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2023 DIGILAW 1157 (GUJ)

State Of Gujarat v. Dilipbhai Dhulabhai Parmar

2023-12-06

A.Y.KOGJE

body2023
JUDGMENT : A.Y. Kogje, J. 1. Present group of Appeals is preferred by the State under Section-377 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction under Section-498A of the Indian Penal Code for the purpose of enhancement and under Section 378(1)(3) of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal of the respondents-accused for the offence under Section-306 of the Indian Penal Code and the Revision Application filed at the relevant time by the complainant challenging the acquittal of the respondents-accused for offence under Section-306 of the Indian Penal Code. Both the Appeals and Revision Application were ordered to be heard together under order dated 09-11-2022 by the Coordinate Bench and accordingly, all these matters are taken up for final disposal. 2. The State is in Appeal against the judgment and order dated 25-09-2009 passed by the Additional Sessions Judge and 3rd Fast Track Court, Panchmahal at Godhra in Sessions Case No.33 of 2009. Before the trial Court, five accused persons were tried for offence under Section-498A and Section-306 of IPC; accused No.1 being husband of the deceased-Minaben, the respondents-accused Nos.2 and 3 being mother-in-law and father-in-law respectively, while the respondents-accused Nos.4 and 5 being Sister-in-law of the deceased. 3. From the impugned judgment and order, all the accused have been acquitted of offence under Section-306 of IPC, whereas accused persons have been convicted for offence under Section-498A of IPC and undefined respondent-accused No.1 is ordered to undergo for sentence of 9 months of simple imprisonment, whereas the rest of the respondents-accused are ordered to undergo for simple imprisonment of 3 months. 4. Learned Additional Public Prosecutor and learned Advocate Mr. N.R. Kodekar, who is appearing for the complainant, have jointly submitted that an error is committed in acquitting the accused persons of the offence under Section-306, as the Court has failed to take into consideration marriage period between the deceased and the respondent No.1, which was only for a period of two and half years and the age of the deceased was only 22 years. 4.1 It is submitted that from the evidence of witnesses, who are brother of the deceased, father of the deceased and sisters of the deceased, the prosecution was able to establish harassment of the deceased in her matrimonial life by all the respondents-accused together and particularly because even after period of two and half years, as she did not have any children, there was mental and physical torture meted out. It is submitted that the Court ought to have taken into consideration this evidence of the witnesses to conclude that there was both physical and mental harassment to the deceased, which has lead her to commit suicide by jumping into the well. It is submitted that panchnama of the scene of the offence would clearly indicates that body of the deceased was recovered from the well and that with great difficulty, the body could be removed from the well and just prior to deceased jumping into well, she had made an attempt to contact her brother on telephone to indicate the harassment meted out to her. It is submitted that witness who was in telephone booth, has deposed that after telephone call made undefined by the deceased, she was found wiping and had left telephone booth and immediately thereafter, incident took place, where the deceased jumped into the well. Therefore, there was proximate reasons of harassment, which lead to the deceased to commit suicide attributing cruelty to all the respondents. 4.2 It is submitted that evidence, which was exhibited in the form of ‘Janvajog’ as well as FIR, are in corroborating the oral evidence of the witnesses and therefore, also, case of the prosecution was required to be believed by the trial Court in so far as conviction for offence under Section-306 is concerned. 4.3 It is also submitted that when the conviction is recorded for the offence under Section-498A of the IPC, thereby establishing cruelty within explanation contained in Section-498A of IPC and therefore, the trial Court could not have disregarded this conviction and acquitted the accused of Section-306 of IPC, as according to learned APP and learned Advocate for the complainant, cruelty meted out and believed by the Court had direct nexus to the committing of suicide by the deceased. 5. 5. As against this, learned Advocate appearing for the respondents-accused has submitted that the Sessions Court has rightly not believed the case of the prosecution in so far as Section-306 is concerned, as according to evidence of the prosecution witness itself, it is coming out as case of accidental fall of the deceased in the well and that injuries sustained by the deceased during her accidental fall in the well, is real cause of death and not drowning in the well being cause of death. Learned Advocate has submitted that cruelty, which is believed by the undefined Court is only on the basis of hearsay evidence, otherwise, there is no direct evidence with regard to the cruelty meted out. It is submitted that evidence of the witnesses, who are relatives of the deceased, is partisan version and even if it is believed to be true, then also, so called harassment meted out, was not in proximate past, but almost six months prior thereto. It is submitted that from the evidence of witnesses itself, it is coming out that harassment was nothing else, but difference of opinion between husband and wife, which is attributable to normal wear and tear of the matrimonial relation, but it cannot be said that it will meet with requirement of definition of ‘Cruelty’ as required under Section-498A. It is submitted that as the respondents-accused have on account of their poor financial condition, not challenged the order of conviction, though it was according to him, a fit case to challenge conviction as there was no evidence independently establishing harassment of the deceased. 5.1 Learned Advocate has lastly submitted that reasons are assigned in Para-23 and 24 of the impugned judgment and order, giving cogent reasons for inflicting lessor sentence, instead of full sentence prescribed for offence under Section-498A. 6. Having considered the submissions made and having perused the documents on record, the facts in short of the prosecution is that the deceased-Minaben had married with the respondent No.1-Dilipbhai two and half years prior to the date of incident i.e. on 21-10-2008 and on the date of incident, reportedly Minaben committed suicide by jumping in the well. In this connection, two ‘Janvajog’ entries have been made and thereafter, FIR being C.R. No.I-119 of 2008 came to be filed with Rajgadh Police Station. In this connection, two ‘Janvajog’ entries have been made and thereafter, FIR being C.R. No.I-119 of 2008 came to be filed with Rajgadh Police Station. Upon due investigation, the charge-sheet came to undefined be filed for offences under Section-306 and Section-498A of IPC against all the respondents-accused and during the course of trial, the prosecution lead following evidence. -:: ORAL EVIDENCES ::- 1. Oral evidence of Prosecution Witness Hinaben Narendrabhai Panchal vide Exh.34. 2. Oral evidence of Prosecution Witness Chandubhai Nagjibhai Pargi vide Exh.38. 3. Oral evidence of Prosecution Witness Pravinbhai Jashwantbhai vide Exh.40. 4. Oral evidence of Prosecution Witness Gordhanbhai Takhatsinh vide Exh.44. 5. Oral evidence of Prosecution Witness Takhatsinh Mohansinh vide Exh.54. 6. Oral evidence of Prosecution Witness Ranjitsinh Jamsinh vide Exh.56. 7. Oral evidence of Prosecution Witness Dr. Paras Mangilal Patel vide Exh.59. 8. Oral evidence of Prosecution Witness Savitaben Ganpatsinh vide Exh.63. 9. Oral evidence of Prosecution Witness Ranjitsinh Raisinh vide Exh.65. 10. Oral evidence of Prosecution Witness Madhavsinh Samantsinh vide Exh.66. 11. Oral evidence of Prosecution Witness Ravindra Shanabhai Patel vide Exh. 69. 12. Oral evidence of Prosecution Witness Kirtikumar Gokaldas Patel vide Exh.71. -:: DOCUMENTARY EVIDENCES ::- Sr. No. Particulars Exh. No. 1. Index of the offense 70 2. Complaint 46 3. Information Entry 45 4. Information provided by Pravinbhai 41 5. Panchnama of the scene of offence 12 6. Inquest Panchnama 13 7. Report regarding inquest 72 8. Preliminary Report of FSL 39 9. Yadi written by PSI of Rajgadh to Executive Magistrate, Ghoghamba 73 10. Yadi written by PSI of Rajgadh to Referral Hospital, Ghoghamba 74 11. Receipt of handing over the dead-body 55 12. Receipt of taking over the custody of the dead-body 75 13. Death certificate regarding the dead-body found 61 14. Postmortem note 60 15. Death certificate 62 16. Receipt regarding handing over the ornaments found from the dead-body to Takhatsinh 76 17. Yadi written by PSI of Rajgadh to Deputy Director 79 18. Yadi written to Science Laboratory, Vadodara to analyze the muddamal and issue certificate 77 and 78 19. Letter written by the Deputy Director to PSI of Rajgadh 80 20. Letter dated 20.07.09 written by Deputy Director, Vadodara to PSI of Rajgadh 81 21. FSL Report of Forensic Science Laboratory, Vadodara 82 6.1. Yadi written to Science Laboratory, Vadodara to analyze the muddamal and issue certificate 77 and 78 19. Letter written by the Deputy Director to PSI of Rajgadh 80 20. Letter dated 20.07.09 written by Deputy Director, Vadodara to PSI of Rajgadh 81 21. FSL Report of Forensic Science Laboratory, Vadodara 82 6.1. Vide Exh-4, the respondents came to be charged on the ground that the deceased being wife of the accused No.1 and the respondent accused Nos.2 to 5 being close relatives of the respondent-husband and as the deceased did not have any children out of the marriage of two and half years, all the accused together were causing mental harassment for being childless as a result of which, on 21-10-2008 at 4.45 pm, the deceased committed suicide by jumping into the well located in the Village-Paroliya near Highway. 6.2 PW-4; Govardhanbhai Takhatsingh Rathod vide Exh-44 is an informant and brother of the deceased, in his evidence in chief, he has narrated about the factum of marriage between the deceased and the respondent-accused No.1, where the marriage period was proper and good initially for 7 to 8 months, however, thereafter, differences arose. He has deposed about the telephonic conversation with the deceased prior to 5 months of the incident, where the deceased, while wiping had conveyed to the witness about ill treatment being meted out. It is deposed that she is mentally harass by making her work from early morning like cattle and is not permitted to take cooking activities. She has also conveyed that the respondents were taunting her for being childless. In this fashion, the deceased had conveyed to the witness about ill treatment meted out to her by her In-laws. 6.3 On the date of incident, this witness has deposed that he received seven missed calls from particular number and therefore, when he called back, it was from Telephone Booth and the Operator at Telephone booth had informed that lady calling him, had already left. It is around at 4.40 pm, the respondent-accused No.1 had called this witness to inform about the incident of drowning of the deceased in the well. This witness, when he reached the spot, he has deposed about rescue activities being undertaken and efforts to take out the dead body, took long time and only on the next day morning that dead body could be retrieved. This witness, when he reached the spot, he has deposed about rescue activities being undertaken and efforts to take out the dead body, took long time and only on the next day morning that dead body could be retrieved. 6.4 It is pertinent to observe that in cross examination, this witness has indicated that this witness had convinced the deceased to go back to her matrimonial home on account of resolution of the dispute between them and has also deposed that relation between both the families were cordial as both the families used to visit each other place occasionally. This witness has exhibited the document at Exh-45, which is ‘Janvajog’ entry pertaining to the falling of the deceased inside the well, which was recorded on 21-10-2008 at 20.45 hours, whereas Exh-46 is FIR registered by this witness on 22-10-2008 alleging harassment to the deceased leading to her committing of suicide. 6.5 PW-5; Takhatsinh Mohansinh Rathod vide Exh-54 is father of the deceased and has deposed, much identical to the PW-4. This witness has also in the cross examination indicated that the respondent-accused No.1 and his daughter frequently used to visit maternal house of the deceased and any difference in their matrimonial relation was resolved by way of settlement. At once stage, this witnesses has also deposed that when this witness refused to send the deceased along with the respondent-accused No.1- husband, at that time, husband had insisted to send the deceased to her along with him or else, he would himself die. 6.6 The Court has thereafter taken into consideration evidence of PW-6; Ranjitsinh Jamsinh Parmar who is brother-in-law of the deceased (sister’s husband). He is also examined to support the case of the prosecution about mental harassment meted out. However, perusal of evidence of this witness would indicate that his version is based upon what has been conveyed to him by PW-4; brother of the deceased. 6.7 The Court has thereafter considered evidence of yet another relative of the deceased namely Savitaben Parmar at PW-8, vide Exh-63, who is sister of the deceased with regard to harassment to the deceased. This witness has identically deposed as her brother and father of the deceased. 6.7 The Court has thereafter considered evidence of yet another relative of the deceased namely Savitaben Parmar at PW-8, vide Exh-63, who is sister of the deceased with regard to harassment to the deceased. This witness has identically deposed as her brother and father of the deceased. However, this witness has in addition also deposed that at one point of time, father-in-law of the deceased i.e. accused No.3 had come to residence of this witness and told this witness to convince the deceased as the deceased was insisting to reside separately from other family members. This is indicative of the fact that there was an issue of deceased, who had preference to reside separately from other members of her matrimonial home and that was the dispute in the material life. 6.8 The Court has thereafter, considered evidence of important witness namely Pravinbhai Jashvantbhai Parmar at PW-3 vide Exh-40. This witness, according to the prosecution an eye-witness to the incident of falling of the deceased in the well and in his deposition, he has stated that on the date of incident, he had come across the deceased, while she was crossing over his agricultural field and she informed that as she was not feeling well, she is going towards well for fetching water for herself. It is at that stage that this witness hears shouts of the deceased, as if falling in the well and had therefore, immediately followed her by jumping into the well for rescuing the deceased. This witness has thereafter, deposed that he was unable to save the deceased and with great difficulty by crying out for help, he was rescued by the truck Driver passing by on the road near to the well. 6.9 In the opinion of the Court, evidence of this witness, who is prosecution witness to the accidental fall of the deceased inside the well accidentally and cannot be termed to be deliberate jump by the deceased in the well to commit the suicide. This witness has proved Exh-45, which is ‘Janvajog’ entry at the hands of this witness, which is much prior in point of time to ‘Janvajog’ entry at the behest of the informant. 6.10 The Court does not find anything contrary on the record to doubt the version of this witness, which is also consistent in Exh-45; ‘Janvajog’ entry. This witness has proved Exh-45, which is ‘Janvajog’ entry at the hands of this witness, which is much prior in point of time to ‘Janvajog’ entry at the behest of the informant. 6.10 The Court does not find anything contrary on the record to doubt the version of this witness, which is also consistent in Exh-45; ‘Janvajog’ entry. 6.11 The Court at the same time, has also taken into consideration panchnama of the scene of offence being Exh-69, which gives description of the ‘well’ as it existed actually when the deceased jumped into the ‘well’. It is pertinent to observe that embankment of the well surrounding was only of the ground level and that mouth of the well was also open and therefore, from the panchnama, it is coming out that the well was completely unprotected prone to any accidental fall into the well. This two evidences would in fact support the evidence of eye-witness; Pravin in his deposition, when he has indicated that the deceased had accidental fall in the well. 6.12 The Court would thereafter taken into consideration evidence of Medical Officer, who has performed the Postmortem report. Through this witness, prosecution has exhibited the Postmortem Note vide Exh-60. Medical Officer; Dr. Parash Patel at PW-7 vide Exh-59 has deposed giving out the details of injuries found on the body of the deceased. The details of such injuries have been stated to be anti mortem in nature and the cause of death is also attributed to such injuries. Certainly therefore, it is not the case, where the cause of death is on account of drowning. 6.13 In the cross examination, this found on the body of the deceased substance, which would have collided witness has deposed that injuries are possible with hard and blunt with the body, if the body has free fall inside the well and had come in contact with stones and other articles inside the well, in which the deceased had fallen. Therefore, in the opinion of the Court, this injuries being anti mortem and the death being attributed to such injuries, it is not case, where as prosecution is suggesting, but such injuries are more indicative about accidental fall rather than theory canvassed by the prosecution about the deceased jumping into the well to commit the suicide. Therefore, in the opinion of the Court, this injuries being anti mortem and the death being attributed to such injuries, it is not case, where as prosecution is suggesting, but such injuries are more indicative about accidental fall rather than theory canvassed by the prosecution about the deceased jumping into the well to commit the suicide. 6.14 It would be pertinent to take into consideration at this stage evidence of PW-1; Hinaben Panchal vide Exh-34, who was managing telephone booth, when as per the case of the prosecution, the deceased tried to telephonically contact the informant brother, this witness does not to the extend of case of the prosecution, was being an immediate cause of conveying nature of harassment to the informant as this witness has not deposed anything about conversation, but in fact deposition of this witness appears to give conduct of the deceased in very natural course, where deceased was unable to contact on telephone had immediately left telephone booth. Beyond that this witness has not narrated anything in support of prosecution. This witness will in fact indicate that the deceased did not sustain any injury till she had made telephone call from the booth of this witness and therefore, injuries, which were found on the body of the deceased were only after she had left telephone booth and therefore, probable cause of such injury is attributed to accidental fall in the well. 6.15 The Court has taken into consideration over all evidence lead by the prosecution and has found that the trial Court has found such evidence to be sufficient to convict the respondents-accused for offence under Section-498A of IPC. The Court has however, not accepted prosecution argument that the prosecution has placed on record evidence sufficient to support the case of the prosecution for conviction under Section-306 of IPC. 6.16 As discussed, herein above, the Court is independently after examining evidence of witnesses concluded that cause of death is accidental fall of the deceased in the well and cannot be attributed to any act on the part of the respondents-accused drawing the deceased to commit suicide. 6.16 As discussed, herein above, the Court is independently after examining evidence of witnesses concluded that cause of death is accidental fall of the deceased in the well and cannot be attributed to any act on the part of the respondents-accused drawing the deceased to commit suicide. 6.17 The Court has thereafter taken into consideration, as conviction under Section-498A of IPC is not subject matter of challenge and the Appeal filed by the State in this regard is for enhancement of sentence, the Court may consider the submissions made by learned APP in support of his argument that once the Court has arrived at conclusion and convicted the accused for offence under Section-498A, there are no reasons, for which punishment inflicted is only for a period of 9 months in case of respondent-accused No.1 and for 3 months for rest of the respondents-accused. It is submitted that once convicted sufficiency of evidence cannot be treated as parameter for imposing lessor sentence than prescribed for the offence. 6.18 As against this, the Court has taken into consideration submissions made by learned Advocate appearing for the respondents indicates that the Sessions Court has assigned cogent reasons in Para-26 of its judgment and order particularly addressing social status of the respondents-accused and two of the respondents-accused being of marriageable age, being the reasons for imposing sentence of three months. 6.19 While considering the evidence of the witnesses in so far as the case of the prosecution for Section-498A of IPC is concerned, the evidence that has come on record is that of relative of the deceased, who have indicated about the mental harassment meted out to the deceased even if the evidence of all this witnesses are considered, then also, there is no reflection of any physical harassment to the deceased and what has been deposed is mental harassment to the extend that she was made to do household work as if she is cattle and that she was not allow to undertake cooking activities in the kitchen and that she was being taunted upon being childless woman. This utterances are only attributed to the respondent No.2, who is mother-in-law of the deceased, whereas the reason for matrimonial dispute as per evidence against respondent No.1, is because she was going and residing at her matrimonial home, that the respondent No.1 was frequently required to go and bring her back to the matrimonial home and in so far as the respondent No.3 is concerned, who is father-in-law; one of the witnesses has deposed that he had approached witness to convince that the deceased not to insist upon the deceased and her husband to reside separately away from other family members. 6.20 Therefore, in so far as harassment, as is coming on record, in the opinion of the Court, can be attributed to the natural wear and tear of the matrimonial life, but will not be falling in the definition of cruelty under Section-498A of IPC and for that reason, gravity of cruelty, which has brought on record by the prosecution, punishment thus inflicted, in the opinion of the Court is sufficient. The Court has also found that the trail Court has assigned separate reasons in the form of recording social status of each of the respondents; particularly the respondent Nos.4 and 5 to the extend that both were young woman of marriageable age at the relevant time. On failure on the part of the prosecution to bring any other aspect on the record, the Court does not find anything to interfere even in the sentence thus imposed by the Sessions Court upon recording conviction under Section-498A of IPC. 7. In view of the aforesaid and for the reasons stated herein above, both the appeals and Criminal Revision Application fail and are dismissed. The impugned judgment and order dated 25-09-2009 passed by the Additional Sessions Judge and 3rd Fast Track Court, Panchmahal at Godhra in Sessions Case No.33 of 2009 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.