IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 4 OF 2003 1) Vijay Nathalal Gohil ) Age 36 years, Residing at 22/24, ) Anant Wadi, Room No. 107, 5th ) Floor, Jivraj Shamji Building, ) Bhuleshwar, Mumbai. ) 2) Pankaj Nathalal Gohil ) Age 34 years, Occu: Embroidary ) Business, Residing at 91-J, Koliwada ) Road, 1st Floor, Room No.45, S. P. ) Marg, Phanaswadi, Mumbai – ) 400 002. ) 3) Mangalben Nathalal Gohil, ) Age 60 years, Occup: Housewife, ) Ground Floor, Kaver Cross No.2, ) Building No.85, Dadiseth Agyari ) Lane, Kalbadevi, Mumbai -400 002. ) (Yerwada Central Prison,Pune) )... ...Appellants. (Original Accused Nos.1 to 3) VERSUS State of Maharashtra ) (Inspector of Police, L. T. Marg Police ) Station.) )... ...Respondent. 1 Mr. A. M. Saraogi with Mr. S.K.Chaurasia for Appellant No.1. Mr. A.P. Mundargi with Mr. S.V.Marwadi for the Appellant Nos.2 and 3. Mr. P. S. Hingorani, APP for the State. CORAM : BILAL NAZKI and ANOOP V. MOHTA, JJ. RESERVED ON : 13TH JANUARY, 2009 PRONOUNCED ON : 21ST MARCH, 2009. J U D G E M E N T (Per Bilal Nazki, J.) : By the Judgment passed by the learned Additional Sessions Judge, Mumbai, in Sessions Case No. 334 of 1991 on 19th December, 2002, the appellants have been convicted under Section 498-A read with 34 of the Indian Penal Code and sentenced to suffer R.I. of 3 years and the fine of Rs.1,000/- each. In default they have to under go simple imprisonment for 1 month. Accused Nos.1 and 2 are also held guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment. Accused No.3 was acquitted of charges under Section 302 read with Section 34 of the Indian Penal Code. The Accused are also held guilty for the offence charged under Section 304-B read with Section 34 of the 2 Indian Penal Code and they have been sentenced to R.I. for 7 years. They are also fined Rs.3,000/- each and in default they have to undergo simple imprisonment for 3 months. 2. The facts on which the charges under Sections 302, 498-A and 304-B read with Section 34 of the Indian Penal Code were framed, were that one Ramagauri was married to accused No.1 in or about the year 1984. She was constantly ill-treated by all the accused persons. She had two children. Accused No.1 is the husband of the deceased. Accused No.2 is the brother of accused No.1 and accused No.3 is the mother of accused Nos.1 and 2. The prosecution contended that accused No.1 shifted to Kumbharwada in a separate residence. But accused Nos.2 and 3 used to go to that place also and quarrel with the deceased. Thereafter, accused No.1 left his wife at the house of her parent at Rajkot. She lived there for some time then accused No.1 brought her back and they started living in a room adjacent to the embroidery factory of the accused. On 21st May, 1990, accused No.1 went to the Police Station concerned and reported the death of his wife by consumption of poison. Statement of brother of the deceased was recorded on the same day. Inquest panchanama was drawn. Accused No.1 also gave a bottle of poison in 3 the presence of panchas. Accused is alleged to have said that Ramagauri drank poison from the said bottle. Investigation started and FIR was registered. Autopsy was done. Evidence was completed and on completion of investigation the charge sheet was filed. On the basis of these allegations the charges were framed as mentioned hereinabove. The accused pleaded not guilty and claimed to be tried. 3. The prosecution examined 9 witnesses. There is no eye witness and the prosecution tried to establish the case on the basis of circumstantial evidence. Learned Counsel for the appellants submits that at the best it has been a case of suicide and neither it was a case of murder nor it was a case of dowry death. 4. PW 1 – Smt. Jayaben Maganlal Parmar, is the mother of the deceased. She stated that her husband was dead. She had 3 sons and 3 daughters. Her daughter Ramagauri (deceased) was married with Vijay (accused No.1). The marriage had taken place at Rajkot and the deceased had come to stay with her husband, accused No.1. She identified all the accused and stated that her daughter (deceased) was staying with all the accused in Mumbai. They had also given dowry as per custom. All the accused were 4 harassing deceased. Accused were telling her that nothing had been given to them in the marriage. Father-in-law of the deceased was a good person. Till he was alive, the accused did not harass the deceased. But after his death all the accused started harassing the deceased. Ramagauri was married 17 years back from the date she deposed in the Court (23rd October, 2001). Father-in- law of the deceased had died in the year 1987. She further stated that Ramagauri’s mother-in-law and brother-in-law were beating her. Her brother- in-law had caught hold of her neck and a police complaint was lodged to that effect. Vijay, her husband had left her in the house of the witness at Rajkot. Deceased had stayed in the house of witness for 2 months. Her 2 sons were staying in Mumbai and deceased used to tell them every thing about the affairs of her family. Deceased had told them that accused were harassing her. Deceased was ready to come to Mumbai. She had given her train fare of Rs.800/- to Rs.900/- for coming to Mumbai. However, she did not use to tell her many things. She further stated that deceased was murdered by the accused. Her 2 sons who were in Mumbai had informed her about it. Ramagauri’s daughter was 2½ years old and her son was 3 years old at the time of her death. She had come to Mumbai after receiving message of death 5 of Ramagauri. The witness had come to Mumbai 11 years back, at the time of Ramagauri’s death. She did not remember whether the Police recorded her statement. In cross-examination, she stated that accused had not demanded any dowry at the time of marriage. However, what was required to be given in the marriage as per customs was given. She accepted that Ramagauri was her step-daughter. Kantibhai and Hansa were Ramagauri’s real brother and sister respectively. The deceased had come to her house but she could not say how many times. She stated that it was true that after the death of father-in-law of the deceased, deceased and her husband were staying separately. She did not know whether the deceased had sent any letter to them informing about demand of dowry by the accused. Her son Kantibhai had lodged police complaint about harassment to the deceased by the accused. She denied that the deceased was not in talking terms with the witness. She did not also know the reason why accused No.1 had left the deceased at her house. She admitted that the daughter of the deceased was staying with the deceased when she was with the witness at Rajkot and their son was staying with accused No.1. She denied that accused No.1 had informed her that Ramagauri had fallen in love with other boy and that the witness should persuade her not to do so. She 6 did not know whether it had appeared in the newspaper that Ramagauri had committed suicide. She denied that accused No.1 had sent her telegram informing her about Ramagauri’s death. She had received telegram from her son. She denied that she had not come for last rites of Ramagauri. She also denied that she came only to Mumbai when she was called by the Police. She had seen the dead body of Ramagauri, her fist were clenched. The police had recorded the statement of the husband of the witness. Her statement might have been recorded by the Police but she did not remember. 5. Learned Counsel for the appellants has pointed out that this witness was categoric in saying that the accused had not made any demand for dowry at the time of marriage but whatever had given was given as per the customs. Learned Counsel for the appellants further pointed out that this witness has also in her statement stated that at the time of occurrence accused No.1 and the deceased were staying separately. She has also admitted, according to the learned Counsel, that she had no personal knowledge of any harassment on account of dowry after the marriage. 6. PW 2 – Kantilal Maganlal Parmar, is the brother of the deceased and son of PW 1. He stated that the incident took place on 21st May, 1990 and 7 it was a Monday. After their marriage, the deceased started staying in her marital house along with all the accused i.e. her husband, her brother-in-law, her mother-in-law, and 4 unmarried sisters. Accused No.2 was brother of accused No.1 and accused No.3 was mother-in-law of the deceased and mother of accused Nos.1 and 2. Initially the deceased was staying at Bhuleswar. After her marriage for 6 months to one year everything was well with Ramagauri. Thereafter the accused and her sisters-in-law started beating her and were quarrelling with her. Her father-in-law used to intervene in their quarrels and make them quiet. On almost alternate days they used to quarrel and they used to tell her that they had spent Rs.50,000/- on the marriage. He stated that whatever he said about the harassment to the deceased was told to him by the deceased. Ramagauri had two children, one son and one daughter. Ramagauri had also told him that her family members were harassing her daily and hence she had beaten her daughter. There was quarrel between Ramagauri and her mother-in-law and hence she had beaten children. Thereafter, her brother-in-law, accused No.2 had slapped her in presence of her husband but her husband had not intervened and he was a silent spectator. Geetaben Chauhan, who is witness’s wife’s sister was staying near 8 the house of the accused. She sent a message to him at Borivali about the said incident. On the next day he went to the house of the accused and asked Ramagauri as to what had happened. She said that there was forcible quarrel and she had beaten her children and her brother-in-law had slapped her. The witness asked brother-in-law as to what right he had to slap the deceased. He also asked accused No.1 as to why he was not able to manage his household affairs. He persuaded his sister to forget about the quarrels. He also advised Ramagauri not to reply to her mother-in-law anytime and if there were quarrels she should tell her husband about it and if they do not do anything she should come to him and tell him about the matter. In the year 1987, father-in-law of the deceased died and the incident about which he deposed had happened after the death of the father-in-law of the deceased. Thereafter, no big quarrel took place. Deceased came to his house. She told him that she was being harassed. But witness told her to go to her marital house telling her that he would come to her house. He called some of his relatives as also the relatives of the accused in the house of the accused. Relatives of both sides persuaded all the family members that they should not quarrel and all the family members gave an assurance that there will not be 9 any quarrel in future. Thereafter, her husband took separate room in Kumbharwada, 4th Lane and started staying with his wife and children. But accused Nos.2 and 3 went there also and quarreled with the deceased. Deceased’s brother-in-law attempted to kill her by pressing her throat and by beating her. He came to know about the incident from his relative by name Prabhudas. He also informed him that in order to save herself, Ramagauri had left the house and had gone to V.P. Road Police Station and lodged the complaint. One Hasmukh, brother of Prabhudas, who is relative of both sides had persuaded Ramagauri to take back the complaint saying that it was not good for the well being of their house and community. Due to this incident, accused No.1 left deceased in their parents house at native place. He came to know about it from Prabhudas. Then he sent a letter to his father. But before his father received his letter, Ramagauri came to Mumbai after staying for 1 to 1 ½ months there. Thereafter, the deceased and her husband started staying at Dadyseth Agyari Lane, where there was a factory of the accused. On 21st May, 1990 at about 4.30 or 5 a.m. sister of the accused staying at Dahisar came to his house and informed him that Ramagauri was dead. He called his relatives from Borivali. He came to Kumbharwada along with his relatives. 10 Took some relatives of Kumbharwada and went to the separate house of his sister situated in the factory. He saw dead body of his sister. He found there were marks of piercing the nails on both sides of her chick and throat and also the marks of injuries on both her wrists and marks of bangle glasses in both her wrists. Mother-in-law and sister-in-law of the deceased were in the house. Neither her husband nor her brother-in-law were present in the house. He made inquiries about both of them and learnt that they had gone to L. T. Marg Police Station. He went to L. T. Marg Police Station and found that both of them were not present at the Police Station. He was told that the Police Officer had gone to their house along with Vijay. He returned back to the house of the accused and there he found the Police Officer making panchanama. When the body of the deceased was turned he found that there were marks of injury on her back. After seeing all the injuries, he felt that his sister had not committed suicide but she had been killed by the accused. Despite objections of the Police Officer, he took the photographs of the dead body of his sister. He made call to his parents. On the next day parents came to Mumbai. Police recorded his statement in the Police Station on 21st May, 1990. He had taken his parents to J. J. Hospital to show the dead body. 11 Thereafter, he took them to Police Station on 23rd May, 1990. His parents were not ready to lodge complaint as they were staying at the native place and they did not know the language other than Gujarati and they advised the witness to take all the responsibility of the accused. Police recorded statement of his parents. After the post mortem, body was claimed and last rites were performed. Accused had not informed him about the death of his sister immediately. His sister had died in the afternoon on 20th May, 1990. At about 10.00 to 11.00 p.m., Pankaj, brother-in-law of the deceased went to the house of a relative by name Bharatkumar Kanjibhai Parmar and informed him about the death of his sister. Bharatkumar went to the house of the accused and saw the body of his sister. He was told by the family that 3 persons were sent in a taxi to give him message. Bharatkumar was waiting for the witness in his house. Again at 5.00 a.m. Pankaj went to the house of Bharatkumar and told him that the body was taken up for funeral. His relations objected and said that until her brother i.e. witness do not come, they would not allow the dead body to be taken for the funeral. Due to this conduct of the accused, he was of the view that his sister, Ramagauri was killed by the accused. The accused had not taken his sister to any doctor nor given any treatment, nor informed the 12 police about the incident and had managed to manipulate the incident by paying money to the police. 7. In cross-examination he stated that in the year 1990 he was working in Embroidery Shop. Now he was running a club near his house. He denied that in his club gambling or any ill-legal drinking takes place. He also denied that the Police used to frequently arrest him. He denied that on 20th May, 1990 he was not at his home and he returned to his home only on 21st May, 1990 in the morning. He did not remember the name of the sister of the accused, who had come to his house on 21st morning to inform about the death of his sister. His police statement was read over to him after it was recorded. The Police wrote part of his statement correctly and whatever he told to the police it was not written in the statement entirely. However, what was recorded was actually told by him to the Police. He did not file any complaint against the concerned police officer for not recording his statement as per narration. He admitted that when he reached the house of the deceased at 6.30 to 7.00 a.m. there was a crowd in the house as many relatives had already come. He denied that the persons present there had informed him that the deceased had committed suicide. On the contrary the persons gathered 13 there were saying that the deceased had been killed by her in-laws and her husband. There is no question of committing suicide by his sister as was evident from the marks of injury on her person. He had not said to the police that his sister had committed suicide. However, he can not give any reason as to why this was not recorded in his police statement. He denied having said so to the police. He had also stated to the police that the deceased had sustained bangle piece piercing injuries on both her wrists. He could not assign any reason why it was not recorded by the police. Police had also told him to bring witness to make the case strong. He had also asked the neighbours, whether they had seen the incident, but he felt that it was not his job. He did not tell the police that Bharatkumar Parmar was a witness and his statement should be recorded. After his statement was recorded, he came to know from Bharatkumar, whatever he had told him about the happenings after the death of his sister and hence he could not tell his name to the police. He had gone to the police station 2/3 times after his statement was recorded. He had gone to the police station with his parents. At that time he did not tell the police to record the statement of Bharatkumar. He denied the suggestion that his evidence regarding his conversation with Bharatkumar was false. He denied 14 that during lifetime of his sister's father-in-law there was no quarrels. There used to be quarrels, but father-in-law used to intervene and stop them. However, he accepted that till the father-in-law of the deceased was alive, his sister did not use to call him often. It is accepted by him that after the death of father-in-law of the deceased, his sister and her husband went to stay at Kumbharwada. He used to go to the house of his sister and she also used to come to his house with her husband. He also accepted that her husband used to talk to him very nicely. He denied that he had taken loan of Rs.10,000/- from accused No.1. He was shown a piece of paper. He accepted that the paper was in the hand writing of the witness. It was in Gujarati script and read as, “I had taken Rs.10,000/- from Vijay”. The said paper also bears his signature. It was taken on record and marked Exhibit “A”. He had a vacant hut at Borivali, Carter Road No.5, Near High Way. It was vacant and he had sold it to accused No.1 so that he could use it for his separate stay with the deceased instead of taking any other room on rent. He had told the accused to give money as he think proper for using the hut. Therefore, accused No.1 had given him Rs.10,000/- after locking the hut and taking in writing from him about receiving of the money. He had no documentary evidence to show that 15 the hut was in his name. It was a kachha hut with iron sheets. He had renovated it by spending Rs.7,000/- to Rs.8,000/- on it. His sister and her husband used to go there once in 10 to 15 days and used to go back. It was not correct to suggest that the evidence was false. It was not correct to suggest that he had taken loan from accused No.1 and therefore he had given receipt in writing. It was true that accused had an embroidery business place at Dadysheth Agyari Lane at Chira Bazar. Daughter of his sister was 2 & ½ years old at the time of occurrence. He did not state before the police that his sister had told him that there was quarrel between her and her mother-in-law and she had beaten the children. He did not state before the police that in the year 1988 the deceased had assaulted her daughter and hence her family members had quarrel with her and at that time Pankaj had slapped her. He could not give any reason as to why it was not recorded by the police in his statement. He denied that such an incident had never occurred. There are further omissions which are pointed out in the cross examination and the reasons given by the witness is that he did not know why police had not recorded such thing in his statement. He did not himself record any complaint any time during the lifetime of her sister against her husband. He did not know 16 whether police had called his sister in V. P. Road Police Station and warned her to behave properly. Accused No.1 had left the deceased at native place due to the quarrels. He came to know about it from Prabhudas. He was not told by anybody that some affair was going on between the deceased and her neighbour and therefore her husband had left her to the native place of his parents. He did not know whether for this reason the police had called her to the police station and had warned her to behave properly. He did not know the handwriting of the deceased. His sister did not contact him and did not write him any letter when she stayed with parents at native place. He accepted that PW 1 was his step-mother. He did not know if the relations between the deceased and PW 1 were not cordial. If he is shown one letter and asked whether it was written by his sister, he could not identify her handwriting, because he did not stay at the native place more and he came to Mumbai when he was 10 years old. He said that it was true that before the marriage of the deceased, he was not that close to her. However, he stated that it was not correct to suggest that after her marriage she did not use to go to his house. She used to come to his house on festival days and whenever the witness used to call her. When his sister came back from the native place, 17 Accused had already vacated the separate room and started staying in factory room. He denied a suggestion that there was some affair between his sister and one boy and hence her husband had vacated the room. There might have been