CR.A/334/2006 1/43 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 334 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 ? ========================================= TEJUMAL DAYALDAS MULANI (SINDHI) Versus STATE OF GUJARAT ========================================= Appearance : MR SAMIR J DAVE for Appellant MR AJ DESAI APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/02/2008 CAV JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/334/2006 2/43 JUDGMENT 1 Instant Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure against the judgment and order rendered by Additional Sessions Judge, Court No. 16, Ahmedabad City, on 19th of January, 2006, in Sessions Case No. 144 of 2002 against his conviction and sentence. Including present appellant, in the said Sessions Case, in all there were three accused and accused Nos. 2 and 3 came to be acquitted by the Trial Court for all the charges levelled against them, while present appellant - accused No.1 came to be convicted by the Trial Court for the offences punishable under Sections 304-B, 306 and 498-A of the Indian Penal Code. Appellant was sentenced to undergo rigorous imprisonment of 8 years for the offence proved against him under Section 304-B of the Indian Penal Code; rigorous imprisonment of five years and to pay fine of Rs. 5,000/-, in default to undergo simple imprisonment of one year for the offence proved against him under Section 306 of the Indian Penal Code and rigorous imprisonment of two years and to pay fine of Rs. 2,000, in default to undergo simple imprisonment of six months for the offence proved against him under Section 498-A of the Indian Penal Code. Though all the accused including the present appellant was charged for the offences punishable under Sections 3 and 7 of the Dowry Prohibition Act, but no separate sentence was awarded by the Trial Court to the appellant in this respect. CR.A/334/2006 3/43 JUDGMENT 2 It is the case of the prosecution that victim of the incident Shaluben had married to the present appellant in the year 1999. Other two accused, who are acquitted by the trial court, were elder brothers of the appellant. Shaluben was residing with her husband at Sardarnagar Block No. 268-A at Ahmedabad. On 3rd of August, 2000, according to the prosecution case, while she was preparing tea, caught fire and died on 4th of August, 2000 at Civil Hospital, Ahmedabad. Police had recorded Accidental Death, bearing No. 36 of 2000 and the matter was inquired into. On the day of the incident, appellant No.1 informed Devandas Bachwani, father of the deceased that deceased had suffered some injuries in her leg. When Devandas Bachwani reached at the residence of the deceased, he found that, his other daughters and appellant No.1 were taking the deceased to hospital in rickshaw and deceased was in very serious condition. His son was also with him. His daughter was not able to speak. He narrated the history before the Doctor that his daughter was fed up and, therefore, she had committed suicide. During treatment she died. He was not satisfied with the accidental death inquiry made by Police Sub-Inspector Dhanjibhai Bodad, who has been examined as PW-6. According to PW-6 Mr. Bodad, when he received information, he reached at Sardarnagar Police Station, and on inquiry, Shaluben stated that he was observing fast on account of religious vow and she was to keep herself awaken for the whole night. Since he was CR.A/334/2006 4/43 JUDGMENT feeling sleepy, she went in kitchen, and on gas, prepared tea for herself and while she was wearing a gown, the same caught fire from the flames of the gas. Dhanjibhai Bodad called the Executive Magistrate for recording dying declaration. PW-2 Pathan Akbarkhan Hussainkhan, Executive Magistrate, recorded dying declaration of the deceased at 8.35 hours on the morning of 3rd of August, 2000, wherein she stated that, while she was preparing tea and hot utensil was caught by her through one piece of cloth, that piece of cloth had caught fire, which she had thrown on floor, and from the said burning piece of cloth, her clothes caught fire. At that time, her husband appellant was watching TV in the other room. On hearing her shouts, husband ran towards her and tried to quench fire, in which he also got injuries on his hand. Thereafter, it appears that, Devandas Bachwani was not satisfied at all with the inquiry made by the police in accidental death and he pursued the matter vigorously with the State Government and it appears that he filed some proceeding before the High Court also. However, in pursuance of an application filed by the father of the deceased, it appears that, Sardarnagar Police Station, contacted the father of the deceased through second PSI, Bharatbhai Aayer, who recorded the complaint of Devandas Bachwani, which is placed on record at Exhibit-21. It has been clearly stated in Exhibit-21 that his deceased daughter was subjected to cruelty during her short marriage span by CR.A/334/2006 5/43 JUDGMENT the appellant and he was instigated by other two accused. According to the further prosecution case, appellant was doing occupation of rickshaw driving and deceased was forced by the appellant to bring Rs. 50,000/- from her parents. Deceased had requested to provide that amount to her husband, but on account of poor financial condition of father of the deceased, the demand could not be met by him, and on account of that, deceased was subjected to cruelty, physical and mental as well. Deceased was complaining about the cruelty executed upon her to her parents and her sisters, but Devandas Bachwani, father of the deceased, tried to purse her to stay with appellant with the hope that by the time, everything might be peaceful and on this account while she was fed up, she committed suicide pouring kerosene and in Exhibit-21, father of the deceased Devandas Bachwani, expressed his suspicion about truthfulness of the inquiry done by the police in accidental death wherein alleged dying declaration and statement was recorded of the deceased. On 21st of November, 2000, complaint of the father of the deceased came to be recorded by Bharatbhai Aayer, PSI, Sardarnagar Police Station and he investigated the offence and ultimately filed charge sheet before Metropolitan Magistrate, Court No. 17, at Ahmedabad against in all three accused. The case was committed to the Court of Sessions and was numbered as Sessions Case No.144 of 2002. Thereafter the said Sessions Case was made over to Additional Sessions CR.A/334/2006 6/43 JUDGMENT Judge i.e. the Trial Court. Principal City Sessions Judge, Ahmedabad City, framed charges against the accused at Exhibit-2 on 8th of October, 2002, for the offences punishable under Section 498-A, 306 to read with Section 114 of the Indian Penal Code as well as under Sections 3 and 7 of the Dowry Prohibition Act. The charge was read over to the accused and they pleaded not guilty and, hence, accused were tried in the said Sessions Case. 3 To prove its case, prosecution examined as many as 10 witnesses and produced on record voluminous documentary evidence. An important documentary evidence - Postmortem Note is placed at Exhibit-15; Dying Declaration recorded by Executive Magistrate on 3rd of August, 2003 of the deceased is placed at Exhibit – 17; Yadi to Executive Magistrate is placed at Exhibit – 18; Inquest Panchnama is placed at Exhibit-19; complaint filed by Devandas Bachwani, father of the deceased on 22 of November, 2000 is placed at Exhibit–21; panchnama of scene of offence is placed at Exhibit-23; complaint recorded of the deceased by Dhanjibhai Bodad, is placed at Exhibit-26, which is alleged to have been recorded on 3rd of August, 2000 in the early morning; at Exhibit-29 acknowledgment from Forensic Science Laboratory, Ahmedabad, and forwarding letter along with muddamal by the police to Forensic Science Laboratory is placed at Exhibit-30; application filed CR.A/334/2006 7/43 JUDGMENT by Devandas Bachwani, father of the deceased, for transfer of said trial from the trial court is placed at Exhibit–35, wherein also he has reiterated that death of the daughter has not been properly inquired into accidental death inquiry and that he had filed Special Criminal Application before the High Court in this regard and government was also requested by his application dated 7th of September, 2000 to do the needful. Some of the papers of accidental death inquiry are also placed on record. Vide Exhibit– 47 report of an Officer of the Forensic Science Laboratory, who had visited the place of offence, is produced; case papers of the treatment given to the deceased is also produced at Exhibit-51 by PW-10 Dr. Yogesh Mahendra Yadav, who had first point in time treated the deceased. 4 In oral evidence, as aforesaid, in all 10 witnesses have been examined. 4.1 PW-1 Dr. Jayantibhai Virjibhai, is examined at Exhibit-14, who conducted the postmortem of the deceased on 4th of August, 2000 at about 12.05 hours. He produced on record the postmortem notes and he deposed that almost the whole body of the deceased was burnt. There is no dispute that cause of death was on account of extensive burn. CR.A/334/2006 8/43 JUDGMENT 4.2 PW-2 Pathan Akbarkhan Hussainkhan, is Executive Magistrate, who recorded the Dying Declaration of the deceased on 3rd of August, 2000, at about 8.05 hours. According to him, on receiving yadi from police, he visited Civil Hospital at Ward No. E/1, bed No.3, and recorded the Dying Declaration in questionnaire form. In Dying Declaration, it was stated by the deceased that while he was preparing tea late at night and tried to grab utensil, by a piece of cloth and said piece of cloth caught fire, which she had thrown on the floor and consequently from the flames of said piece of cloth, her clothes also caught fire and she was burnt. 4.3 PW-3 Complainant Devandas Bachwani, is examined at Exhibit-20. He deposed that deceased Shaluben had married to appellant in 1999 and was staying with her husband. Other accused were elder brothers of appellant. He deposed that how was he called by the appellant on pretext that his daughter had got injuries on her legs. She was taken to hospital by his daughters and appellant. He reached at the hospital. The victim was not in a position to speak. After 24 hours she died during treatment. He produced on record his complaint at Exhibit–21. He stated that his daughter was treated with cruelty. He stated that appellant was demanding Rs. 50,000/- from her daughter for CR.A/334/2006 9/43 JUDGMENT purchase of new rickshaw. He has been cross-examined in detail about how the marriage of Shaluben and the appellant was arranged. He stated that his daughter and son-in-law were staying all alone in one house and that other accused were staying adjacent to the house of his daughter and the entry of the said house was from the house of the appellant. He stated in his deposition that his daughter was frequently visiting her house sometimes all alone and sometimes accompanying with appellant. He was asked about where he was, when he received message from his son-in-law appellant. He was confronted with his statement recorded during accidental death on 3rd of August, 2000 wherein he stated that his daughter and the appellant were staying with peace and there was no question of any cruelty executed upon his daughter, no complaint, any time, had been made by his daughter against her husband. During these two years, the couple had no issue. Though in examination-in-cross, the witness denied to have stated before the police, as above. He stated further that when his statement was recorded on 3rd of August, 2000, he was under tension and till he filed the complaint on 22nd of November, 2000, he was at Ahmedabad only. 4.4 PW-4 Babubhai Dahyabhai, examined at Exhibit 22, is a panch of panchnama Exhibit–23 of scene of offence, but he has not CR.A/334/2006 10/43 JUDGMENT supported the prosecution case. 4.5 PW-5 Jitubhai Gordhandas, examined at Exhibit-24, is second panch of panchnama Exhibit–23 of scene of offence and he has also not supported the prosecution case. 4.6 PW-7 Bharatbhai Aayer, examined at Exhibit – 27 is an Investigating Officer. According to him, he was entrusted with the investigation of accidental death No. 36 of 2000 of the Sardarnagar Police Station. In this process, he had called Devandas Bachwani, father of the deceased and he offered his complaint about cruelty and suicide committed by his daughter Shaluben, which was recorded by him on 22nd of November, 2000. He recorded the statements of the witnesses and on receiving Forensic Science Laboratory report, he submitted charge sheet. In his cross-examination, he admitted that he was entrusted with all papers of the said accidental death and inquiry conducted by Mr. Dhanjibhai Bodad. He recorded the statements of the neighbours of the deceased. 4.7 PW-6 Dhanjibhai Bodad, examined at Exhibit-25, is the Police Officer of Sardarnagar Police Station, who inquired into accidental death being Entry No.36 of 2000. According to him, on CR.A/334/2006 11/43 JUDGMENT receiving information, he visited Civil Hospital and recorded complaint of the deceased wherein she stated that she was observing religious Vow of Dasama and accordingly she was observing fast and she was to be awaken for the whole night. At late night hours and early hours of 3rd of August, 2000, she was watching TV with her husband in other room, when she felt drowsy, she went to the kitchen for preparing tea for herself. While she was preparing tea on gas, her gown caught fire and she was burnt. According to this witness, he called the Executive Magistrate, who had recorded the Dying Declaration. According to this witness, he recorded the statements of other persons including Devandas Kimatmal, Rajkumar Devandas, Nirmlaben @ Sonalben, sister of the deceased, Umaben, etc. According to this witness, in the presence of an Officer of Forensic Science Laboratory, a panchnama of scene of offence was drawn and pieces of clothes, which were half burnt, were seized from the place of offnece. On the other room, near door, soot was appearing and sample was collected from the said soot. In his examination-in-cross, contradictions in the statements of the complainant and sisters of deceased were proved. The statements are the statements of Draupadi and Sonaben. 4.8 PW-8 Sonaben, wife of Manoharlal Bagnani, is examined at Exhibit-39. She is sister of the deceased. She stated that the name of CR.A/334/2006 12/43 JUDGMENT Shaluben before marriage was Padma and her in-laws kept her name Shalu. After marriage, appellant was behaving with Shalu roughly and cruelty was executed upon her. Appellant was beating her and was demanding money to be brought from her parents. She was not even provided sufficient food at least four times in a week. Deceased was beaten by the appellant and on account of disappointment, deceased was visiting her parental house and when witness was also visiting her parental house, deceased used to communicate this witness that how was she treated by the appellant with cruelty, mental as well as physical. Deceased was complaining about the appellant in the presence of younger sister Draupadi and younger brother Raju. She was also complaining that appellant was in habit of taking alcohol and was in habit of demanding money. The financial condition of her father was not good and, therefore, they could not accede to the demands of the appellant. Accused Nos. 2 and 3 were instigating the appellant to bring amount from his in-laws. On receiving message, she and her husband reached at the house of the deceased and deceased was made to sit on floor, getting support of bed. She was smelling of kerosene. When she asked deceased about the incident, she could only indicate appellant No.1 by gesture. Thereafter, along with her younger sister, deceased was taken in rickshaw, which was driven by her husband and they were going towards hospital and on way they met with their father. CR.A/334/2006 13/43 JUDGMENT When they reached at Civil Hospital, deceased was in very serious condition and was not able to speak. Police had visited and they had requested police that deceased was not in a position to speak and how her statement could be recorded. In the meantime, they found that accused No.2 Prembhai was dictating something to the police. Police had obtained signatures of her and Draupadi and her brother on some papers. She has been cross-examined in detail. She stated that at her house deceased was conscious, but when she was shifted to the hospital in rickshaw, she was unconscious. Police had not inquired anything from her. She was confronted by her statement recorded by Mr. Dhanjibhai Bodad in accidental death inquiry. She denied that in earlier statement she stated that the couple was residing with peace and there was no quarrel amongst them. She denied to have stated before Mr.Bodad that only on account of the fact that even after two years of marriage span, they had no issue, she committed suicide. She denied that during treatment her sister was in fully conscious condition. She admitted that her sister was of pious and religious nature. She denied that her sister was observing vow of dasama. She denied the allegation that at the instance of her father, she falsely deposed that deceased was subjected to cruelty by appellant. 4.9 PW-9 Draupadi Bachwani, examined at Exhibit-39, is also CR.A/334/2006 14/43 JUDGMENT sister of the deceased and reached at the house of the deceased along with PW-8 Sonaben. She also stated about cruelty executed by husband of deceased and demand of Rs. 50,000/- for purchasing new rickshaw. Almost in similar manner as PW-8, she described how deceased was treated by the appellant. In rickshaw when deceased was taken to the hospital, appellant was frequently inquiring from the deceased that what she intended to state about the incident. She denied all the allegations that she had given statement in accidental death inquiry before police and that deceased was conscious when her statement and dying declaration were recorded. She has also been cross-examined by the defence and was confronted with the earlier statement wherein she had stated that there was no cruelty executed upon her sister by appellant and that their life was peaceful. She denied to have stated this fact before police. 4 Last witness PW-10 Dr. Yogesh Mahendrabhai Jadav, is examined at Exhibit–56, very important witness, deposed that on 3rd of August, 2000, while he was serving in Casualty Department as Medical Officer at about 3.30 a.m. Shalu was brought before him. Her father was accompanying her and her father gave a history of burning, he informed hospital duty constable. While he examined her though she was conscious, but smell of kerosene was coming from her body. The CR.A/334/2006 15/43 JUDGMENT Doctor thereafter narrated the injuries received by her due to burns. The witness deposed that there were 100% burns and during treatment she died on 4th of August, 2000 at about 2.00 a.m. At Exhibit-57 he produced on record the case papers. In his examination-in-cross, he stated that though he tried to inquire from the deceased, but since she was seriously burnt, she was not speaking. He further stated that he also had treated appellant No.1, who had also burn injuries on hand. In history, appellant had stated that, since her wife had got burn injuries and he tried to save her, he had also received burn injuries. He produced on record the case papers and certificate in respect of appellant also. 5 This is all the evidence of the prosecution. 6 The Trial Court thereafter recorded further statements of the accused in which their case was of total denial. The learned Trial Judge thereafter heard the prosecution as well as the defence and came to the above conclusion and, hence, this Appeal. 7 Learned Advocate Mr. Samir A. Dave, on behalf of the appellant was heard extensively. He submitted that the prosecution has failed to prove the case against the appellant beyond doubt and that CR.A/334/2006 16/43 JUDGMENT the case of the prosecution is full of contradictions. The complaint came to be filed after three months and no reasonable and plausible explanation has been offered by the prosecution for filing late complaint. For the demand of dowry and for the cruelty, there is no cogent evidence to believe that on account of that cruelty, deceased committed suicide. On the contrary, it has been established on record that appellant No.1 also received injuries while quenching fire and to save his wife and that indicates that there was no quarrel between the couple. PW-10 Dr. Yogesh Mahendrabhai Jadav has produced on record the treatment papers in this regard. It is submitted that considering the statement of the deceased recorded by PW-6 Dhanjibhai Bodad, and her dying declaration Exhibit-17, as narrated by PW-2 Pathan Akbarkhan Hussainkhan, there is no room of doubt that the incident was of an accident and not even of suicide. In both the statements, deceased herself, stated that when she was observing vow of dasama and she was to be awaken whole night, while preparing tea , she caught fire. No further evidence, in fact, according to learned Advocate, requires to come to a conclusion that the incident was merely an accident and there was no cruelty executed on the part of the appellant. It is submitted that accused Nos. 2 and 3 are acquitted by the trial court and no acquittal appeal is preferred by the State. It is submitted that in accidental death inquiry, PW-3 Devandas Bachwani, PW-8 Sonaben Manoharlal and CR.A/334/2006 17/43 JUDGMENT PW-9 Draupadi Bachwani stated that deceased was never subjected to any cruelty by the appellant and that their life was peaceful. The statements of these three witnesses are proved in the evidence of witness No.6 Dhanjibhai Bodad and there can be no other circumstances to decide that the incident was a simple accident. No independent witnesses came to be examined by the prosecution though some statements are recorded and PW-6 witness Dhanjibhai Bodad stated that no incriminating circumstances emerged from such statements. There are therefore, according to learned Advocate for the appellant, two views emerges from prosecution case and first set of evidence, which is proved during prosecution evidence, indicates that the deceased was the victim of an accident and was never subjected to cruelty while, however, after three months, complaint to the contrary of first set came to be filed and the relatives of the deceased took different view and the accused were charge sheeted. It is submitted that the learned Trial Judge erred and failed to appreciate this vital aspect of the case. 8 Learned Advocate for the Appellant Mr. Dave also vehemently urged that it has been established during the evidence that even after two years span of marriage, the deceased was issue less. As a probability, learned Advocate submitted that, if at all, the court comes to the conclusion that the incident was of suicide, then also, not having CR.A/334/2006 18/43 JUDGMENT issue, may be a cause for committing suicide. 9 Learned Advocate further argued on the issue of law that appellant No.1 was convicted for the offence punishable under Section 304-B of the Indian Penal Code. It is vehemently submitted that the Trial Court failed to frame charge against the appellant for the offence punishable under Section 304-B of the Indian Penal Code. Our attention was drawn to Exhibit-2 charge, where according to learned Advocate Mr. Dave, no specific charge was framed and read over to the appellant