai Labhshanker Joshi (supra) the Court observed that when the early evidence relied upon by the witness on the strength of the early statement made by the deceased is in the nature of the hearsay the same cannot be relied upon. 18. Having considered the contention of both the sides and perusing the decisions cited at bar as well as material placed on record and the impugned judgment, it is crystal clear that the entire case of the prosecution is based on the evidence of complainant i.e. father of the deceased and purported child witness namely Ashwina. Further, as observed hereinabove, the present accused have been acquitted from the charges under Section 306 and 302 of the IPC. They have been convicted under Section 498-A only and, therefore, the evidence suggesting the involvement of the present accused for commission of the offence under Section 498-A only is required to be considered, especially when they are acquitted under Section 306, 302 has not been challenged by the prosecution by filing the cross Appeal. They have been convicted under Section 498-A only and, therefore, the evidence suggesting the involvement of the present accused for commission of the offence under Section 498-A only is required to be considered, especially when they are acquitted under Section 306, 302 has not been challenged by the prosecution by filing the cross Appeal. On perusal of the evidence of father namely Dungarbhai Nanjibhai Parmar, PW-1, at Exh.17, it revealed that while narrating the relationship between the parties and the marriage life of his late daughter Kantaben with accused no. 2, he has stated that initially his daughter was residing in joint family and thereafter one year prior to the incident, her daughter and sister-in-law were residing separately from the joint family. He has stated that for 2 to 3 years the marriage life was smooth and thereafter there was quarrel in the family and due to that the deceased used to come to his house and was sending her back to her matrimonial home. He has also stated that the in-laws were doubting her chastity and this fact was narrated by the daughter to him and family members and thereafter, the deceased was persuaded to go to her matrimonial home. He has also stated that due to harassment of the in-laws, his daughter has consumed poison in 1999 and for that complaint was lodged against in-laws and thereafter at the instance of the head of the community, compromise was arrived at and the in-laws had given in writing that they will behave properly with the deceased. 18.1 He has stated that the incident has happened on 26.5.2001 and his relative from Vadaj had telephonically informed him that his daughter has consumed poison and she is admitted in Civil Hospital and therefore, he went straight way to the Civil Hospital. He has stated that at the hospital he saw his daughter and tried to call her but she didn't reply and ultimately she died at 11 to 11.15 hours in the morning and at that time blood was oozing from her mouth. He has stated that, therefore, he has filed complaint against the accused. 18.2 During his cross-examination, he has admitted that the marriage life of her daughter was of 10 years and his daughter used to take money from him for her medical treatment. He has stated that, therefore, he has filed complaint against the accused. 18.2 During his cross-examination, he has admitted that the marriage life of her daughter was of 10 years and his daughter used to take money from him for her medical treatment. He has denied the suggestion that the deceased was suffering from many serious diseases and, therefore, she has committed suicide. He has denied the suggestion that in the earlier case, the accused are acquitted by the Court. He has stated that he has not informed any elder person of the community regarding the doubting of chastity of the deceased by the accused. He has also stated that her in-laws were telling for household work to the deceased and according to their community, this is cruelty. According to his version, whenever his daughter went outside even for purchasing of vegetables or for grinding corns and if she is late by 5 minutes, the in-laws were making inquiry and were quarreling with his daughter. He has stated that this is the cruelty meted out to his daughter. He has admitted that on such occasion he was not present however, he voluntarily stated that his daughter was telling these facts to him. He has stated that at the time of meeting of the community, all these facts were discussed. He has also admitted that the fact of delay of 5 minutes and making quarrel with her daughter by the in-laws has not been narrated before the Police. According to him, the Police has inquired from him regarding the poison being consumed by his daughter but nothing was written down by the Police. He has admitted that the information regarding consumption of poison by his daughter was given to him by his near relative. He has stated that when his daughter was alive, at about 9.00 am to 9.30 a.m. Police met him and his complaint was recorded. He has stated that Narsinhbhai is his near relative and is residing nearby. 18.3 When the question asked by the accused side that when did he came to know as to the fact of how his daughter has died, he has stated that after cremation, when they went to their house, the daughter of the deceased had told him that her mother has been murdered and at that time Ashwina had given name of the accused. He has stated that he cannot say as to whether his late daughter was sensitive or not however, he admitted that the deceased was his pet daughter. He has also admitted the fact that on 29.5.2001 and 4.6.2001, the Police had called him and his statement was recorded. According to him, he has given statement after due consideration. He has admitted that he has not concealed any facts from the police as well as in the Court. He has stated that the statement of Ashwina was recorded after 15 to 20 days and the same was recorded at his instance and at that time he was present. He has stated that he has not stated before the Police the fact that whenever deceased came late, the accused were quarreling with her. 18.4 Thus, on perusal of his evidence, it clearly transpires that he has not narrated the facts of quarreling by the accused with the deceased when the deceased came late. It also reveals from his evidence that child witness Ashwina, as alleged by him, informed him on the next day of the death of the deceased that the deceased was beaten by the accused at late night and was strangulated, and yet he has not narrated this very fact in his two other statements recorded on 29.5.2001 and 4.6.2001. It also appears from the evidence that statement of the child witness was recorded after 14 days and he was present at that time during recording of her statement. Further, it also reveals from the evidence that there was compromise between the parties for the earlier FIR filed and since last one year deceased was residing with her husband, separately from her in-laws. It also reveals from his evidence that as per their community, if something is told to daughter in her matrimonial home regarding her day-to-day work, then, it is assumed as cruelty. It also reveals from his evidence coupled with the perusal of the FIR that his relative Narsinhbhai had told him that the deceased had consumed poison. Thus, version of this witness, as made in the FIR, clearly shows that Narsinhbhai has told him these facts. On perusal of his entire evidence on record, it appears that he has made improvement in his evidence and narrated the extra facts which were not mentioned in the FIR and his statement. Thus, version of this witness, as made in the FIR, clearly shows that Narsinhbhai has told him these facts. On perusal of his entire evidence on record, it appears that he has made improvement in his evidence and narrated the extra facts which were not mentioned in the FIR and his statement. His evidence is not trustworthy and reliable as the factum of beating by the accused on late night to the deceased and strangulating her and putting poison in her mouth was stated to him by witness Ashwina on the very next day. However, he did not even cared to narrate this fact in his two statements alleged to have been recorded on 29.5.2001 and 4.6.2001. 19. The other material witness is child witness namely Ashwinaben Pravinbhai Makwana, PW-4, at Exh.27. She has stated that her father resides at Juna Vadaj and her matrimonial uncle's house is at Saraspur. She has stated that before one day of the incident, she was brought from her matrimonial uncle's home to his parental home. She has stated that the incident had happened on 26.5.2001 and on that day her mother had distributed mangoes in the street. She has stated that at that time Paljidada, who is her mother's uncle-in-law, has used filthy language against the deceased and it was in the evening time. She has stated that after watching movie, her elder uncle Sikhabapu, Kanabapu, Grand-mother, paternal sister-in-law, had beaten her mother and throttled her throat and fist blow was given and thereafter her grand-father had administer medicine in her mouth. She has also stated that thereafter they have brought her mother to the hospital. She has stated that police has not inquired her. 19.1 During her cross-examination, she has admitted that all the above facts have not been narrated to anybody and she is telling this fact for the first time. It also reveals from her evidence that even in chief-examination she has not stated regarding any harassment or cruelty being meted out to her deceased mother by the present accused. At this juncture, it is pertinent to note that it is not the case of the prosecution that grand-father has administered poisonous medicine or any other accused have throttled her throat. At this juncture, it is pertinent to note that it is not the case of the prosecution that grand-father has administered poisonous medicine or any other accused have throttled her throat. On reading of her entire evidence, it clearly transpires that though her statement was recorded by the Police and she completely disowned the fact of her inquiry by the Police personnel. It is also pertinent to note that when we compare the evidence of the complainant with this child witness, it clearly transpires that the fact of beating as well as administering of the poisonous medicine by grandfather, are not narrated by the complainant and there is contradictions in the version of both the witnesses. In her cross-examination, on behalf of accused no. 6, she has stated that she did not know that the police personnel came after 15 days to record the statement of the neighbours. 19.2 It is pertinent to note that the child witness has stated that on the night of the incident, she didn't slept with her father, her grandfather, her paternal aunty and their children, but slept with her mother. 20. On perusal of evidence of Dr. Vikram Kalidas Parghi, PW-5, at Exh.32, it appears that he has performed Postmortem of the dead body of the deceased and he has opined that cause of death was due to cardio respiratory failure after strangulation. Thus, the factum of unnatural death of the deceased is proved. However, as the learned trial Court has acquitted the accused from the charge under Section 302/306 of the IPC and no appeal against that acquittal has been filed, there is no need to scrutinise the evidence with regard to murder or instigation to commit suicide by the deceased. 21. On perusal of the entire evidence on record, it also transpires that the prosecution has seized certain letters and chits alleged to have been written by the deceased vide Panchnama and seizure of letter dated 6.6.2001 at Exh.93 and natural writing of the deceased at Exh.105 and Exh.106. All these documents were sent to handwriting expert, who in turn has, vide Exh.107 opined that the handwriting of the letter seized through the Panchnama are written by the deceased. All these documents were sent to handwriting expert, who in turn has, vide Exh.107 opined that the handwriting of the letter seized through the Panchnama are written by the deceased. On perusal of those letters, it clearly transpires that she has narrated her entire agony as to her suffering from many diseases and of taking medicines and the poor condition of her husband as well as her parents. Of course, in such letters, she has submitted that no case be filed against her in-laws and she will take revenge at her own. She has also addressed her husband and expressed her desire that her husband should not marry with any other lady. According to these letters, the deceased was tired of her life due to suffering from so many diseases in her body. The defence has mainly relied upon this document. Now, in view of the facts that all the letters which were sent to FSL, it proves that the letters which were seized under Panchnama at Exh.93, can be considered to be dying declaration of the deceased as in the present case, her death comes under question. Therefore, the factum narrated in these letters cannot be brushed aside. 22. It is pertinent to note that as per the evidence of the complainant, according to him as per their community, even if anything is told to a daughter in her matrimonial home regarding day-to-day work, then the same amounts to cruelty. However, in the present case, except the earlier filing of complaint, no other evidence is produced on record by the prosecution. The evidence of the father is based on the hearsay evidence, against which there are letters which can be treated as dying declaration of the deceased, expressing her agony for suffering from many diseases and it is also pertinent to note that the deceased and her husband were residing separately from deceased in-laws. Of course, they were residing adjacent as per the Panchnama of the scene of offence at Exh.86, but that fact itself is not sufficient to convict the present accused with the alleged harassment by them to the deceased. Of course, they were residing adjacent as per the Panchnama of the scene of offence at Exh.86, but that fact itself is not sufficient to convict the present accused with the alleged harassment by them to the deceased. Moreover, when child witness has not stated anything regarding past cruelty, and the fact that she has immediately on the next day informed the complainant regarding beating to her mother by the accused side and strangulating her and administering poison to the deceased and yet the complainant has not mentioned this fact in his subsequent two statements recorded at 29.5.2001 and 4.6.2001, clearly suggest that the statement of the child witness has been created after passing of almost 14 days. The earlier episode on which the prosecution is relying, cannot be taken into consideration as, as per the version of the complainant himself, compromise was arrived at and thereafter husband and wife were separated from joint family. 23. On perusal of the impugned judgment, it appears that the learned trial Court has not considered the aforesaid aspect of the matter and has mainly based on the facts of previous litigation and the factum of narration by the child witness, but on re-appreciating the evidence on record, it clearly transpires that there is no iota of evidence to connect the present accused with the offence punishable under Section 498(A), therefore, the present appeal qua these 2 accused-appellants is required to be allowed and the impugned judgment of the learned trial Court passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad in Sessions Case No. 233 of 2001 is required to be quashed and set-aside qua these two appellants. 24. In view of the above, the present Appeal is hereby allowed. The impugned judgment dated 4.3.2004 passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad in Sessions Case No. 233 of 2001, convicting the present two accused under Section 498(A) of the IPC, is hereby quashed and set-aside. Both the accused are acquitted from the charges levelled against them under Section 498-A of IPC. Fine, if any paid, be refunded to them. Bail bonds stand cancelled. R&P to be sent back to the trial Court forthwith.