R/CR.A/531/2004 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 531 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ? ================================================================ KAMLESH PRABHUDAS TANNA....Appellant(s) Versus STATE OF GUJARAT & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR PRATIK B BAROT, ADVOCATE for the Appellant(s) No. 1 - 2 (Amicus curiae) MS CHETNA SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :31 /07/2014 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This Criminal Appeal is at the instance of two convicts of Page 1 of 71 R/CR.A/531/2004 CAV JUDGMENT the offence punishable under Sections 304-B, 306 and 498-A read with Section 34 of the Indian Penal Code, and is directed against order of conviction and consequent sentence dated 5th March, 2004, passed by the Additional Sessions Judge, Fast Track Court No.1, Jamnagar, in Sessions Case No. 158 of 2001. By the aforesaid order passed by the learned Additional Sessions Judge, both the accused-appellants have been convicted of the offence punishable under Section 304-B read with Section 34 of the Indian Penal Code, including Section 4 of the Dowry Prohibition Act, and have been sentenced to undergo rigorous imprisonment for a period of seven years with fine of Rs. 1,000/- each. In default of payment of fine, the appellants would undergo further simple imprisonment for one year. 2. The appellants have also been convicted of the offence under Section 306, read with Section 34 of the Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs. 1,000/- each. In default of payment of fine, the appellants would undergo further simple imprisonment for one year. 3. The appellants have also been convicted of the offence punishable under Section 498-A, read with Section 34 of the Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for a period of 18 months, with fine of Rs. 500/- each. In default of payment of fine, the appellants would undergo further simple imprisonment for six months. 4. The appellants have also been convicted for the offence punishable under Section 4 of the Dowry Prohibition Act, and Page 2 of 71 R/CR.A/531/2004 CAV JUDGMENT have been sentenced to undergo rigorous imprisonment for a period of six months and fine of Rs. 250/- each. In default of payment of fine, the appellants would undergo further simple imprisonment for two months. 5. The case of the prosecution may be summarized as under:- 5.1 The appellant No.1 is the husband of the deceased, whereas the appellant No.2 is the mother-in-law of the deceased. The marriage of the deceased with the appellant No.1 was solemnized on 29th April, 1997. In the wedlock, two children were born, a daughter named "Riti", who, at the time of the incident was two years old and a son named "Yash", who, at the time of the incident was seven months old. The deceased was a South Indian lady. Her native place was Mangalore. However, the parents of the deceased had settled in Goa. The accused-appellants are Gujaratis from Jamnagar. It is the case of the prosecution that the deceased, namely, Sandhya was working in the company of the brother-in-law of the accused No.1 at Goa and accordingly, came in contact with the accused No.1. Both fell in love and decided to get married amidst objection on the part of the parents of the deceased. According to the prosecution, after marriage, the accused persons started harassing the deceased as they insisted that the deceased should get Rs. 2 lac from her parents. As the parents of the deceased were unable to arrange for Rs. 2 lac, there was incessant harassment to the deceased at the end of both the accused persons, as a result, the deceased committed suicide by hanging herself. Page 3 of 71 R/CR.A/531/2004 CAV JUDGMENT 5.2 It appears from the materials on record that the brother of the deceased, P.W 2 Santosh Chandrashekar Kanan lodged the First Information Report on 30th September, 2001, before the Deputy Superintendent of Police, Jamnagar City, inter-alia stating that he was residing with his parents and a brother. It has been stated that his sister Sandhya had performed love marriage with Kamlesh Prabhudas Tanna, the accused No.1, of Jamnagar on 24th September, 1997, and thereafter, was residing with her husband at Jamnagar. It has been stated that his sister Sandhya committed suicide on 11th September, 2001, at her matrimonial home. The accused No.1 had informed the first informant on telephone that Sandhya had committed suicide. No sooner had the first informant learnt about the incident, than he himself along with his friend Sandilkumar Swamy rushed to Jamnagar. On making enquiry regarding the sudden death of his sister, he was informed by the accused No.1 that Sandhya was tired of life as her children were constantly suffering from fever, diarrhoea and vomiting. The first informant was informed by the accused No.1 that due to such reason, Sandhya strangulated herself with a dupatta in her house and thereby committed suicide. The explanation offered by the accused No.1 was not found convincing and palatable to the first informant, as Sandhya was a lady with strong mind. According to the first informant, Sandhya was not a person who would go to the extent of committing suicide being fed-up with the illness of her children, who, at the relevant point of time, were just two years and seven months respectively of the age. It has been further stated in the F.I.R, Exh. 25 that Sandhya had come to Goa for her first delivery and had stayed for two and a half months. Sandhya gave birth to a girl child at Goa. While Sandhya was at Goa, she had Page 4 of 71 R/CR.A/531/2004 CAV JUDGMENT disclosed before her family members that the accused persons were conveying to her that they had no money to start a business. It has been further stated in the F.I.R that the accused No. 2 used to tell the accused No.1 that his father-in- law was a miser and had failed to give anything to her daughter. At times, the accused No.2 used to directly tell the deceased that at Jamnagar, the daughter-in-laws would come to their matrimonial home with dowry, but her father was a miser. It has also been stated in the F.I.R that it was informed by the deceased that her mother-in-law used to say that the father of the deceased had foisted the deceased upon them as a liability. The deceased also used to complain that although she used to perform all the household works, yet, on one pretext or the other, the mother-in-law used to fight with her and taunt her by saying that the deceased was not able to cook, nor was able to do any domestic household work. The accused No.2 also used to taunt the deceased that her father had not taught anything to her and saying so, used to cause mental trauma. It has been stated in the F.I.R that the deceased had told them that despite complaining before the accused No.1 regarding the harassment caused by the accused No.2 and requesting the accused No.1 to persuade the accused No.2 not to treat the deceased cruelly, yet the accused No.1 did not pay any heed to the request of the deceased and on the contrary, the deceased was instructed by the accused No.1 to act according to the wishes of the accused No.2. It has been stated that they had enquired with Sandhya whether they should come to Jamnagar and reprimand the accused persons of their behaviour, but Sandhya restrained her parents and brother as the nature of the accused No.1 was very bad. Sandhya had also conveyed to her parents and her Page 5 of 71 R/CR.A/531/2004 CAV JUDGMENT brother that if they would reprimand, then they would act more cruelly with her. It has also been stated in the F.I.R that thereafter, quite frequently, Sandhya used to call up from Jamnagar and while inquiring with Sandhya regarding her condition, Sandhya used to convey that the accused No.2 was demanding Rs. 2 lac for business. Sandhya also used to inform her parents and brother that the accused persons desired that she should get Rs. 2 lac from her parental home. However, the accused persons had not directly told the deceased to get the money. According to the first informant, such were the conversation with the deceased on telephone. It has been further stated that one fine day the first informant was very keen to speak to her sister and therefore, had called up on telephone. The telephone was received by the accused No.1 and the accused No.1 was requested to hand over the receiver to Sandhya. However, the accused No.1 had informed the first informant that Sandhya had fallen sick and had been admitted in the hospital past two days as she consumed tea containing a small lizard. The accused No.1 had asked the first informant to call up after two days. After two days, the first informant again called up Sandhya and at that time, Sandhya had informed the first informant that her mother-in-law was not allowing her to live in peace and the accused No.1 husband was maintaining complete silence. It was also informed by Sandhya to the first informant that as a matter of fact, she had consumed poison. However, as she survived and having realized that her two minor children may not have to suffer, she had given a false statement before the Police that she had consumed tea unmindful about the lizard having fallen in the same. Sandhya had also requested the first informant that the entire episode was over and, therefore, the accused persons Page 6 of 71 R/CR.A/531/2004 CAV JUDGMENT need not be told anything about the same. It has been further stated that in 2001, after the devastating earthquake in Gujarat, Sandhya and her two children along with the accused No.2 came down to Goa. The father of Sandhya had gone to the Railway Station to receive them, but the accused No.2 refused to come at their house, and instead went to the house of her daughter, who was married at Goa. It has been further stated that while at Goa, Sandhya had once visited the house of her friend, namely Ujwala (P.W 15) and had also visited the house of Sandilkumar (P.W.20). It has also been stated in the first information report that although the mother-in-law of Sandhya stayed at Goa for two months, yet had refused to come at their house, despite making an earnest request. During the stay at Goa, Sandhya had conveyed to one and all that her mother-in-law and husband were insisting that she must get Rs. 2 lac from her father. However, the brother and parents of Sandhya expressed their inability to arrange for the money. They all consoled the deceased saying that they would arrange for the same within a short period. They had also told Sandhya to convey to her mother-in-law and her husband that money would be paid to them in a short time. After reaching Jamnagar, Sandhya used to call up once in a week and at that time she used to inform her father that the accused persons were behaving very badly and were taunting her. She had also conveyed that the accused persons were insisting that she must call for the money at the earliest. She had also conveyed that if the arrangement for money was not made, then they will make her life more miserable. It has been stated that Sandhya used to tell them that no sooner had the arrangement for money was made, than the same may be sent at the earliest. Page 7 of 71 R/CR.A/531/2004 CAV JUDGMENT 5.3 On 9th September, 2001, Sandhya's mother had called up at Jamnagar and at that time, Sandhya started crying and informed that if her children would start crying and if she would start taking care of her children, then her mother-in-law would insist that she should not attend the children and continue with her household work. Sandhya also informed that her mother-in-law would not allow her to take care of her children. It was also conveyed by Sandhya that she was told by the accused persons that if her parents were not able to arrange for the money, then she might have to live the rest of her life at her father's house. She was also told by the accused persons that they would not keep her without any gain. At that time, Sandhya had requested to send at least one lac of rupees. It has been stated in the F.I.R that the accused persons kept on demanding for Rs. 2 lac as dowry, as the accused persons wanted to start a business. The accused persons kept on pressurizing Sandhya and unable to bear the torture and harassment at the end of the accused persons, Sandhya took the extreme step of tying a dupatta with a ceiling fan and strangulated herself, leaving behind her two minor children. 5.4 On the first information being lodged, the investigation had commenced. The inquest panchnama Exh.46 of the dead body of the deceased was drawn in presence of the panch witnesses. The dead body was sent for postmortem examination and the postmortem report Exh.20 noted that the cause of death was asphyxia on account of hanging. The scene of offence panchnama Exh.61 was drawn in the presence of the panch witnesses. The accused persons were Page 8 of 71 R/CR.A/531/2004 CAV JUDGMENT arrested and the panchnama of their person Exh.63 were drawn. The statements of the witnesses were recorded and ultimately, a charge-sheet against the accused persons was filed in the Court of the learned Judicial Magistrate First Class, Jamnagar. However, as the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of the Criminal Procedure Code. 6. The prosecution examined the following witnesses in support of its case. 1. PW-1 Dr. Rakhalchandra Gopeshchandra Datt Exh. 19 2. PW-2 Santosh Chandrashekhar Kanan(Complainant) Exh.24 3. PW-3 Prashannjit Rupendrakumar Bhattacharya Exh. 27 4. PW-4 Yogesh Narmadashankar Raval Exh. 28 5. PW-5 Rajubhai Ratilal Exh. 29 6. PW-6 Ashokbhai Ratanshi Jethva Exh. 30 7. PW-7 Karansinh Jilubha Exh. 31 8. PW-8 Chhabil Nanubhai Sangani Exh. 32 9. PW-9 Pranav Jayeshbhai Dave Exh. 33 10. PW-10 Umaben Dharnat Chavda Exh. 34 11. PW-11 Vijaysinh Balvantsinh Jadeja Exh. 36 12. PW-12 Nanduben w/o Nagjibhai Exh. 38 13. PW-13 Chandrashekhar Kanan Exh. 39 14. PW-14 Padmini Chandrashekhar Kanan Exh. 40 15. PW-15 Ujjavala Uttam Exh. 41 16. PW-16 Hitendra Ratilal Kelaiya(ExecutiveMagistrate)Exh.44 17. PW-17 Motilal Pethraj Barot (Head Constable) Exh.48 18. PW-18 Dilipsinh Gatursinh Vaghela (P.I.) Exh. 51 Page 9 of 71 R/CR.A/531/2004 CAV JUDGMENT 19. PW-19 Pitambar Keshabhai Dabhi (P.S.O.) Exh. 54 20. PW-20 Sandilkumar K.M.K. Swami Exh.58 21. PW-21 Raghubha Prabhatsinh Zala (P.S.I.) Exh.59 22. PW-22 Chhaguji Chaturji Rajput (I.O.) Exh.60 7. The prosecution also produced the following pieces of documentary evidence:- 1. Postmortem Note Exh. 20 2. Yadi for PM Note Exh.21 3. Form for Postmortem Exh. 22 4. Original complaint Exh. 25 5. Yadi for Inquest Exh.45 6. Inquest panchnama of dead-body Exh. 46 7. Yadi for Postmortem Exh. 49 8. Yadi for making entry of accidental death Exh. 52 9. Yadi for registering the offence Exh. 55 10. Copy of Station diary Exh. 56 11. Panchnama of place of incident Exh. 61 12. Panchnama of scissor seized from place of incident Exh.62 13. Panchnama of person of appellant no. 1 Exh. 63 14. Report for adding of Section 306 IPC Exh. 64 15. Letter with statement of muddamal sent to FSL Exh.65 16. Authority Certificate Exh. 66 17. FSL Report Exh. 68 18. Biological report Exh. 70 19. Serological Report Exh. 71 20. Certificate of marriage registration Exh. 72 21. Medical certificate of deceased Exh. 74 22. Panchnama of person of appellant no. 2 Exh. 75 Page 10 of 71 R/CR.A/531/2004 CAV JUDGMENT 23. Report of the offence Exh. 76 8. The accused persons denied the allegations levelled against them by the evidence adduced by the prosecution under Section 313 of the Code of Criminal Procedure and asserted that they were innocent. The learned Additional Sessions Judge found the appellants guilty, convicted them and consequently, awarded the sentence as stated above. 9. Being dissatisfied, the convicts have come up with the present appeal. 10. At this stage, it may not be out of place to state that the appeal we are dealing with had already been adjudicated by a Division Bench of this Court, and vide judgment and order dated 6th September, 2007, the Division Bench was pleased to dismiss the Criminal Appeal No. 531 of 2004 filed by the appellants herein, i.e. the two convicts, Criminal Appeal No. 1889 of 2004 preferred by the State for the enhancement of the sentence as well as the Criminal Revision Application No. 444 of 2007. 11. Being dissatisfied with the judgment and order passed by the Division Bench of this Court dated 6th September, 2007, the two convicts preferred Criminal Appeal No. 1517 of 2007 before the Honourable Supreme Court. The Supreme Court, vide it's order dated 26th August, 2013, set aside the judgment and order dated 6th September, 2007, passed by the Division Bench of this Court in Criminal Appeal No. 531 of 2004, and remitted the appeal for fresh disposal. The Supreme Court, in paragraph 14 of its order dated 26th Page 11 of 71 R/CR.A/531/2004 CAV JUDGMENT August, 2013, observed as under:- "14. Consequently, the impugned judgment and order passed in Criminal Appeal No. 531 of 2004 by the High Court is set aside and the appeal preferred by the appellants is remitted for fresh disposal. The High Court is requested to dispose of the appeal as expeditiously as possible so that the Sword of Damocles is not kept hanging on the head of the appellants. As the appellants are on bail, they shall continue to remain on bail on the same terms and conditions till the disposal of the appeal by the High Court." 12. Consequently, upon remittance of the Criminal Appeal No. 531 of 2004 to this Court for fresh disposal, the appeal came up for hearing before us on 28th April, 2014. When this appeal came up for hearing before us, the appellant No.1 requested that he may be permitted to argue in person. However, as he was not in a position to argue the matter in English, we thought fit to appoint Mr. Pratik Barot, a learned Advocate of this High Court, as amicus curiae for assisting us in these matters. On 28th April, 2014, Mr. Barot prayed for some time to prepare himself, and accordingly, we adjourned the hearing of the appeal to 5th May, 2014. 13. Submissions on behalf of the accused appellants: 13.1 Mr. Barot, the learned Amicus very strongly submitted before us that the trial Court committed a serious error in finding the accused-appellants guilty of the offence under Sections 304-B, 306, 498-A, read with Section 34 of the Page 12 of 71 R/CR.A/531/2004 CAV JUDGMENT Indian Penal Code and Section 4 of the Dowry Prohibition Act. Mr. Barot submitted that even if the entire case of the prosecution is accepted as true, there is no evidence worth the name to hold the accused-appellants guilty of the offence of dowry death punishable under Section 304-B of the Indian Penal Code. The principal argument of Mr. Barot is that even if we believe that there was a demand at the end of the accused- appellants for Rs. 2 lac to start with a business, it could not be said that such a demand was by way of dowry. According to Mr. Barot, there is no evidence worth the name that at the time of marriage, there were any talks regarding the dowry. After the marriage, if there is any demand for financial assistance with a view to start a business, then such a demand would not constitute demand by way of dowry. 13.2 Mr. Barot further submitted that the basic ingredients to constitute the offence under Section 304-B of the Indian Penal Code are lacking, inasmuch as there is no evidence to indicate that "soon before the death" of Sandhya, she was subjected to cruelty or harassment by the accused persons. Mr. Barot also submitted that if no case is made out so far as the offence under Section 304-B of the Indian Penal Code is concerned, then in such circumstances, the conviction of the accused persons of the offence under Section 306 of the Indian Penal Code also is not sustainable. Mr. Barot in the alternative submitted that if the conviction of the accused persons of the offence under Section 304-B is upheld, then there is no reason to confirm the conviction of the accused persons of the offence under Section 306 of the Indian Penal Code. Page 13 of 71 R/CR.A/531/2004 CAV JUDGMENT 13.3 Mr. Barot as amicus submitted that at the most it could be said that there was some harassment at the end of the accused persons, which at the best, would constitute an offence under Section 498-A of the Indian Penal Code. In such circumstances referred to above, Mr. Barot prays that their being merit in the appeal, the same may be allowed. 14. In support of his submissions, Mr. Barot has placed strong reliance on the following decisions of the Supreme Court. 1. Satvir Singh and ors. Vs. State of Punjab - (2001) 8 SCC 633 2. Hira Lal Vs. State (Govt. of NCT) - AIR 2003 SC 2865 3. Kaliya Perumal and anr. Vs. State of Tamil Nadu - 2003- 04 Criminal Law Reporter (SC) Suppl. 795 4. Appasaheb and anr. Vs. State of Maharashtra - (2007) 9 SCC 721 5. Modinsab Kasimsab Kanchagar Vs. State of Karnataka AIR 2013 SC 1504 6. Panchanand Mandal alias Panchan Mandal and anr. Vs. State of Jharkhand - (2013) 9 SCC 800 7. Bharat Bhushan Vs. State of M.P - (2013) CCR (Suppl.) 241 8. Bakshish Ram Vs. State of Punjab - (2013) 4 SCC 131 9. Durga Prasad Vs. State of M.P. - (2010) 6 SCALE 18 10. Sureshkumar Singh Vs. State of U.P. - (2009) 7 SCALE 629 15. Submissions on behalf of the State: Page 14 of 71 R/CR.A/531/2004 CAV JUDGMENT 15.1 Ms. Chetna Shah, the learned Additional Public Prosecutor appearing on behalf of the State has vehemently opposed the appeal filed by the two convicts and submits that the trial Court committed no error in finding the accused- appellants guilty of the offence punishable under Sections 304-B, 306, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. Ms. Shah vehemently submits that the evidence of the P.W 2, Santosh Kanan (the brother of the deceased), the P.W 13, Chandrashekhar Kanan (the father of the deceased), the P.W 14, Padmini Kanan (the mother of the deceased), the P.W 15, Ujwala Uttam (the friend of the deceased), the P.W 20, Sandilkumar Swamy (the friend of the deceased) establishes beyond reasonable doubt that the accused persons had made the life of the deceased miserable by constantly asking her to get Rs. 2 lac from her parents, who were residing at Goa. Ms. Shah submits that the demand of Rs. 2 lac, even after marriage, would constitute demand by way of dowry.