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2024 DIGILAW 403 (GUJ)

State of Gujarat v. Goswami Devgar Keshgar

2024-02-29

A.S.SUPEHIA, VIMAL K.VYAS

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JUDGMENT : A.S. SUPEHIA, J. 1. Learned APP has tendered a report of the Police Inspector, Dhanera Police Station, dated 2nd February 2024. The same is ordered to be taken on record. 2. The report reveals that the accused no. 1 Devgar Keshgar Goswami has passed away on 28th April 2023. The death certificate is also produced along with the report. Hence, the present appeal abates so far as the accused no. 1 is concerned. The present appeal now survives against the accused nos. 2, 3, 5, 7 and 8. The other accused nos. 1, 4 and 6 have passed away. 3. The appeal is filed under the provisions of Section 378(1)(3) of the Code of Criminal Procedure, 1973, by the State challenging the judgment and order of acquittal of the accused dated 24th August 1999 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 35 of 1998. 4. The case of the prosecution as per the charge Exh.3 is that the accused no. 1 was married with the deceased in the year 1994. After the marriage, the deceased was subjected to harassment and cruelty and the accused no. 1 was demanding money from the father of the deceased, and on 15th October 1997 at around 8:00 p.m. all the accused person strangulated the deceased and also a four months child. The charge under Sections 498A, 304B and 302 read with Section 34 of the Indian Penal Code was framed. The trial court, after analyzing the documentary as well as oral evidence, has acquitted all the accused from the offences for which they were charged, by giving benefit of doubt. 5. Learned APP has submitted that the learned Judge ought to have seen that from the evidence of the doctor, who performed the postmortem of the deceased Gitaben, and her daughter, it is crystal clear that the death of the deceased was doubtful. He has further submitted that the learned Judge ought to have seen that the death of the deceased Gitaben had taken place within a period of three years of her marriage and, therefore, looking to the brevity of her marriage life, the learned Judge ought to have presumed under Section 113 of the Evidence Act. 6. Learned APP has submitted that the learned Judge ought to have seen that there was a demand of Rs. 6. Learned APP has submitted that the learned Judge ought to have seen that there was a demand of Rs. 20,000/- from the accused for purchase of buffalo and as the aforesaid demand was not satisfied, the accused murdered the deceased Gitaben. It is submitted that looking to the panchnama and conduct of the accused, it is crystal clear that the accused are involved in the present case and, therefore, the learned Judge ought to have convicted all the accused for the charges for which they were charged. 7. Learned APP has submitted that the learned Judge has not properly appreciated the depositions of the complainant - PW-1/Ganeshpuri Hamirpuri at Exh.20 and PW-2 Rakhuben Ganeshpuri at Exh.24. These two witnesses have been examined by the prosecution and they have clearly deposed in their deposition with regard to the harassment and cruelty given by the accused persons to the deceased, and as their demand of dowry was not satisfied, they murdered the deceased Gitaben. 8. Learned APP has further submitted that the reasons assigned by the learned Judge while acquitting the accused as well as while appreciating the evidence on record are improper, perverse and unwarranted. Therefore, he has urged before this Court that the appeal be allowed and the accused be convicted for the offences for which they were charged. 9. We have perused the evidence which has surfaced on record as well as the findings of the trial court. At the outset, it would be relevant to refer to the postmortem report of the deceased wife of the accused no. 1 at Exh.30, wherein the doctor has specifically opined the cause of death is by asphyxia due to hanging. 10. The PW-4/Dr. Kishorbhai Shambumal Thakkar (Exh.29), who has undertaken the postmortem of the deceased, has categorically stated that the death of the deceased was due to hanging. Thus, the version of the doctor corroborates with the medical evidence as well as the defence witnesses. 11. The defence witness no. 1-Thakor Balvantsinh Ghudji has categorically stated that on the night of the incident, the accused no. 1 was driving a jeep. The defence witness no. Thus, the version of the doctor corroborates with the medical evidence as well as the defence witnesses. 11. The defence witness no. 1-Thakor Balvantsinh Ghudji has categorically stated that on the night of the incident, the accused no. 1 was driving a jeep. The defence witness no. 2- Bhavabhai Chehrabhai Patel, who is residing opposite the house of the deceased and the accused, has categorically deposed that in the evening, when they heard the cries of some persons, they rushed to the house of the deceased and he found the room to be locked from inside, they accordingly pushed the door and found that the deceased was hanging with the rope fastened on the wooden log and the minor, who was sleeping in the pram nearby, was found dead. 12. Thus, we do not find the evidence of both these witnesses tainted with any contradiction or over implication or omission. Thus, the allegations with regard to murder do not get established by the medical evidence as well as the evidence of the defence witnesses. We do not find any infirmity in the findings recorded by the trial court so far as the charge of murder is concerned. The trial court has precisely held that the deceased died due to hanging and she strangulated the minor. 13. So far as the charge under Section 498A of the IPC is concerned, it would be apposite to refer to the deposition of the father of the deceased PW-1/Ganeshpuri Hamirpuri at Exh.20. From his deposition, it is apparent that he improved his version from the version recorded in his initial FIR. All the allegations are made against the accused no. 1, who has now passed away, and even if the same are believed to be true, the appeal has been abated against him. However, the version recorded in the FIR at Exh.21 does not reconcile with the version as recorded by the trial court as he has made the allegation with regard to demand of Rs. 20,000/- by the accused. Similarly, the PW-2, i.e. the mother of the deceased, namely, Rakhuben Ganeshpuri at Exh.24 has, in her cross-examination, admitted that, in fact, at the time of marriage and thereafter, the accused have not demanded anything from them since they were surviving on begging and this fact was also known to the other side. 20,000/- by the accused. Similarly, the PW-2, i.e. the mother of the deceased, namely, Rakhuben Ganeshpuri at Exh.24 has, in her cross-examination, admitted that, in fact, at the time of marriage and thereafter, the accused have not demanded anything from them since they were surviving on begging and this fact was also known to the other side. She has admitted that at the time of marriage, they have categorically stated that they do not want anything in dowry. Even, otherwise, the allegations are premised against the accused no. 1 (husband of the deceased), who has now passed away. 14. On the overall appreciation of the evidence, we find that the trial court has not committed any infirmity or illegality in the judgment and order of acquittal. Hence, the present appeal is dismissed. Records and proceedings be sent back.