CR.A/582/2005 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 582 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ===================================================== 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 ? ===================================================== NUTANBHAI JERMIYABHAI PADVI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR JB PARDIWALA for Appellant(s) : 1 - 2. MS. PUNANI, APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI CR.A/582/2005 2/11 JUDGMENT Date : 04/04/2008 ORAL JUDGMENT 1. The appellants are original accused. They were by impugned Judgment and order dated 24th February, 2005 passed by learned Additional Sessions Judge, Bharuch in Sessions Case No.158 of 2004 convicted for offences punishable under Section 498-A and under Sections 306 read with 114 of IPC. 2. As per charge Exh.1, it was alleged against accused No.1 (present appellant No.1) who was the husband of deceased Ashaben and accused No.2 (present appellant No.2) who was the mother of accused No.1, that on 15.7.2004 or some time there about the accused treated deceased Ashaben with cruelty by taunting her about her household work and did not give sufficient food to eat. It was further alleged that accused No.1 also used to physically and mentally torture the deceased girl by beating her under influence of alcohol. It was further alleged that on account of such cruel treatment, Ashaben committed suicide by consuming poison. It was thus CR.A/582/2005 3/11 JUDGMENT alleged that the accused committed offences punishable under Section 498-A and Section 306 of IPC. 3. Dr.Rakesh Kumar Prasad, PW-1, Exh.6 had carried out the postmortem on the body of the deceased girl on 19th July, 2004. As per his opnion, deceased died due to poisoning. It may be noted that the dead body of the girl was found several days after her death and was in such condition that the same could not be shifted to hosptial and the postmortem had to be carried out at the spot where the body was found. 4. Father of the deceased girl, Vasubhai, PW-2 was examined at Exh.10. He stated that on 15.7.2004 his daughter Asha came home at about 5 O'Clock in the evening. She had come to celebrate the festival of Diwaso falling on the next day. Later, at night at 12 O'Clock, her husband came to his house under drunken condition to take her back. The witness requested to let Asha stay for a day more. Accused No.1, however, did not relent. Asha was, therefore, sent back with CR.A/582/2005 4/11 JUDGMENT him. At which time, she had complained that her husband consumes liquor and quarrel with her. She also told him that her mother-in-law also treats her with cruelty and does not give sufficient food and taunts her about her household work. Thereafter, he came to know that Asha was missing. He inquired about her with other relatives but Asha was not found. On 19th July, 2004 when his wife had gone to collect fodder, she found Asha's dead body at an isolated place. He further stated that six months before the incident, his daughter had told him about a quarrel she had with her husband. 4.1 In the cross-examination, he agreed that his daughter used to stay with her husband even when she was not well and her husband used to get her treated at a Hospital at Rajpipla. He agreed that accused No.1 had consumed poison, after his wife's dead body was found. He admitted that in his complaint, he had stated that for one year after the marriage the husband and wife had not come to his house. He agreed that accused No.1 did not normally come to his house. CR.A/582/2005 5/11 JUDGMENT 5. It may be noted that except for this witness, all other material witnesses did not support the prosecution and had turned hostile. Thus, Khushalbhai Nayak PW-10 Exh.22 brother of the sister girl, Ukadiben Nayak PW-11 Exh.23 mother of the deceased girl and Shantaben Nayak PW-12 Exh.24 second wife (step mother) of Ashaben's father, Lataben Khushalbhai PW-14,Exh.28 and Ushaben Vasava PW-13 Exh.27 all had turned hostile and none of them supported the prosecution in any manner. In fact, these witnesses in the cross-examination by the defence had stated that deceased girl was being treated properly by the accused. 6. Law regarding the evidence of hostile witness is sufficiently clear. In the case K.Anbazhagan V/s. Superintendent of Police and others reported in AIR 2004 SC 524. Apex Court made following observations: “32. Mr. Venugopal, learned senior counsel for the respondent, contended that merely because the witnesses were not declared hostile, would not exclude or render unworthy of consideration the facts rendered by them in their evidence-in- chief. He submitted that the Court can consider any part of their testimony and can still believe and rely upon that part of testimony CR.A/582/2005 6/11 JUDGMENT which was given in the evidence-in-chief if that part of the deposition is found to be creditworthy. According to Mr. Venugopal by not declaring the P.Ws. as hostile witnesses no prejudice has been caused to the prosecution case. To buttress his contention reliance has been placed in Gura Singh v. State of Rajasthan (2001) 2 SCC 205; State of Bihar v. Laloo Prasad (2002) 9 SCC 626 and Pandappa Hanumappa Hanamar v. State of Karnataka (1997) 10 SCC 197. This Court in Laloo Prasad's case (supra) observed that it is open to the party who called the witness to seek the permission of the Court as envisaged in S. 154 of the Evidence Act at any stage of the examination and it is a discretion vested with the Court whether to grant the permission or not. It is further observed that normally when the public prosecutor requested for the permission to put cross-questions to a witness called by him the Court used to grant it. It was further pointed out that if the public prosecutor had sought permission at the end of the chief examination itself the trial Court would have no good reason for declining the permission sought for. On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above referred cases are rendered in cases where the public prosecutor CR.A/582/2005 7/11 JUDGMENT seeks permission to question his own witnesses by resorting to S. 154 of the Evidence Act and the Court allowed the public prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the public prosecutor has not sought permission from the Court by resorting to S. 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice”. 6.1 In case of Lella Sromovasa Rap V/s. State of Andhra Pradesh, AIR 2004 SC 1720. The Apex Court made following observations: “14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW-1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the appellant were being brought up in the house of the appellant which was objected to by the deceased. If in those unfortunate CR.A/582/2005 8/11 JUDGMENT circumstances the three children of the deceased sister of the appellant were being brought up in his family, one cannot blame the appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who could have deposed about the treatment meted out to the deceased. All of them have denied the suggestion that the appellant or his mother-in- law treated the deceased with cruelty. The fact that these witnesses have been declared hostile by the prosecution, does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. In any event, if their evidence is kept out of consideration, there is no other evidence to prove the prosecution allegation of cruelty and harassment meted out to the deceased. Having regard to the inconsistency in the two dying declarations we do not find it safe to act solely on them to convict the appellant, and for that reason even accused No. 2, the mother of the appellant who has since served out her sentence”. 6.2 In the case of State of Gujarat V/s. Bharatbhai Balubhai Lad & Ors. reported in 2006(1) GLR 514 explaining the difference between Sections 498-A and 306, the Supreme Court made following observations: “Basic difference between the two Sections i.e. Sec.306 and Sec.498-A is that of intention. Under the latter, cruelty committed by the husband or CR.A/582/2005 9/11 JUDGMENT his relations drag the women concerned to commit suicide while under the former provision suicide is abetted and intended”. 7. As already noted earlier, except for Vasubhai PW-2 father of Ashaben, no other family members supported the prosecution in any manner before the Court. Thus by way of substantive evidence all that we have on record is testimony of Vasubhai, whose version I have already noted earlier. To recapitulate, briefly, he had stated that on 15.7.2004 when Asha had come to his house, she had complained that her husband illtreats her under influence of alcohol. So far as mohter-in-law is concerned, he had stated that she taunts her about household work and does not give sufficient food. Though, he also tried to narrate some previous incidents where Asha had complained about quarrel with her husband six months earlier, no further proof or details of such cruelty are available on record. 8. At best, therefore, in so far as the accused No.1 is concerned, deceased had complained to her father about his ill-treating her under influence of CR.A/582/2005 10/11 JUDGMENT alcohol. His conviction under Section 498-A of IPC could, therefore, be justified. But the question is was there sufficient evidence to convict him under Section 306 read with Section 114 of IPC ? 9. Equally, importantly, the question is whether there was any evidence at all against the accused No.2 for her conviction for either of the two offences. 10. In this regard, I find that except for some general allegations against accused No.2, by PW-2 Vasubhai, there were no specific allegations of cruelty so as to prove charge under Section 498-A of IPC. Equally, importantly, allegations against the husband, though amount to cruelty under Section 498-A of IPC, the same are not sufficient to bring home the charge under Section 306 read with Section 107 of the IPC of having abated suicide. 11. Under the circumstances, the appeal is disposed of with following directions: CR.A/582/2005 11/11 JUDGMENT (1)Conviction and sentence of the appellant No.1 under Section 498-A of IPC are confirmed. (2)Conviction and sentence of appellant No.1 under Section 306 of IPC are set aside. (3)Conviction and sentence of appellant No.2 under Section 498-A as well as under Section 306 are set aside. (4) Appellant No.1 is stated to have been in custody. He was arrested on 22nd July, 2004. If he has served out the sentence as upheld by this Court, he shall be released forthwith, if not required, in any other criminal case. (5) Appeal disposed of accordingly. (AKIL KURESHI, J.) ashish//