CR.A/916/2006 1/71 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 916 of 2006 With CRIMINAL REVISION APPLICATION No. 364 of 2006 (Suo Motu) With CRIMINAL APPEAL No. 1640 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= SUBHASHBHAI CHANDUBHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance: Criminal Appeal No.916 of 2006 Mr. YV Brahmbhatt for the appellant Mr. RC Kodekar for the respondent – State of Gujarat Criminal Revision Application No. 364 of 2006 (Suo-Motu revision application) Mr. RC Kodekar APP for State Mr. YV Brahmbhatt for the accused CR.A/916/2006 2/71 JUDGMENT Criminal Appeal No. 1640 of 2006 Mr. RC Kodekar, APP for appellant – State of Gujarat Mr. YV Brahmbhatt, for respondent – Org. Accused No.1. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 21/09/2006 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Appellant ('the accused' for short) and another accused, Sajanben Mohanbhai Gohil, were charged and tried by the learned Additional Sessions Judge and 4th Fast Track Court, Nadiad, in Sessions Case No. 207 of 2002 for commission of the offences punishable under Sections 498-A and 306 of the Indian Penal Code ('IPC' for short) on the accusation that they inflicted mental and physical cruelty to deceased Nitaben and abetted her to commit suicide. At the end of the trial, as the accused was found guilty of the offences with which he was charged, he was convicted vide judgment and order dated 19.4.2006 CR.A/916/2006 3/71 JUDGMENT for commission of the offences punishable under Sections 498-A and 306 of the IPC and sentenced him to suffer RI for two years and fine of Rs.2,000/- i.d., RI for two months for commission of the offence punishable under Section 498-A of the IPC and RI for three years and fine of Rs.3,000/- i.d., RI for three months for commission of the offence punishable under Section 306 of the IPC. It is also ordered that both the sentences shall run concurrently whereas another accused, Sajanben Mohanbhai Gohil, was acquitted by giving benefit of doubt. 2. The accused, aggrieved by the judgment and order of conviction and sentence, has filed Criminal Appeal No. 916 of 2006 with the aid of Section 374 of the Code of Criminal Procedure, 1973 ('the Code' for short). 3. The appeal was placed for admission hearing before a learned Single Judge of this Court (during summer vacation). The learned Single Judge, vide order dated 18.5.2006, admitted the CR.A/916/2006 4/71 JUDGMENT appeal. However, the learned single Judge has observed that on perusal of the judgment rendered by the learned Judge and taking into account the entire gamut of evidence and the fact that reasons are not assigned for imposing less sentence under Section 306 of IPC, Suo Motu notice for enhancement of sentence be issued under Section 377 of the Code making it returnable on 14.6.2006. The Registry has, therefore, numbered the suo-motu proceedings as Criminal Revision Application No. 364 of 2006. 4. The State of Gujarat has also, aggrieved by the judgment and order passed by the trial court, filed Criminal Appeal No.1640 of 2006 with the aid of Section 377 of the Code, on the ground of inadequacy of the sentence imposed on the accused. 5. As all the above numbered proceedings are arising out of the same judgment and order, they are heard together, decided and are being disposed of by this common judgment. CR.A/916/2006 5/71 JUDGMENT 6. The prosecution case, as disclosed from the accidental death report and the complaint filed by the complainant, P.W.2, Sureshbhai Chhotabhai Patel, Ex.20, who is the cousin brother of deceased Nitaben and unfolded during the trial is as under: 6.1.On 1.8.2001, deceased Nitaben, wife of the accused, was shifted to Kheda Civil Hospital by the accused and relatives as she had taken some poisonous substance and was vomiting. She was treated by the doctor and Kheda Police was informed by the Medical Officer on telephone and a telephone-vardhi was registered by Matar Police at about 00.55 hours on 2.8.2001. Matar Police was also informed by the complainant Sureshbhai that by any reason Nitaben had taken poisonous substance at her home and she was admitted in Kheda Civil Hospital and ultimately she died. The span of marriage life was more than 11 years and it was her second marriage and the incident took place at her parental house. Upon this CR.A/916/2006 6/71 JUDGMENT information, an accidental death entry was made vide Entry No.25/2001 on 2.8.2001 at about 2.15 hours. Pursuant to this entry, the Head Constable started an inquiry. Dead body of Nitaben was sent to Civil Hospital, Kheda for autopsy, recorded the statements of complainant Sureshbhai and other witnesses and also informed higher officer. During his investigation, no offence was disclosed by anyone. 6.2.Thereafter on 23.8.2001, after 23 days, Sureshbhai Chhotabhai Patel, who is the cousin brother of deceased Nitaben, lodged a written complaint before the learned JMFC, Matar, against the accused and Sajanben Mohanbhai Gohil, for commission of the offences punishable under Sections 302 and 120-B of the IPC, inter alia, alleging that his cousin sister was married with the accused and after death of his uncle and aunt, Nitaben and the accused were staying at parental home at village Sokhda. The accused had illicit relations with another accused- Sajanben Mohanbhai Gohil and the accused wanted to sell CR.A/916/2006 7/71 JUDGMENT out all properties of deceased Nitaben and settle separately with Sajanben. Sajanben used to come frequently at the residence of the accused and accused was keeping Sajanben with him and due to this illicit relation, the accused was harassing and also beating Nitaben. The complainant was informed by his niece Minakshi that deceased Nitaben was taken on the first floor of the house and her hands were caught-hold by Sajanben and the accused forcibly gave medicine (poison) and thus the accused killed Nitaben. 6.3.The said complaint was ordered to be investigated by the concerned Deputy Superintendent of Police under Section 156 (3) of the Code. Pursuant to the said order passed by the learned JMFC, Matar, investigation was carried out by the DySP and report dated 4.10.2001, Ex.43, was sent to the learned JMFC, Matar for deletion of offences under sections 302 and 120-B of the IPC and for adding Sections 498- A, 306 and 114 of the IPC. Thereafter by the CR.A/916/2006 8/71 JUDGMENT order of this Court, the order of investigation under Section 156 (3) of the Code conducted by the DySP was quashed and set aside. Thereafter further investigation was carried out by the PSI, Matar. On completion of the investigation, a charge-sheet was filed in the court of the learned Chief Judicial Magistrate, Nadiad, against the accused and another accused, Sajanben Mohanbhai Gohil, for commission of the offences punishable under Sections 498-A, 306 and 114 of the IPC. 6.4.As the offence punishable under Section 306 of the IPC is exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Nadiad, committed the case to the Court of Sessions Division at Nadiad. 6.5. The learned Additional Sessions Judge, 4th Fast Track Court, Nadiad, to whom the case was made over for trial, framed charge against the accused and another accused, Sajanben Mohanbhai Gohil. Both of them pleaded not guilty to the CR.A/916/2006 9/71 JUDGMENT charge and claimed to be tried. Thereupon they were put to trial and tried by the learned Additional Sessions Judge and 4th Fast Track Court, Nadiad, in Sessions Case No.207 of 2002. 6.6.To prove the culpability of the accused, the prosecution has examined as many as 13 witnesses and relied upon their oral testimony, details of which have been given in paragraph 4 of the impugned judgment and order. They are as under: PW No. Name Ex.No. Page No. 1 Dr. Chakreshwar Bhagwatilal 13 117 2 Sureshbhai Chhotabhai Patel – Complainant 20 145 3 Minakshiben Subhashbhai Patel – daughter of accused 21 153 4 Jigar Subhashbhai Patel – daughter of accused 22 159 5 Dipakkumar Sulemanbhai Christi 24 169 6 Kokilaben Dipakbhai 28 183 7 Manjulaben Kantibhai 30 199 8 Bhavinkumar Kanubhai Patel 32 213 9 Rameshbhai Shankarlal Sharma 35 227 10 Chandrikaben Bachubhai – Panch witness 36 233 11 Maiyuddinbhai Saburkhan – PSO who registered the FIR 39 257 CR.A/916/2006 10/71 JUDGMENT PW No. Name Ex.No. Page No. 12 Parixita Maneklal Gurjar – Investigating Officer 40 261 13 Rajeshkumar Ramjibhai Limbad – PSI – Investigating Officer 48 305 6.7.The prosecution has produced a number of documents and relied upon the contents of the same. They are as under: S.No Description Ex.No. Page No. 1 Complaint 41 281 2 Inquest Panchnama 37 237 3 Panchnama of the scene of offences 34 223 4 Death Certificate issued by General Hospital, Kheda 42 289 5 Post-mortem report 17 133 6 FSL letter 51 317 7 FSL report 16 129- 131 6.8.After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code. In their CR.A/916/2006 11/71 JUDGMENT further statement the accused denied the case of the prosecution in toto. The accused has filed detailed written statement which is on record at page 351 of the paper book. The accused has also examined three witnesses in his defence. They are as under: DW.No. Name Ex.No Page No. 1 Babusinh Pujesinh Parmar, Medical Officer who gave treatment to deceased Nitaben on 31.7.2001 and also issued certificate 62 403 2 Natvarbhai Becharbhai Patel, Power of Attorney holder 65 411 3 Natvarbhai Malabhai – Investigating Officer of A.D.Case No.25 of 2001 67 425 6.9.On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court has held that suicidal death of deceased Nitaben has been established. The trial court has also held that the accused has inflicted mental and physical cruelty to deceased Nitaben on account of his illicit relation with another accused Sajanben and, therefore, the accused has CR.A/916/2006 12/71 JUDGMENT abetted Nitaben to commit suicide and as a result of the abetment Nitaben took poisonous substance and during treatment she succumbed to the effect of the poisonous substance. The trial court, therefore, held that the offences punishable under sections 498-A and 306 of the IPC against the accused has been proved and accordingly he has been convicted and sentenced for the said offences about which reference is made in the earlier paragraph of this judgment whereas another accused, Sajanben Mohanbhai Gohil, came to be acquitted by giving benefit of doubt. It is this judgment and order which has given rise to the above-numbered three separate proceedings. 7. Mr. YV Brahmbhatt, learned advocate of the accused, has submitted that there is no evidence regarding cruelty meted out by the accused to deceased Nitaben and due to the cruelty at the hands of the accused Nitaben committed suicide. It is also emphatically submitted by him that it is also doubtful as to whether it is a case of CR.A/916/2006 13/71 JUDGMENT accidental death or whether due to abdominal pain the deceased had taken poisonous substance or whether someone has given her poisonous substance as there is evidence that the food and tablet was given by Lalitaba as per evidence of P.W.3 and P.W.4. It is also submitted by him that there is no evidence regarding recovery of FSL muddamal from Civil Hospital, where it was kept, who had sent it and when it was sent. According to him, there are three different information with regard to the incident. First information was a yadi regarding taking of poisonous substance by deceased Nitaben for any reason wherein it is stated that the marriage span of the accused with deceased Nitaben was 11 years as is clear from Ex.46, 47 at page 299. The second information is Ex.47, a statement before the police by the complainant that for unknown reason and due to her mental and physical illness she took poisonous drug and no suspicion for her death was raised against anybody and there was no mention about any quarrel or dispute. The third information is a written complaint before the CR.A/916/2006 14/71 JUDGMENT learned JMFC, Matar, Ex.41, for offences punishable under sections 302 and 120-B of the IPC after 23 days of the incident. According to Mr. Brahmbhatt, learned advocate of the accused, though the written complaint of the complainant Sureshbhai is not proved as original complaint is not shown to the complainant and no signature is proved, it has been wrongly exhibited. It is also high-lighted by him that a Power of Attorney was obtained by the complainant on the very day of the incident from the accused with a view to grab the properties of the accused and the deceased. D.W.2, Natvarbhai Becharbhai Patel, Ex.65 who is also a joint power of attorney holder of the accused, along with the complainant, has deposed that the properties of the accused and deceased Nitaben are personally used by the complainant and there is evidence of P.W.3 and P.W.4, Minakshiben Subhashbhai Patel and Jigar Subhashbhai Patel, Ex. 21 at page 153 and Ex.22 at page 159 respectively, who are the children of the accused, who have stated that the complainant has not given any help or CR.A/916/2006 15/71 JUDGMENT assistance to the minor children of the deceased Nitaben and the accused. According to him, child witnesses are important witnesses and as per the prosecution version and they have deposed that they have not told to the complainant that the hands of the deceased were caught hold by Sajanben and poison was forcibly given by the accused to deceased Nitaben. The child witnesses have also deposed that they were tutored by the complainant as to how the statement before the police be given and their depositions are totally different from the deposition of the complainant. They have deposed that for grabbing property of the accused and deceased Nitaben, a false and concocted case is got up by the complainant. It is also emphasized by him that the statements of other prosecution witnesses are recorded after 40 days. They are very interested witnesses and their entire depositions are contradictory. P.W.5- Dipakbhai Christi, joined the hands with the complainant and they got the accused wrongly booked in a false case. He has also high-lighted about the conduct of the accused. According to CR.A/916/2006 16/71 JUDGMENT him, as per the evidence on record, Nitaben was taken to Karoli Sarvajanik Hospital on 31.7.2001 by the accused, she was treated by the doctor, thereafter she was also taken to Civil Hospital, Kheda, on 1.8.2001 she was taken to Nadiad Civil Hospital and as per the advice of the doctors, she was taken for UCG test and at the time of incident, she was also shifted to Kheda Civil Hospital by the complainant. It is also contended by him that the trial court has wrongly disbelieved the evidence of the defence witnesses. Earlier also Nitaben had tried to commit suicide as she was suffering from abdominal pain. On the aforesaid premises, it is contended by Mr. Brahmbhatt, learned advocate of the accused, that though there is no case against the accused for commission of the offences punishable under sections 498-A or 306 of the IPC, the trial court has wrongly believed the evidence of the prosecution witnesses and convicted the accused and, therefore, the CR.A/916/2006 17/71 JUDGMENT impugned judgment and order convicting and sentencing the accused deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offences with which he was charged. He, therefore, urged to allow Criminal Appeal No.916 of 2006. It is also submitted by him that there is no substance in the suo motu Criminal Revision Application No. 364 of 2006 as well as in the Criminal Appeal No.1640 of 2006 filed by the State under Section 377 of the Code for enhancement of the sentence and, therefore, the Criminal Revision Application No. 364 of 2006 and Criminal Appeal No. 1640 of 2006 filed by the State of Gujarat deserve to be dismissed. He, therefore, urged to dismiss the Criminal Revision Application No.364 of 2006 and Criminal Appeal No.1640 of 2006. 8. In counter submission, Mr. RC Kodekar, learned APP for the respondent -State of Gujarat, has contended that there is voluminous evidence CR.A/916/2006 18/71 JUDGMENT adduced by the prosecution which unerringly establishes that the deceased was subjected to mental and physical cruelty at the hands of the accused and the accused has also abetted her to commit suicide because of his illicit relation with Sajanben. He has further contended that evidence of P.W. Nos.2, 5, 6, 7, 8 and 9 is clear and there is no contradiction in their evidence, therefore, there is no reason to disbelieve the evidence of those witnesses who have deposed against the accused that the accused had inflicted mental and physical cruelty on the deceased and the accused has abetted her to commit suicide on account of his illicit relation with Sajanben. Therefore, according to him, the judgment and order of conviction passed by the trial court convicting the accused of the offences punishable under Sections 498-A and 306 of the IPC does not warrant any interference of this Court as the complicity of the accused is established. So far as the sentence is concerned, according to him, there was no mitigating circumstance which has persuaded the CR.A/916/2006 19/71 JUDGMENT trial court to impose lesser sentence on him. According to him, the trial court ought to have imposed the maximum sentence provided under the IPC on the accused as such offences are on increase now-a-days. He, therefore, contended that Criminal Appeal No.916 of 2006 filed by the accused challenging the conviction and sentence imposed on him lacks merit and deserves to be dismissed whereas Criminal Appeal No.1640 of 2006 filed by the State of Gujarat for enhancement of the sentence deserves to be allowed by enhancing the sentence to the maximum punishment provided under section 306 of the IPC which according to him, is RI for ten years and in that view of the matter, the Suo Motu Criminal Revision Application No. 364 of 2006 also requires to be allowed. He, therefore, urged to dismiss Criminal Appeal No.916 of 2006 filed by the accused and to allow Criminal Appeal No.1640 of 2006 and suo motu Criminal Revision Application No. 364 of 2006. 9. We have considered the submissions advanced CR.A/916/2006 20/71 JUDGMENT by Mr. YV Brahmbhatt, learned advocate of the accused and Mr. RC Kodekar, learned APP for the respondent - State of Gujarat. We have also perused the impugned judgment and order. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 10. On reappreciation, reanalysis, reevaluation and close scrutiny of the evidence, now we may discuss the salient features of the prosecution case and the undisputed facts which have come on record in the form of evidence: (i) The accused married with Nitaben on 15.6.1990. (ii)Father-in-law of the accused, named Ambalal, died on 1.4.1993 and mother-in-law of the accused, Kashiben, died on 23.3.2000. CR.A/916/2006 21/71 JUDGMENT (iii)Out of the wedlock of the accused and Nitaben, two children, Minakshi and Jigar are born. Minakshi was aged about 10 years and Jigar was aged about 7 years at the time of the incident. All the family members were residing at village Karoli, Taluka Petlad and after death of mother-in-law of the accused, they shifted to village Sokhda. (iv)Nitaben was suffering from abdominal pain and previously she was operated for appendicitis and there is also deposition regarding the same by the complainant. Thereafter also on many occasions she suffered from abdominal pain. On 31.7.2000 she was taken to Karoli Sarvajanik Hospital as per suggestion of deceased Nitaben and she was treated by Dr. Babusinh, D.W.1, and certificate was also issued by him. Thereafter in the evening she was taken to Kheda Civil Hospital and Case No.6629/7 was given and she was treated. Thereafter on the next day she was taken to Civil Hospital, Nadiad and she was checked up by Dr. Nanavati and she was suggested for UCG test CR.A/916/2006 22/71 JUDGMENT and for that purpose she was taken in Santram Temple but she was advised to come on next day without taking food. (v) The accused was called at about 9.30 p.m. on 1.8.2001 by his daughter as Nitaben was serious . Before the complainant and other neighbours were called, food and tablets were given by Lalitaba, mother of the complainant, and thereafter Nitaben vomitted and, therefore, she was shifted to Civil Hospital, Kheda by the accused and during the treatment she died. (vi)Telephonic vardhi was given to Matar Police by the Kheda Town Police and Matar Police was also informed by the complainant and information was recorded vide A.D.No.25/2001, Ex.46, page 299 of paper book. Thereafter the police started investigation and statement of the complainant was recorded vide Ex.47, page 301 of the paper book. (vii) Panchnama of the scene of offence was CR.A/916/2006 23/71 JUDGMENT prepared on 2.8.2001 between 9.30 A.M. and 10.00 A.M. Ex.34, page 223 of the paper book. Inquest Panchnama was also prepared on 2.8.2001 vide Ex.37, page 237 of the paper book. (viii) Power of attorney was prepared on 2.8.2001 by the complainant in respect of all the properties of the deceased Nitaben and it was notarized before the Notary vide Ex.66, page 415 of the paper book. (ix)Post-mortem was performed on 2.8.2001 by Dr. Chakreshwar, Ex.17, page 133 of the paper book. (x) Complaint under Section 302 and 120-B of IPC was filed before the learned JMFC, Matar on 23.8.2001, after 23 days of the incident, and it was ordered to be investigated by DySP under Section 156 (3) of the Code, page 281 of the paper book. (xi)Statements of the witnesses were recorded on 10.9.2001, i.e., after 40 days of the incident. CR.A/916/2006 24/71 JUDGMENT 11. In aforesaid backdrop of the undisputed fact situation, we will have to examine whether the prosecution has successfully established the charge levelled against the accused for commission of the offences alleged against him and also to find out whether the trial court has rightly appreciated the evidence in its proper perspective and rightly recorded the finding that the complicity of the accused of the offences with which he was charged has been proved. 12. So far as death of Nitaben is concerned, to prove it, the prosecution has examined P.W.1, Dr. Chakreshwar, Ex.13, page 117 of the paper book, who has, inter alia, testified that on 2.8.2001 he was on duty in causality Department of Civil Hospital, Kheda. On that day, at about 1 O' clock at night, with the yadi of police and inquest panchnama and death form, dead body of Nitaben was brought to the hospital for performing autopsy. He performed autopsy and prepared the report which is at Ex.17. According to this CR.A/916/2006 25/71 JUDGMENT report, the cause of death of deceased was due to cardio respiratory arrest. It was mentioned in this report that the final cause will be given after chemical examination of viscera which was sent to Forensic Science Laboratory, Ahmedabad. FSL report is at Ex. 16. In the said report it has been stated that in the viscera aluminum phosphate, a poisonous substance was found and according to him, Aluminum Phosphate is being used for killing mouse and on