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2023 DIGILAW 534 (GUJ)

VIRDAS MADHAVDAS JADAV v. STATE OF GUJARAT

2023-03-29

A.Y.KOGJE, M.R.MENGDEY

body2023
ORDER : 1. Present Appeal is preferred under Section 372 of the Code of Criminal Procedure, 1973, against the acquittal recorded by the judgment and order dated 04-04-2022 passed by third Additional Sessions Judge, Jamnagar in Sessions Case No. 101 of 2017. By the aforesaid judgment and order, the respondent Nos. 2 and 3 have been acquitted for the offences under Section-498(A), 304(B), 306, 406 and 114 of the Indian Penal Code and under Section 3 and 5 of the Dowry Prohibition Act. 2. The Appeal is preferred by the original complainant of F.I.R. registered as C.R. No. I-213 of 1994 with Jamnagar City ‘B’ Division Police Station for the offences under Section-498(A), 304(B), 306, 406 and 114 of the Indian Penal Code and under Section 3 and 5 of the Dowry Prohibition Act. 3. Pursuant to the F.I.R. being registered, charge-sheet came to be filed on 05-12-1994. The charge was framed vide Exh-13 for the offences under Section-498(A), 304(B), 306, 406 and 114 of the Indian Penal Code and under Section 3 and 5 of the Dowry Prohibition Act. 4. The respondent No. 2 is mother in law and respondent No. 3 is husband of the deceased; daughter of the original complainant. 5. Learned Advocate for the appellant has placed on record the Paper-book containing relevant evidence, on which he has placed reliance to challenge the impugned judgment and order, urges the court to take up the case for final disposal. 6. It is submitted that the Sessions Court has committed an error in not correctly appreciating the suicide note (Exh-62), as commission of suicide is attributable to demand of dowry made by the accused from the deceased. This aspect is also supported by the deposition of the complainant (PW-6) Virdas Madhavdas Jadav; vide Exh-40 and therefore, by considering the fact that the period of marriage was hardly 10 months and there being deposition of PW-6 in support of dowry demand, the Sessions Court ought to have recorded conviction by invoking Section-114 of the Evidence Act. 7. Learned Advocate has laid great emphasis on the fact that the alleged incident is of the year 1994 and the trial could be conducted only in the year 2020 and therefore, the trial was actually conducted after almost 25 years. As a result of which, material witnesses have not deposed it in effective manner on account of memory having faded. 8. As a result of which, material witnesses have not deposed it in effective manner on account of memory having faded. 8. Learned Advocate for the appellant has thereafter submitted that certain letters were handed over by the complainant to the Investigating Agency, which were indicating the demand of dowry, though according to the complainant, said material was part of the charge-sheet, but same could not be produced in original, as it was lost. The appellant along with the Paper-book, has also placed on record such letters, which are back to the year 1993-1994 in hand written vernacular language. It is submitted that the damage is caused to the prosecution on account of lapse of time between the incident and the conclusion of the trial and also, on account of loss of original case papers at the Police Station, which is evident from the communication vide Exh-65. 9. Having considered the submissions made by the learned Advocate to challenge the impugned judgment and order and having perused the documents placed by way of the Paper-book, it is apparent that vide Exh-13, the charge was framed for the offences under Section-498(A), 304(B), 306, 406 and 114 of the Indian Penal Code and under Section 3 and 5 of the Dowry Prohibition Act. The same was arising out of an incident, which took place on 01-05-1994, for which F.I.R. registered as C.R. No. I-213 of 1994 with Jamnagar City ‘B’ Division Police Station. It appears that the deceased; Meenaben had married to the respondent no. 3-Kishor Gangaram Sindhav in the year 1993. It is alleged that the respondents were harassing the deceased mentally and physically for demand of dowry under one protest or the another. 10. The evidence of Doctor, who performed the postmortem is recorded as PW-1; Dr. Chetan Biharilal Jani vide Exh-52, who has after discussing the nature of injuries received, has opined that the cause of death is on account of burn injuries. However, at the same time, in the cross examination, he has deposed that there was no sign or smell of kerosene on the body of the deceased at the time of carrying out of postmortem. He has also deposed that there is no note made with regard to any smell of kerosene from the cloths of the deceased. It is deposed that this witness could not say conclusively that the death was accidental or suicidal. He has also deposed that there is no note made with regard to any smell of kerosene from the cloths of the deceased. It is deposed that this witness could not say conclusively that the death was accidental or suicidal. The Inquest panch has been declared hostile. 11. It is the case of the prosecution that the deceased was driven to commit the suicide and therefore, the respondent Nos. 2 and 3 have abated the commission of suicide. In that regard, if evidence of the complainant (PW-6) Virdas Madhavdas Jadav; vide Exh-40 is perused, in the entire evidence, nothing is coming out with regard to demand of dowry and the only evidence coming out is that at one stage, father-in-law for the purpose of getting Government service for the deceased, had asked father of the deceased to pay Rs. 10,000/- out of which, Rs. 4,000/- was paid by this witness, so as to secure the Government job for his daughter. 12. Another incident of such demand referred to by this witness is for purchase of Auto-rickshaw. However, no such amount was admittedly paid by this witness. If the deposition is closely seen then, such demand was not in near proximate period, during which the incident took place. It would be at this stage relevant to examine closely Exh-62, which is suicide note written by and in the handwriting of deceased; Meenaben. Perusal of this suicide note does not attribute any act, which can amount to cruelty or an act, which would drive the deceased to commit suicide. Only relevant thing, which was mentioned that whatever articles were received in marriage, may be returned back to the parents of the deceased. The contents of Exh-62 also indicate that there was no pressure from any of the family members in this regard. 13. It would be appropriate to discuss the evidence of important witness PW-3; Girishkumar Ratandas Jadav vide Exh-31, who is cousin brother of the deceased and also son-in-law of both the complainant as well as accused family. Perusal of this evidence would clearly indicates that how the incident had taken place, as this witness was himself present, when the incident took place and has clearly deposed that he saw smoke coming out from the room of deceased; Meenaben and saw her ablaze. At that time, his son Manoj and Landlord; Narendra rushed to douse the fire. Perusal of this evidence would clearly indicates that how the incident had taken place, as this witness was himself present, when the incident took place and has clearly deposed that he saw smoke coming out from the room of deceased; Meenaben and saw her ablaze. At that time, his son Manoj and Landlord; Narendra rushed to douse the fire. At the same time, the respondent No. 3; Kishor also woke up and immediately ran to douse the fire. At that time, this witness has seen in the room from where smoke was coming and deceased; Meenaben was ablaze. Primus and vessels, which were in spilled manner and at that time, deceased; Meenaben who was able to communicate indicated that while she was trying to reach for Saucer for the tea, at that time, her cloths caught fire from the burning primus. 14. This witness has categorically indicated that as and when deceased; Meenaben used to visit there, she had never indicated anything about harassment from the respondents side. 15. The Sessions Court on the basis of incident narrated by this witness, has found that the prosecution was unable to establish as to whether the death of deceased; Meenaben was suicidal death or accidental death. 16. The Court has perused the impugned judgment and order and the Court finds that if evidence of the cousin brother of the deceased at Exhibit 31 is evaluated, it does not transpire from the depositions of the said witnesses that the deceased in the present case had suffered any kind of harassment from her in-laws. Thus, if evidences of the relatives/witnesses of the deceased on record are read, the same can be said to be abatement as per the judgment. Whatever allegations are made in this regard are general in nature. 17. The person who conducted investigation vide Exhibits 61, 69 does not also state as to whether the accused had caused any particular kind of harassment or cruelty to the deceased. But he has stated that in the room where the deceased was burnt, there were stove, tea vessel and tea split on the surface. It does not appear that any demand for a particular thing was made regarding dowry. But he has stated that in the room where the deceased was burnt, there were stove, tea vessel and tea split on the surface. It does not appear that any demand for a particular thing was made regarding dowry. Thus, from all the produced evidences, the Prosecution has not been able to bring on record that the accused had caused harassment to the deceased for dowry or any other matter due to which the deceased was abetted to commit suicide. Under these circumstances, this court is not inclined to make presumption as per sections 113 (A) and 113 (B) of the Indian Evidence Act. 18. The Sessions Court has also given reasons and findings that as it transpires that the police witnesses for Prosecution have taken action as part of their duty, the evidences of police can be used as corroborative evidence, however the evidence of police witness cannot be decided as conclusive evidence when in the depositions of the father, brother and other independent witnesses of the deceased, there is no consistent evidence on record that the deceased was abetted to commit suicide due to the harassment caused by the accused and the evidence thereof, for which the accused can be convicted. As the Pancha Witnesses of the Panchnama produced in this case have also been declared hostile, the Prosecution has not been able to prove any of the Panchnama. Thus, the Prosecution has failed to prove beyond reasonable doubt that the deceased has committed suicide due to abatement of the accused. 19. The arguments on the basis of documents at Exh-65, which is communication addressed by the Police Inspector of Jamnagar City ‘B’ Division Police Station regarding whereabouts of the original case papers of the Police Station. However, the witness producing vide Exh-65 on record being PW-9; Ashish Amubhai Khimaniya vide Exh-64 has in his cross examination stated that original F.I.R. was forwarded to the Magistrate at the relevant time and the investigation case papers were also placed with the committing Court along with charge-sheet papers and therefore, when the investigation case papers relevant for the purpose of conducting of the trial, was already in the custody of the Court and that during the course of the trial, witnesses have deposed and relevant documents have been exhibited. This Court is of the view that the trial was not at all impede on account of the original case papers of the Police Station, not placed before the trial Court. 20. The attempt on the part of learned Advocate to refer to documents, which are annexed from Page-23 to 26 along with Paper-book, which according to the appellant are the documents, which were handed over to the investigation case papers and relevant for the same, it would be appropriate that this documents have not been exhibited as evidence before the trial Court and if at all, this documents are to be considered by this Court, then, appellant has failed to follow the due process for placing the evidence as an additional evidence at the stage of Appeal. In absence of any such procedure being undertaken by appellant, the Court is not inclined to take cognizance of the documents, which are placed along with the Paper-book, but were not exhibited before the trial Court. 21. At this stage, it would be appropriate to observe that the respondent No. 2-Amrutben Gangaram Sindhav has expired on 06-11-2022. Therefore, the trial qua her had abated. 22. This Court while accepting the reasoning given by the Sessions Court and so also the separate reasoning given herein above, the Court does not find any reason to interfere with the impugned judgment and order. 23. In the result, the appeal fails and is dismissed. The judgment and order dated 04-04-2022 passed by third Additional Sessions Judge, Jamnagar in Sessions Case No. 101 of 2017 stands confirmed. Bail and bail bonds of the accused, if any, stand discharged. R&P be sent back to the concerned Trial Court.