CR.A/1057/2000 1/52 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1057 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 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 ? ========================================================= LAXMIBEN W/O AMBALAL MANGAL BHAI PARMAR & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR DF AMIN for Appellants MR AJ DESAI, ADDL.PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 23/11/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) CR.A/1057/2000 2/52 JUDGMENT 1. Both the appellants are original accused nos. 1 and 2 of Sessions Case No. 28 of 2000 decided by the learned Additional Sessions Judge, Kheda at Nadiad on 16th November, 2000. They have preferred the present appeal under Sections 374 read with Section 386 of the Code of Criminal Procedure, challenging the legality and validity of the order of conviction and sentence on various grounds mentioned in para-3 of the memo of appeal. Both the accused have been held guilty for the charge of offences punishable under Sections 306 read with Section 114 of Indian Penal Code. For the charge of offences punishable under Section 498A of I.P.C., both the accused have been sentenced to undergo imprisonment for three years and to pay fine of Rs. 500/- and in default of payment of fine, punishment is imposed for a period of one year for the said offence. For the charge of offence punishable under Section 306 read with Section 114 of I.P.C., both the accused have been sentenced to undergo imprisonment for a period of 10 years and to pay fine of Rs. 1,000/- each and in default of payment of fine, simple imprisonment is imposed for further period of three months. Both the sentences are ordered to run concurrently. Plain reading of the operative order imposing sentence CR.A/1057/2000 3/52 JUDGMENT gives an impression that while imposing punishment for default in payment of fine for the offences punishable under Section 498A of I.P.C., the learned trial Judge, instead of mentioning one month, has mentioned one year, otherwise, there could not have been lesser punishment as punishment for default in payment of fine of Rs. 1000/- imposed for the offence punishable under Section 306 read with Section 114 of I.P.C. For the sake of brevity, the appellant nos. 1 and 2 are referred in this judgment as “accused nos. 1 and 2” respectively. 2. Before adverting to the submissions made by both the sides, it would be beneficial to state the facts of the case as under. 3. Accused no. 1 is the mother-in-law of the deceased Minaben and accused no.2 is sister-in-law of the deceased and daughter of accused no.1. Marriage of deceased Minaben was solemnized before 3 years prior to the date of incident, with Laljibhai, son of the accused no.1. At the time of marriage as Laljibhai was studying, after solemnization of the marriage, he used to stay at the place of his education and the deceased Minaben used to stay at her in-laws' house with her mother-in-law, father- in-law and sister-in-law. CR.A/1057/2000 4/52 JUDGMENT 4. It is the case of the prosecution that the accused nos. 1 and 2 were giving ill-treatment and harassment to the deceased Minaben and were making false allegations as regards the character of the deceased alleging that she had illicit relations with her father-in-law, that is, the husband of the accused no.1 and father of accused no.2. It is also the case of the prosecution that both the accused were giving ill-treatment with an intention to drive the deceased to commit suicide. As per the case of the prosecution, with a view to achieve the said intention, on the date of the incident, that is, on 28.9.99, the accused no.2 herself played drama of committing suicide in presence of other members of the family including the deceased so that the deceased might commit suicide. 5. It is the case of the prosecution that pursuant to the aforesaid drama, the deceased Minaben committed suicide by pouring kerosene on herself and setting herself on fire at about 13.30 p.m. on 28.9.99. As per the allegation of the prosecution, pursuant to the said incident, both the accused ran away and other persons from the village removed the deceased to the hospital at Karamsad and thereafter shifted her to S.S.G. Hospital at Baroda, where, she CR.A/1057/2000 5/52 JUDGMENT succumbed to her injuries on 30.9.99 at about 22.00 hrs. 6. As per the prosecution case, on 28.9.99, the deceased made a false declaration before her father, informing him that she committed suicide as she could not tolerate. The case of the prosecution is that the accused persons subjected the deceased to intentional cruelty in order to drive her to commit suicide and therefore the accused had committed the offences punishable under Sections 498A and 306 read with Section 114 of I.P.C. 7. The learned trial Judge, after examining the prosecution witnesses and hearing the parties, by judgment and order dated 16.11.2000 convicted both the accused for the offences punishable under Section 498A and Section 306 read with Section 114 of I.P.C. The learned trial Judge, by the above judgment and order held both the accused nos. 1 and 2 guilty for the charge of offence punishable under Section 498A of I.P.C., and sentenced them to undergo imprisonment for a period of 3 years and to pay fine of Rs. 500/- each and in default of payment of fine, imposed simple punishment for a further period of 1 year. The learned trial Judge also held both the accused guilty for the charge of offence CR.A/1057/2000 6/52 JUDGMENT punishable under Section 306 read with Section 114 of I.P.C., and sentenced them to undergo imprisonment for 10 years and to pay fine of Rs. 1000/- and in default of payment of fine, imposed punishment for a period of three months for the said offence. Both the sentences are ordered to run concurrently. 8. Mr. D.F. Amin, learned counsel for the appellants-accused has taken us through various grounds of challenge and also through the evidence led during the course of the trial. By referring to various records and the judgment under challenge, he submitted that the finding of guilt recorded by the learned trial Judge is based on incorrect appreciation of evidence and that some apparent mistakes have been committed by the learned trial Judge in either accepting the case of the prosecution or while dealing with the arguments of the defence that were made by the defence side. Mr. Amin has made three- fold arguments; firstly he submitted that in presence of the two consistent dying declarations of the deceased, wherein, the deceased has stated that she sustained burn CR.A/1057/2000 7/52 JUDGMENT injuries on whole of her body accidentally at the time when she was preparing food at her in- laws' house, the learned trial Judge has erred in holding that death of the deceased was suicidal. That none of the dying declarations speaks about cruelty and therefore, the accused were required to be acquitted ignoring other ambiguous type of evidence led by the prosecution. According to Mr. Amin, if the deceased was tortured mentally in connection with her character, then, she would have stated the facts before the P.S.I., Sojitra, who recorded her statement initially at S.S.G. Hospital, Vadodara and in her statement recorded by the Executive Magistrate, Vadodara. That normally such woman would state details of torture, at least gist of the physical or mental torture made by the in-laws. That these two dying declarations are important initial statements that have been brought by the prosecution. Non-production of the papers from the hospital at Karamsad and SSG Hospital, Vadodara, has positively helped the accused, CR.A/1057/2000 8/52 JUDGMENT because, the case has taken a sharp turn after the arrival of Dy.S.P. and it emerges that the brother of the deceased, perhaps was tempted to file a complaint. It is submitted that till that time, there was no grievance either by the deceased or by her close relatives who were very well present at S.S.G. Hospital at Vadodara. It is submitted that the learned trial Judge has not correctly appreciated this crucial fact situation and that the finding of guilt recorded by the learned trial Judge is bad and cannot be sustained in the eye of law. 9. The second fold of argument of Mr. Amin is that there are number of discrepancies even in the evidence of the prosecution witnesses examined. If the dying declarations, for the sake of argument are ignored, there is no clinching evidence under which a positive conclusion could have been recorded that, there is adequate evidence as to cruelty by any of the accused to the deceased which can be said to be cruelty within the meaning of Section 498A of I.P.C. That the prosecution witnesses have made CR.A/1057/2000 9/52 JUDGMENT material improvement to prove the element of cruelty and number of material things that were stated by the complainant in the FIR recorded by P.S.I., Sojitra have not been stated by the said complainant in his deposition recorded before the trial Court. The FIR cannot be read as substantive piece of evidence. The FIR can be used only for the purpose of corroboration and contradiction while evaluating the evidence of the complainant and substratum of story of the case of prosecution placed and proved by the witnesses so examined. Here, on facts, it has come on record that the deceased had a very short, that is, about three years' married life, but for half of the period, she was staying in her parental home. Evidence also shows that during this period, for the first period of one and half year, husband of the deceased was also residing at the parental home of the deceased as he was studying at Vasad. It is amply clear that prior to about one and half year, she was sent to her matrimonial home. Evidence also shows that out of this period of one and half year, CR.A/1057/2000 10/52 JUDGMENT married life of the deceased was peaceful for a period of one year. Impliedly therefore, it can be said that the mother-in-law, that is, the accused no.1 and sister-in-law, that is, accused no.2 may have started impeaching the deceased about her character during the period of last six months from the date of the incident. It has come in the evidence that the accused no.2 is married lady and during the days of the incident, she had come to the house of the deceased, being her parental home as she was to deliver a child. She was staying in the house of the deceased since about one and half months and prior to the incident before some days, she had delivered a child. These facts are not controverted. Therefore, it is submitted by Mr. Amin that the learned trial Judge was supposed to look into the circumstances emerging from the totality of the evidence led by the prosecution and the infirmities and lacunas left by the investigating officer. That the prosecution cannot take advantage of the weaknesses of the defence side and as such, the CR.A/1057/2000 11/52 JUDGMENT prosecution was under an obligation to bring home the charge beyond reasonable doubt by leading cogent and convincing evidence capable of linking the accused with the guilt. Material witness, that is, Lilaben, cousin sister of the deceased who was incidentally sister-in-law [Jethani] of the deceased had been declared hostile by the prosecution. Evidence that has come on record in the nature of contradiction or the answers given by this witness during the cross-examination by the Public Prosecutor when the Public Prosecutor was permitted to ask leading questions, should not be considered as reliable piece of evidence and the trial Judge was supposed to scan the evidence of this witness Lilaben, as according to the prosecution, she was present at the time when the incident had occurred. True it is, that Dineshbhai-PW 1, exh.14-brother of the deceased, who was the complainant and Leelaben-PW 4 are competent witnesses who can lead convincing evidence as to cruelty, they being close relatives, but as such, evidence of these two CR.A/1057/2000 12/52 JUDGMENT witnesses does not inspire confidence. Father of the deceased, PW-2, exh.19, examined by prosecution, of course, has stated about the mental cruelty administered to the deceased by both the accused, but this witness PW 2 has made material improvement and has attempted to implicate the accused persons by evolving a theory of one oral dying declaration made before him by the deceased. Therefore, it was risky for the trial Judge to take into account the version of PW 2 even as corroborative piece of evidence to the say of the PW 1- complainant Dineshbhai and PW 4-Leelaben. According to the prosecution, the deceased was impeached and tortured that she had developed illicit relations with her father-in-law and therefore, she was giving special treatment to her father- in-law; that she was taking care of her father- in-law with utmost love and affection and this taunting was going on since then and the deceased had informed her parents and close relatives prior to the incident. That on the date of the incident, there was some quarrel on CR.A/1057/2000 13/52 JUDGMENT the same issue between the deceased and the accused no.2 and the deceased committed suicide by pouring kerosene over her body from the plastic container which was there in their house. According to Mr. Amin, the prosecution is not clear as to when the deceased sustained burn injuries, whether the room or the house was bolted from inside or it was not bolted and the husband of the deceased and other relatives had opportunity to rush to the rescue of the deceased. At some place, it has come on record that the house was bolted from inside and the husband of the deceased-Laljibhai entered the house by making way through roof of the house. But none of the close relatives or neighbours, including Veljibhai or Vasantben, who claim that they had taken the deceased to the hospital, has supported the theory that the place where the deceased committed suicide was bolted from inside. Laljibhai-PW 7, husband of the deceased obviously has not supported the case of the prosecution. Panchnama of the scene of occurrence drawn by PSI, Sojitra - PW 8 also CR.A/1057/2000 14/52 JUDGMENT does not state anything about the condition of the roof of the place of which he had drawn panchnama and the said panchnama is also silent in this regard. This situation makes theory of cruelty placed by the prosecution doubtful. When the evidence as to mental cruelty is found weak type of evidence, then, the accused could not have been held guilty of the charge of offence punishable under Section 498A of I.P.C. The allegation made by the prosecution appears to be an afterthought otherwise, the deceased would have stated clearly in her statement recorded by the Executive Magistrate even though the injuries on the body of the deceased were severe. But that by itself would not be sufficient to draw inference that the deceased had committed suicide on account of mental cruelty administered to her by any of the accused. According to Mr. Amin, two material witnesses, that is, the complainant and mother of the deceased have attempted to improve the story before the trial court for the first time that prior to the incident, there was quarrel CR.A/1057/2000 15/52 JUDGMENT between the deceased and the accused no.2 and the accused no.2 had lifted the plastic container of kerosene and had threatened the deceased that she would commit suicide by making similar type of allegation that the deceased is having loose character and she leaves like a prostitute and because of such conduct of the accused no.2, the deceased apprehended that perhaps she may be held responsible if her sister-in-law commits suicide and therefore, the deceased poured kerosene over her body and set herself on fire. Mother and father of the deceased, that is, PW 2 and PW 3 have stated that the quarrel was picked up by the accused no.2 but the accused nos. 1 and 2, both had started the quarrel immediately prior to the incident. According to Mr. Amin, this theory is recorded in the police papers for the first time on 2nd October, that is, after lapse of 5th day, the day on which the statement of Lilaben came to be recorded. Till that date, there was nothing on record to show that there was nexus between the act of suicide and allegations CR.A/1057/2000 16/52 JUDGMENT that were being allegedly made against the deceased. No independent witnesses have been examined nor the prosecution has brought out any material document. It is risky to accept the version of the witnesses examined by the prosecution including the hostile witness Lilaben for accepting the case of the prosecution that the deceased was tortured or otherwise impeached as alleged by the prosecution. When it has come in evidence that there is a big difference of age between the deceased and her father-in-law, her cousin sister who is her sister-in-law [Jethani] residing with her only could have brought this fact to the notice of the police immediately after the incident. If the story that, the quarrel had occurred on the day on which the incident occurred between the deceased and the accused would have been unfolded by her to the parents of the deceased immediately after the incident when they were there in the hospital, then, these three witnesses,that is, the complainant PW 1, PW 2 and PW 3 could have CR.A/1057/2000 17/52 JUDGMENT stated this story in their respective police statement and the question of making material improvement by these three witnesses would not have arisen. As such, evidence of Vasantben and Raijibhai does not take care of the case of the prosecution further so far as the case of cruelty is concerned and even it was not possible for the learned trial Judge to say that either Vasantben or Raijibhai were independent witnesses. On the contrary, it has come on record that they belonged to one family and therefore, the accused ought not to have been held guilty of the charge of offence punishable under Section 498A of I.P.C. 10.While arguing this point, Mr. Amin has also attempted to differentiate the case of the accused nos. 1 and 2. According to Mr. Amin, evidence as to accused no. 2 Hansaben is very weak, because, Hansaben resides at her in-laws' house and prior to about one and half month of the date of the incident, she had come to reside with her parents, that is, the house of the in- laws of the deceased as she was to deliver a CR.A/1057/2000 18/52 JUDGMENT child. The complainant Dineshbhai does not say anything in his deposition before the Court that the accused no.2 is also responsible for making serious allegation as to the character of the deceased. Though he has stated something in his complaint, that is, the FIR recorded by P.S.I., Sojitra, but in his deposition, he has not proved that part of the complaint. The complainant would not have missed such crucial fact while deposing before the Court if accused no.2 was really responsible for making serious allegations as to the character of the deceased. Therefore, according to Mr. Amin, the case is comparatively more weak qua the accused no.2 in reference to the charge of Section 498A of I.P.C. 11.Third fold of the argument of Mr. Amin is that if this Court is of the view that there is some evidence which can be said to be reliable piece of evidence against the accused no.1 and her conduct qua deceased and that she is responsible for mental cruelty administered to the deceased, even then, none of the accused including the CR.A/1057/2000 19/52 JUDGMENT accused no.1 could have been held guilty of offence punishable under Section 306 of I.P.C., because, there is no adequate, good and convincing evidence under which a presumption provided under Section 113A of the Evidence Act could have been raised. Ultimately, presumption which can be drawn under Section 113A of the Evidence Act is under the domain of the learned trial Judge and some discretion is given to the Court and the Court should assign some good reasons as to why and in what circumstance, the learned trial Judge is inclined to raise a presumption contemplated under Section 113A of the Evidence Act. Each presumption that can be raised under the law or under the given factual circumstance is rebuttable presumption. The accused is competent to rebut the presumption raised against him. But in the present case, there is no evidence which can be said to be sufficient to raise a presumption against any of the accused though the deceased succumbed to severe burn injuries in the first 7 years of her married life. It is therefore submitted that CR.A/1057/2000 20/52 JUDGMENT as such, this is not a case of physical cruelty by her husband or any of the accused. There is nothing on the record to show that when for the first time, character of the deceased was assailed seriously by any of these two accused and when there is no nexus between the alleged act of suicide, impeachment and/or allegation made against the character of the accused, it would not be safe for the Court to raise a presumption and even then, in the present case, the learned trial Judge has committed grave error in raising such presumption. While developing the argument, Mr. Amin has placed reliance on the ratio of the following three decisions:- [1] Ramesh Kumar Vs. State of Chhattisgarh, [2001] 9 Supreme Court Cases 618. [2] State of West Bengal Vs. Orilal Jaiswal and another [[1994] 1 Supreme Court Cases 73. [3] Hans Raj Vs. State of Haryana [2004] 12 Supreme Court Cases 257. CR.A/1057/2000 21/52 JUDGMENT 12. In the case of Ramesh Kumar, reported in [2001] 9 SCC 618, the Apex Court was dealing with the case of the husband convict and on facts, the Apex Court observed that solely because the accused was found guilty under Section 498A, he should not necessarily be held guilty under Section 306 on the basis of the same evidence. Of Course, the facts are materially different in the cited decision but in para-12 of the judgment, the Apex Court has observed as under:- “xxx Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that [i] the woman has committed suicide, [ii] such suicide has been committed within a period of seven years from the date of her marriage, [iii] the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availabiity of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before CR.A/1057/2000 22/52 JUDGMENT the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption.