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Gujarat High Court · body

2025 DIGILAW 699 (GUJ)

Patel Rameshbhai Prabhudas v. State Of Gujarat

2025-07-08

GITA GOPI

body2025
JUDGMENT : GITA GOPI, J. 1. Four appellants are the original accused in Sessions Case no.51 of 2005 who were tried for the offence punishable under Sections 498A, 306 and 114 of the INDIAN PENAL CODE , 1860 (IPC) and Sections 3 and 7 of the Dowry Prohibition Act. The conviction was for the offence punishable under Section 498A of IPC read with Section 114 of IPC, whereby all the accused were ordered to undergo three years rigorous imprisonment and fine of Rs.5,000/- each, in default of payment of fine, three months simple imprisonment. 2. Report of the learned Additional Chief Judicial Magistrate, Siddhpur has been forwarded by the In-charge Sessions Judge, Patan. According to the report, death of appellant no.1 – Rameshbhai Prabhudas Patel has been verified by the ASI of Kakoshi Police Station who has obtained a copy of the death certificate and has recorded the statement and accordingly, on verification, it was found that the appellant no.1 had expired on 22.11.2013 and as per the statement, there are no legal heirs of Rameshbhai Prabhudas Patel. In view of the report and the copy of the death certificate, the case of appellant no.1 is ordered to be abated. 3. Mr. Indravadan Parmar, learned advocate for the appellants no.2 to 4 has submitted that inspite of the fact that all the witnesses who are family members of the deceased–Nayanaben had not supported the prosecution case, the learned Trial Court Judge merely on the evidence of PW6 - Investigating Officer has passed the judgment of conviction under Section 498A of the IPC, while at the same time, has disbelieved the case under Section 3 06 of IPC and even the case under the Dowry Prohibition Act. Learned advocate Mr. Parmar thus submitted that if the case under the Dowry Prohibition Act is not believed, then, there would not be any case under Section 498A of the IPC and the learned Trial Court Judge was required to acquit all the accused. Advocate Mr. Parmar further submitted that there cannot be any reliance on the evidence of the investigating officer when the same statements are not affirmed by the persons who had given the statement. Advocate Mr. Advocate Mr. Parmar further submitted that there cannot be any reliance on the evidence of the investigating officer when the same statements are not affirmed by the persons who had given the statement. Advocate Mr. Parmar has submitted that the complaint would have been immediately filed in the fist of anger noting the suicide of the sister, but the complainant himself has not supported any case of harassment or cruelty or of any dowry harassment, and equally, the learned Trial Court Judge has not believed the case under the Dowry Prohibition Act of any demand for money. Advocate Mr. Parmar has submitted that whatever had been given to the deceased was from her parents house, was received by the deceased herself. Kisan Vikas Patra which were put in evidence at Exhs.40 to 47 are in the joint name of both the husband and wife and the evidence on record shows that the husband and wife both with the daughter were staying separately from the parents and further submitted that marriage span is beyond seven years and thus, the provision of Section 113A of the EVIDENCE ACT would not get attracted in the present matter and rightly, the learned Trial Court has also observed that the marriage span has not been proved and the circumstances and the evidence on record proves that the marriage period was beyond seven years. Advocate Mr. Parmar has submitted that not a single witness of the family of the deceased have supported the prosecution case and when there would not be any legal evidence to convict the accused persons under Section 498A of the IPC. The FIR has been relied upon, but cannot be considered as substantive piece of evidence unless it is corroborated by the first informant and the same can only be used for the purpose of contradicting the first informant and when the first informant himself has not supported the FIR, then, there would not be any substantive legal evidence before the learned Trial Court, and only on the evidence of the investigating officer by relying upon the FIR, no conviction can follow more so when the learned Judge has not found any charge proved for the offence punishable under Section 3 06 of the IPC. Advocate Mr. Advocate Mr. Parmar further stated that any statement of the relatives of the deceased would be considered as hear-say evidence and there is no corroboration of such alleged cruelty or harassment and none of the witnesses support the prosecution case, thus, only on the strength of statement of the police, any case of cruelty and harassment cannot be said to be proved. 3.1 Advocate Mr. Parmar has placed reliance on the judgment of Renuka Prasad v. The State represented by Assistant Superintendent of Police passed in Criminal Appeal no.3189-3190 of 2023 to submit that the Hon'ble Supreme Court has clarified that the statement made by the investigating officer regarding the prosecution case as discernible from the statement under Section 161 of the Cr.P.C. of various witnesses questioned by the police during the investigation are inadmissible under Section 162 of the Cr.P.C. and merely because the investigating officer has stated that such statements were made by the witnesses during the investigation, does not get any credibility. Hence, in this case, Advocate Mr. Parmar has submitted that the learned Judge reliance on the evidence of the investigating officer is bad in law. 3.2 Learned advocate Mr. Parmar has also referred to the judgment of this Court in the case of State of Gujarat v. Dipakji Somaji Thakore & Ors., passed in Criminal Appeal no.1373 of 2010 dated 1.3.2023, to submit that every act of harassment need not fall within the definition of cruelty and the prosecution must establish that cruelty or harassment was unabated, incessant, persistent and of such a grave nature that it would be unbearable for a woman to such extent that it may drive woman to commit suicide. 4. Mr. Rohankumar Raval, learned APP has referred to the deposition and the documentary evidence on record and has submitted that if the prosecution witnesses fail, then, reliance has to be placed on the evidence of the investigating officer who has to be considered as an independent witness since he would not have any motive to falsely implicate the accused. Learned APP has submitted that here there is a concrete evidence in the form of Kisan Vikas Patra, which has been placed on record at Exhs.40 to 47, which could prove the fact that the money was deposited by the family members of the deceased and was deposited in the joint name of the deceased and the husband. Learned APP has submitted that here there is a concrete evidence in the form of Kisan Vikas Patra, which has been placed on record at Exhs.40 to 47, which could prove the fact that the money was deposited by the family members of the deceased and was deposited in the joint name of the deceased and the husband. The circumstantial evidence would support the case and hence, the conviction under Section 498A of IPC is just and proper with an appropriate sentence ordered by the learned Trial Court. 5. In the present matter, the prosecution has examined about seven witnesses and about twenty six documentary evidence were produced on record. By Exh.37, report was sent for adding Section 498A of IPC and Sections 3 and 7 of the Dowry Prohibition Act. The witnesses were two brothers and one sister-in-law of the deceased and the Doctor who had conducted the postmortem PW5 – Musamiya Jahangirmiya have recorded the complaint at Kakoshi Police Station bearing CR no.8 of 2005 under Sections 3 06 and 114 of IPC and had deputed the investigation. Nothing further has come in his cross- examination. The witness – PW6 – Natthekhan Muradkhan Sindhi who on 24.2.2005 was at Kakoshi Police Station and during that period, PSO had informed him about the incident and therefore, visited the place of incident and had drawn Panchanama Exh.26 in presence of Panchas and he found burnt articles of clothes, match stick and has stated that at the place of incident, there was stench of kerosene. Inquest Panchnama was drawn of the deceased at Exh.27 and statement of the witnesses were recorded. He has referred to the arrest being made. This witness thereafter sends the report Exh.37 for invoking Section 498A of IPC and Sections 3 and 7 of the Dowry Prohibition Act, and stated that further investigation was handed over to PW7 – Mansukhbhai Ratilal Karanjiya to investigate the matter under Sections 3 06 and 114 of IPC and Dowry Prohibition Act along with Section 498A of IPC. He received the investigation on 21.3.2005 and he had during the course of investigation recorded the statement of the witnesses those who were staying near the place of incident. He received the investigation on 21.3.2005 and he had during the course of investigation recorded the statement of the witnesses those who were staying near the place of incident. During the time of investigation, he had also seized copies of Kisan Vikas Patra, which were in the name of the deceased–Nayanaben and he inquired through the post master by sending a correspondence at Exh.39 and thereafter, had kept Exhs.40 to 47, copies of Kisan Vikas Patra in the record of investigation. He in his deposition denied the suggestion that since the witnesses surrounding the place of incident had not supported the prosecution case and therefore, has not filed their statement along with the charge-sheet. He affirmed that he has not recorded the statement of officer of post office in connection with Kisan Vikas Patra and has also affirmed that he had not secured the original of Kisan Vikas Patra during the course of investigation. 6. The learned Trial Court Judge was required to verify the statements recorded by the investigating officer, while has placed reliance on PW6 who had no authority at the relevant time to investigate the case for the invoked section. PW6 was Police Sub-Inspector. The statement which he was authorised to record was in connection with the incident of suicide while would have no authority to record the statements for the invoked provision of Section 498A of IPC and also Sections 3 and 7 of the Dowry Prohibition Act. The learned Judge has committed a gross error in relying on the statements before the police where all the witnesses have not supported the prosecution case. PW2 is the complainant – Rameshbhai Patel. He has denied of any harassment or any rebuke from the side of the in-laws. He had received the information of death of his sister and niece Sunita. He has denied of any statement in the complaint given before the police. According to him, his sister had married 7-8 years ago and has very clearly stated that there was no demand of any ornaments or cash from the side of the in-laws and he stated that the money which was given to the sister was not in cash, but in the form of Kisan Vikas Patra and such money was given to the sister for the welfare of the niece so that it could be used during the marriage of niece. PW3 – Taraben who is wife of PW2 in her deposition has stated that the marriage life was smooth and during Ziyanu after the birth of niece, they had given clothes, chain and pair of earings. She has denied her statement before the police and according to her, probably her sister-in-law must have committed suicide since he could not give birth to a son. PW4 – Prakashbhai Patel is also the brother of the deceased as well as the complainant. He has not supported the prosecution case. According to him, after the marriage, his sister and husband as well as niece were staying separately. She has always stated that her in-laws were keeping her well and there was no demand of any ornaments or money. She was always worried about not having a son. The learned Judge has not believed the case under Section 3 06 of the IPC. 7. In the case of Renuka Prasad (supra), it has been observed in Paragraphs 26, 46, 48 and 49 as under:- “26. The statements made by the IOs regarding the motive, conspiracy and preparation comes out as the prosecution story, as discernible from the Section 161 statements of various witnesses who were questioned by the police during investigation; which statements are wholly inadmissible under Section 162 of the Cr.P.C. Merely because the IOs spoke of such statements having been made by the witnesses during investigation, does not give them any credibility, enabling acceptance, unless the witnesses themselves spoke of such motive or acts of commission or omission or instances from which conspiracy could be inferred as also the preparation, established beyond reasonable doubt. We are unable to find either the motive, the conspiracy or the preparation or even the crime itself to have been established in Court, at the trial through the witnesses examined before Court. The witnesses had turned hostile, for reasons best known to themselves. The only inference possible, on the witnesses turning hostile is that either they have been persuaded for reasons unknown or coerced into resiling from the statements made under Section 161 or that they had not made such statements before police officers. Merely because the story came out of the mouth of the IO, it cannot be believed and a legal sanctity given to it, higher than that provided to Section 161 statements under Section 162 of the Cr.P.C. 46. Merely because the story came out of the mouth of the IO, it cannot be believed and a legal sanctity given to it, higher than that provided to Section 161 statements under Section 162 of the Cr.P.C. 46. We cannot but observe that the judgment of the High Court reversing the order of acquittal of the Trial Court proceeds on mere surmises and conjectures relying wholly on the testimony of the Investigating Officers, who merely regurgitated the statements recorded under Section 161 and the voluntary statements of the accused. As has been rightly pointed out in Ramesh v. State of Haryana, (2017) 1 SCC 529 when the statements recorded under Section 161 of the Code of Criminal Procedure is resiled from, there arises a possibility that the police coerced such statements, but considering the huge prevalence of such instances, as in the present case, of the entire witnesses turning hostile, there could be various other factors also. It could be for fear of deposing against the accused, political pressure, pressure from family or society and even instances of monetary consideration. We do not think that the High Court could have relied on the decision to hold that the reason for the enblock hostility of witnesses at trial, could only be due to the influence wielded by the accused who had even persuaded the wife of the deceased to turn hostile; which reasoning is presumptuous and fallacious. 48. Though Chandrappa, Criminal Appeal no.3189-3190 of 2023 was specifically noticed by the High Court, the principles were not rightly appreciated, while setting aside the order of acquittal. It has been emphasized that when there are two reasonable views possible from the evidence led, the one favouring the accused should be adopted, especially since the presumption of innocence of the accused until proved guilty, a fundamental tenet of criminal jurisprudence, stands further strengthened by the order of acquittal. In the present case, we are afraid that there are not even two views coming forth from the evidence. The only view that comes forth is that the prosecution completely failed to prove the allegations raised and charged against each of the accused, more by reason of all the witnesses paraded before Court, at the trial, having turned hostile for reasons unknown. The only view that comes forth is that the prosecution completely failed to prove the allegations raised and charged against each of the accused, more by reason of all the witnesses paraded before Court, at the trial, having turned hostile for reasons unknown. Whatever be the reason behind such hostility, it cannot result in a conviction, based on the testimony of the Investigating Officers which is founded only on Section 161 statements and voluntary statements of accused; the former violative of Section 162 of the Cr.P.C and the latter in breach of Sections 25 & 26 of the EVIDENCE ACT . 49. We cannot but say that the High Court has egregiously erred in convicting the accused on the evidence led and has jumped into presumptions and assumptions based on the story scripted by the prosecution without any legal evidence being available. Truth is always a chimera and the illusion surrounding it can only be removed by valid evidence led, either direct or indirect, and in the event of it being circumstantial, providing a chain of circumstances with connecting links leading to the conclusion of the guilt of the accused and only the guilt of the accused, without leaving any reasonable doubt for any hypothesis of innocence. We can only accede to and share the consternation of the Division Bench of the High Court, which borders on desperation, due to the futility of the entire exercise. That is an occupational hazard, every judge should learn to live with, which cannot be a motivation to tread the path of righteousness and convict those accused somehow, even when there is a total absence of legal evidence; to enter into a purely moral conviction, total anathema to criminal jurisprudence. With a heavy heart for the unsolved crime, but with absolutely no misgivings on the issue of lack of evidence, against the accused arrayed, we acquit the accused reversing the judgment of the High Court and restoring that of the Trial Court.” 8. In Jaydeepsinh Pravinsinh Chavda v. State of Gujarat , reported in 2025 (2) GLR 1448, the Hon'ble Supreme Court has dealt with the provision of Section 498A of IPC and has observed in Paragraphs 8 to 11 as under:- “8. Section 498A, IPC provides for punishment to the husband or to relatives of the husband of a woman subjecting the woman to cruelty. Section 498A, IPC provides for punishment to the husband or to relatives of the husband of a woman subjecting the woman to cruelty. ‘Cruelty’ under this provision has been explained to mean – (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 9. This Court in the case of U. Suvetha v. State, 2009 (6) SCC 757 laid down the following ingredients to constitute the offence under section 498-A, IPC: i. The woman must be married; ii. She must be subjected to cruelty or harassment; and iii. Such cruelty or harassment must have been done either by husband of the woman or by the relative of her husband. 10. This Court has also held in the judgment in the case of State of A.P. v. M. Madhusudhan Rao, 2008 (15) SCC 582 , that not every kind of harassment would amount to ‘cruelty’ within the meaning of the provision, to constitute the offence punishable therein. Every case has to be analysed on its individual facts to assess whether the act of the accused persons constitutes cruelty. Further, cruelty can either be mental or physical, and it is to be seen on the facts of each case. 11. From the above understanding of the provision, it is evident that, ‘cruelty’ simpliciter is not enough to constitute the offence, rather it must be done either with the intention to cause grave injury or to drive her to commit suicide or with intention to coercing her or her relatives to meet unlawful demands.” 9. At this stage, it would be apt to refer to the decision in the case of Namdeo s/o. Laxman Bansode v. The State of Maharashtra , reported in Criminal Revision Application no.344 of 2004 dated 23.9.2024 before the High Court of Judicature of Bombay Bench at Aurangabad, wherein it has been observed in Paragraphs 24, 26 and 27 as under:- “24. To prove the charge of Section 498A of the INDIAN PENAL CODE , the prosecution has to establish that the husband or his relative subjects such woman to cruelty. The term "cruelty" is explained in two parts in the said Section. The first part speaks of willful conduct of a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health, either physical or mental, of such woman. The second part provides for harassment of a woman with a view to coercing her or any person related to her to meet unlawful demand for any property or valuable security on account of these failure, or any person related to her to meet such demand. 26. Section 498A of the IPC does not attract every harassment or every type of cruelty. The prosecution has to establish that the beating and harassment of the deceased were with a view to force her to commit suicide or to fulfil the illegal demand of dowry. Mere harassment for dowry or causing grave injury to her life or limb or health is not cruelty, as explained in Section 498A of IPC. To constitute the offence under this Section, it is to be established that the harassment was caused by coercing the woman to meet unlawful demands. 27. In Smt. Raj Rani v. State (Delhi Administration), AIR 2000 SC 3559 , the Hon'ble Supreme Court held that when considering the case of cruelty with the context to the provision of Section 498A of IPC, the Court, must examine that the allegations/ accusations must be of a very grave nature and should be proved beyond a reasonable doubt. 10. Here none of the witnesses have supported any case of cruelty by way of dowry demand or any harassment and the witnesses have not proved the case under Section 498A of the IPC, when the learned Trial Court Judge has rightly observed that the case under Section 306 of IPC was not proved. Reliance on the statement before the police who is not even the investigating officer of the matter cannot be relied upon for the conviction. There was no evidence to prove any cruelty. None of the witnesses who were the family members of the deceased have stated of the cruelty. Reliance on the statement before the police who is not even the investigating officer of the matter cannot be relied upon for the conviction. There was no evidence to prove any cruelty. None of the witnesses who were the family members of the deceased have stated of the cruelty. In view of the reasons given hereinabove and the observations made in the judgment as referred, the learned Judge has placed wrong reliance on the statement to the police to convict the accused. The judgment is perverse and contrary to the record and against the settled principles of law, where the statement before the police recorded under Section 161 of Cr.P.C. are not signed document and are not admissible under Section 162 of Cr.P.C. to be read in evidence. The conviction is bad and hence, is hereby set aside. 11. For the reasons recorded in the judgment, the appeal is allowed. The conviction and sentence of the accused passed vide judgment and order dated 8.9.2006 by the learned Additional Sessions Judge, Fast Track Court, Patan in Sessions Case no.51 of 2005 is quashed and set aside. Registry is directed to send the record and proceedings back to the concerned Trial Court forthwith.