CR.A/1904/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1904 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== SURESHKUMAR CHHAGANBHAI RAVAL. Versus STATE OF GUJARAT. =============================================== Appearance : Mr DR BHATT for the Appellant. Mr UR BHATT, APP, for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 18/11/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) CR.A/1904/2005 2/9 JUDGMENT 1. The appeal arises out of a judgment and order rendered by learned Additional Sessions Judge, 10th Fast Track Court, Himmatnagar, on 14th July, 2005, in Sessions Case No.32 of 2005, convicting the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code, so also under Sections 3 and 7 of the Dowry Prohibition Act. The Trial Court directed the appellant to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 498-A of the I.P.C. The Trial Court also directed the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 306 of the I. P.C. The Trial Court further ordered the appellant to undergo rigorous imprisonment for five years and to pay a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for three years for the offence punishable under Sections 3 and 7 of the Dowry Prohibition Act. Aggrieved by the said judgment and order, the appeal is preferred. 2. The appellant is the resident of Himmatpur of Himmatnagar Taluka of Sabarkantha District and was married to Kailashben, daughter of Shanabhai Punjabhai Raval of village Meherwada. From the wedlock, he has a daughter named “Kinjal”, aged about three years. 2.1 According to the prosecution case, the appellant and three others, namely, (1) Babubhai Chhaganbhai Raval, (2) Nareshbhai Chhaganbhai Raval and (3) Rameshbhai Karsanbhai Raval, who are brothers and cousin of the appellant, were responsible for the suicide committed by Kailashben. It is the case CR.A/1904/2005 3/9 JUDGMENT of the prosecution that the appellant caused cruelty and harassment to the deceased on instigation by his two brothers, Babubhai and Nareshbhai, and cousin, Rameshbhai. Because of the harassment, the deceased committed suicide on 26th January, 2005 between 6.00 P.M. and 8.00 P.M., in her house, by hanging herself in the room. 2.2 After the incident was noticed, the parents of the deceased were informed so also the police and an accidental death came to be registered by the police, which is at Exhibit 25. However, on arrival of the parents, father of the deceased lodged an F. I. R. with the police, at Exhibit 14, on the basis of which an offence for abetment of suicide and offences under the Dowry Prohibition Act came to be registered. The investigation was made and charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, at Himmatnagar, who, in turn, committed the case to the Court of Sessions, Himmatnagar. 2.3 Charge was framed at Exhibit 2, to which the appellant and his co-accused pleaded not guilty and claimed to be tried. On appreciation of evidence led by the prosecution, the Trial Court came to a conclusion that the prosecution was successful in establishing the charges against the appellant and recorded his conviction. The Trial Court also came to a conclusion that the prosecution could not establish the charges against the remaining three accused persons and recorded their acquittal. It is against the order of conviction that the present appeal is preferred and the order of acquittal is not challenged by preferring any appeal. 3. Learned Advocate for the appellant contended that the conviction is recorded on the basis of a presumption available CR.A/1904/2005 4/9 JUDGMENT under the Evidence Act on a premise that the incident occurred within seven years of marriage of the appellant with the deceased whereas there is no concrete evidence to show that the marriage span was of less than seven years. It is also contended that the allegation of demand of dowry is not properly proved. It has come in evidence that there is no custom of dowry in the community of the appellant. On the contrary, there is a converse practice whereunder the husband or his parents pay money to the parents of the wife and, accordingly, the accused paid Rs.30,000/- to the complainant. According to the learned Advocate, the accused is a man of self-respect and had to sell off his camel cart for repayment of his debt. The deceased, who was a sensitive person, was, therefore, disturbed and committed suicide. There was never any demand raised by the appellant nor it is proved to have been raised by way of dowry. There is no evidence of any cruelty having committed by the appellant and the Trial Court ran into an error while recording conviction and sentencing the appellant, as indicated above. It is contended that no independent witness supports the case of cruelty or the allegation of demand of dowry. On the contrary, there is evidence of a neighbour, who says that there was no dispute between the husband and the wife, i.e. the appellant and the deceased, and they were living peacefully. The allegation comes only from the parents of the deceased. There is no evidence of any proximate act on the part of the appellant to constitute the offence punishable under Section 306 of the I.P.C. He, therefore, submitted that the appeal may be allowed. 4. On the other hand, the appeal is opposed to by learned Additional Public Prosecutor, Mr. Bhatt. He submitted that the Trial Court has discussed and appreciated the evidence and there is no need to disturb the finding in exercise of appellate jurisdiction. He submitted that the appeal may, therefore, be dismissed. CR.A/1904/2005 5/9 JUDGMENT 5. On examination of the record and proceedings, it is found that first informant, Shanabhai Punjabhai, is examined is at Exhibit 13. He is the father of deceased-Kailash. He states that Kaliash was formerly married at village Chhattiyada about eight years back and was divorced therefrom and, thereafter, was married to the appellant. According to him, the marriage between the appellant and Kailash took place about two years prior to the incident. He says that from the wedlock, they have a daughter named “Kinjal”, who is aged three years. According to him, the accused used to send the deceased to his place asking for money. He says that once he paid Rs.5000/-, which he had saved from his income. When that money was spent out, she was again put to harassment for money. The appellant sold off his camel cart. He had to sell off his camel cart because of his vice of drinking. 5.1 He says that on learning about the incident, they went to Himmatpur and found that Kailash was lying in a cot dead and she was probably strangulated. They, therefore, went to Gambhoi from Himmatpur and called people from Meherwada by making a phone call. Thereafter, they went to police and lodged the F.I.R. at Exhibit 14 on 27th January, 2005. 5.2 The witness is cross-examined. He admits that from the first marriage, the divorce took place after two years of the marriage. He admits that there is a custom of paying “Dapu”, i.e. payment of money by the bridegroom to the parents of the bride. He admits that he had received Rs.30,000/- at the time of marriage of Kailash with the appellant. He says that the said money was paid by him to the former husband of the deceased, which he was required to pay at the time of divorce. According to him, Kailash was sent, for the first time, to the matrimonial home after six years CR.A/1904/2005 6/9 JUDGMENT of the marriage. Then he changed his version and says that she was so sent after two years. He says that, as per custom of the community, he was required to be paid Rs.122.50 ps., which were paid to him. He had not given anything. He admits that in the Raval community, the bride or her parents have not to give anything. He admits that during the wedlock, the deceased used to come to his house off and on but the appellant had come only once. He also admits that the other accused persons were staying separately from the appellant and the deceased. He admits that his daughter had never told him about sale of the camel cart. 6. Kantaben Shanabhai, mother of the deceased, is examined at Exhibit 15. She says that for the first two years marriage life of Kailash was happy. Thereafter, the appellant used to beat her. The deceased had come to her house about four months prior to the incident and asked for money saying that then they were not having the camel cart and, therefore, she paid her Rs.5000/-. The deceased then went to Himmatpur with the money and used the same to maintain the family. After the money was spent out, she again came for money saying that the appellant was beating her and was asking for money. At that stage, she was not paid money and was sent back to Himmatpur. She says that on learning about the incident, she went to Himmatpur and found the deceased lying on a cot. There were injuries on her chest and back. 6.1 The witness is cross-examined. She says that she had gone to Himmatpur about three months prior to the incident and had stayed there for four days and, at that time, the appellant was maintaining the house by plying a camel cart. She admits that her daughter, Kailash, has never gone to sell vegetables in a basket, which is common in their community. Only in financially happy family, the women folk would not engage in such work. She lastly CR.A/1904/2005 7/9 JUDGMENT admits that she never met the deceased after she came back from her daughter's house. 7. Laxmanbhai Ishwarbhai Raval is the third witness, who is examined at Exhibit 16. He says that on 26th January, 2005, he was at Meherwada. He received a phone call from the first informant, Shanabhai Punjabhai, informing that Kailashben had been done to death at Himmatpur and he should come immediately. He along with Somabhai Chhababhai, Ramanbhai Mangabhai, Babiben Vithalbhai, Prahladbhai Keshabhai, etc., therefore, went to Gambhoi, where wife of Shanabhai met them at Gambhoi Bus Stand and told them that Kailashben had been done to death. They, therefore, went to Gambhoi Police Station and informed police and Mamlatdar about the same. On going to Himmatpur, they found the dead body of Kailash in a cot. Her throat was strangulated. There were injuries on chest and back. A rope was hanging from the ceiling, which is muddamal article No.1. According to him, the Mamlatdar measured the height and found it not to be a case of suicide. 7.1 The witness has been cross-examined. The cross- examination spins around the status of the witness and he states that he is a graduate of 1974. He does not throw any light on the incident. 8. Witness, Prabhatbhai Laxmanbhai, is examined at Exhibit 19. He is a Panch witness and is a neighbour. During cross-examination, he has admitted that the appellant was staying happily with his wife-Kailash (deceased). 9. Witness, Anduji Pabjibha, P.S.I., Gambhoi, is examined CR.A/1904/2005 8/9 JUDGMENT at Exhibit 26. He admits about having registered an accidental death on the basis of information given by Sureshbhai Chhaganbhai Raval, the appellant. He says that he recorded the F.I.R. given by Shanabhai Punjabhai. He denies the suggestion that the accused is falsely implicated. 10. What emerges from the above evidence is that first informant, Shanabhai, is the only witness who claims that the marriage between the appellant and the deceased took place about two years prior to the incident, but no evidence in support thereof is produced. There is evidence to show that the deceased was sent to her in-laws' house, for the first time, after six years of marriage. This would negative his version that the marriage took place about two years prior to the incident. Although he speaks about demand of Rs.5000/- and payment thereof to Kailashben, he admits that Kailashben never told him about the sale of camel cart. As against this, if the deposition of Kantaben is seen, all that Kantaben states is that the deceased demanded Rs.5000/-, which she gave and the demand was on account of the shortage of money as there was no camel cart. It is not in evidence that this admission of Rs.5000/- was made at the behest of or at the instance of the appellant. It has come in evidence that the mother of the deceased had gone to the house of the deceased two-three months back and stayed with them for four days and, at that time, Suresh used to maintain the family by plying camel cart and Kailash never went to sell vegetables in a basket. The resultant outcome is that the evidence does not show that the demand was made by the appellant for the money nor is there any evidence to show harassment to the deceased by the appellant on that count or any other count. It has also come in evidence of Kantaben that after she came back from the house of the Kailash, she had no occasion to meet her. If Kantaben had gone to the house of Kailashben and if she found that the appellant was having a camel cart, which he was plying for maintaining the family CR.A/1904/2005 9/9 JUDGMENT and, if, thereafter, she has not met the deceased, it becomes a matter of doubt if Kailashben really had come to her and asked for monetary help and she paid Rs.5000/-. In our opinion, the evidence as to harassment and demand by the appellant is not beyond reasonable doubt. It is only the father and the mother of the deceased who say about demand and harassment by the appellant to the deceased. Prabhatbhai Laxmanbhai (Exhibit 19) has, in terms, stated that the appellant and the deceased were staying together happily. This witness is from Himmatpur and is Rabari by community, not connected in any manner with any of the parties. He, however, admits that the appellant had sold off his camel cart because of his inability to cope up with the competition of mechanical vehicles. In our view, therefore, the Trial Court erred in recording conviction of the appellant for the offences punishable under Sections 306 and 498-A of the I. P. C. and Sections 3 and 7 of the Dowry Prohibition Act. 11. For the foregoing reasons, the appeal is allowed. The conviction recorded by learned Additional Sessions Judge, 10th Fast Track Court, Himmatnagar, in Sessions Case No.32 of 2005, convicting the appellant for the offences punishable under Sections 498-A and 306 of I.P.C. and Sections 3 and 7 of the Dowry Prohibition Act is hereby set aside. The appellant is directed to be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt