CR.A/1250/2003 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1250 of 2003 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 ? ========================================================= RAJESHBHAI DITIABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : None for Appellant(s) : 1, MS HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 26/03/2008 ORAL JUDGMENT 1. The appellant is the original accused. He was charged for offences punishable under Sections 498-A, 306 of the Indian Penal Code. Other CR.A/1250/2003 2/10 JUDGMENT accused who were also charged with similar offences were acquitted by learned Sessions Judge. The appellant herein was convicted for both the offences. By impugned judgement dated 30.9.2003 rendered in Sessions Case No. 62/2001, the appellant was sentenced to rigorous imprisonment of three years for offence punishable under Section 498-A of the Indian Penal Code and of seven years for offence punishable under Section 306 of the Indian Penal Code. 2. Learned Judge framed the charge at exh.4. From the charge it appears that allegations against the appellant were that deceased Shobaben was married to the appellant on 26.5.1999. There were disputes between the appellant, other family members and the deceased due to which she was physically and mentally tortured, on account of which she committed suicide by jumping into the well at any time between the evening of 13.8.1999 till morning of 14.8.1999. 3. It may be noted that on 14.8.1999, the appellant intimated to the police station about the death of his wife by drowning. He had stated that in the evening of 13.8.1999, he and his wife had gone out to their field for collecting fodder for the cattle. Both of them had cut some grass and prepared one stack. At about 2 O' clock therefore, he collected grass and went home and CR.A/1250/2003 3/10 JUDGMENT after leaving it at home, he came back at about 3 O' clock but did not find his wife there and he inquired with some people nearby, also inquired with his in-laws but did not find his wife anywhere. In the morning, his father who had gone to the field came back with the news that his wife's body is found in a well on their field. 4. Dr. Champakbhai Madhavbhai Vasava-PW1(exh.9) had carried out the postmortem of body of the deceased girl. He was of the opinion that the death had occurred due to drowning and would have occurred about 24 hours before. He stated that on the body of the deceased, there were no injury marks found. 5. Vikasbhai Mohanbhai Vasava-PW2(exh.13) is brother of the deceased girl. He had lodged complaint before the police suspecting that his sister was strangulated and thrown into the well. In his deposition, he stated that on 10.8.1999 his sister and her husband had come to their house and stayed for two days and left on 12th August in the afternoon. On 13th August in the evening the appellant had come to his village and informed that Shobaben is missing. Next day in the morning, he again met the appellant who told him that Shobaben's body was found from the well. He further stated that after the marriage whenever Shobaben used to CR.A/1250/2003 4/10 JUDGMENT come to his house, she would complain that her husband beats her after consuming liquor and drives her out of the house. 5.1 In the cross examination, this witness however, was confronted with his statement before the police wherein he had stated that his sister had not complained of any problem at her in-laws house and had not complained about any beating nor had she complained of beating by in- laws. Though the witness denied having stated so in his statement before the police, defence brought about the contradiction and improvement through the deposition of Babuji Gopalji Chavda-PW4(exh.20), the police officer who had carried out the investigation. The witness in- fact asserted that in his complaint he had in- fact stated that her husband used to consume liquor and drive her out of the house at night. However, learned Judge has recorded that upon perusal of the complaint exh.14, such a statement is not to be found. 6. Manishaben Mohanbhai Vasava-PW3(exh.19) was the mother of the deceased girl. She also gave similar account of the incident of 13th and 14th August, 1999. She stated that mother-in-law of her daughter used to treat her with cruelty due to which the incident had taken place. Shobaben used to tell her about such cruelty. Shobaben used to tell her that her in-laws do not like CR.A/1250/2003 5/10 JUDGMENT the food prepared by her due to which her in- laws as well as her husband were quarelling with her every day and used to drive her out of the house at night. 6.1 In her cross examination, the witness stated that her daughter and son-in-law had visited her house three times after marriage. Both of them used to come together and go back also together. She stated that a day before the incident also they had come to her house. In the cross examination, she further stated that except for asking her name, the police did not ask anything else and entire statement was prepared by police without her stating anything. She however, denied that she did not in her police statement say that her daughter Shobaben's in-laws and husband used to drive her out of the house at night or that Shobaben's in- laws did not eat the food prepared by her. Through the evidence of witness Babuji Gopalji Chavda-PW4(exh.20), defence has been able to establish that such statements were not made by witness before the police. 7. Babuji Gopalji Chavda-PW4 was at the relevant time discharging his duties as CPI, Rajpipla. He had carried out the investigation pursuant to the complaint lodged. In the cross examination of this witness, as already noted, earlier the defence has been able to bring on record certain CR.A/1250/2003 6/10 JUDGMENT improvements and contradictions in the deposition of Vikasbhai Mohanbhai Vasava-PW2 and Manishaben Mohanbhai Vasava-PW3. 8. Kesarsinh Mojisinh Yadav-PW5(exh.21) was the Officer who had taken down the complaint of Rajeshbhai. 9. During the course of investigation, panchnama of scene of offence was drawn which was produced at exh.16. Panchnama shows presence of well. It was covered by parapet. The total length of parapet is recorded as 10 ft., out of which 6 ft. is below the ground. The well was about 30ft. deep and had water column of height of 10 ft. To the west of the well at a distance of about 100 ft. some grass is shown to have been cut in a patch of 45 ft. long and 5 ft. wide. One “Dattarda”(implementing of cutting grass) was also found lying there. 10.From the above evidence on record, the prosecution sought to establish the charge against the accused persons. 11.As already noted, learned Judge acquitted the other two accused, however, convicted the appellant herein for offences punishable under Sections 498-A and 306 of the Indian Penal Code. 12.Though it was sought to be suggested by defence CR.A/1250/2003 7/10 JUDGMENT that death of the girl was accidental and not suicidal, such theory does not appear to be valid. Firstly as noted, earlier well was covered by concrete parapet, total length of which was noted to be 10 ft. Out of this, 6 ft. of constructed wall was found under the well meaning thereby well was covered with parapet of about 4 ft. high. It was thus difficult for an adult person to fall down accidentally. Secondly, there was no reason for the deceased to have approached the well since even as per the defence she was at that time collecting fodder for cattle and not fetching the water. Under the circumstances, it would firmly be established that deceased died by committing suicide. Question however, remains whether the appellant was guilty of having treated her with cruelty and whether his treatment was such which drove the deceased to commit suicide so as to punish the appellant for offence punishable under Section 306 of the Indian Penal Code of having abated suicide. 13.To my mind entire evidence led by prosecution is sketchy, insufficient and incoherent. As noted, there were only two witnesses who could through some light about the circumstances under which the deceased committed suicide. Vikasbhai Mohanbhai Vasava-PW2 who was the brother of the deceased tried to suggest that appellant did not like the deceased girl and that therefore, he CR.A/1250/2003 8/10 JUDGMENT used to treat her with cruelty. He used to beat her up and drive her out of the house at night. However, he did not say any of these things in his statement before the police. In-fact, in his statement before the police, he stated that when his mother asked the deceased whether she is being beaten up, the deceased did not reply. The deceased had never complained about the ill- treatment by in-laws during her stay. 14.Thus there are material contradictions and improvements in the deposition of Vikasbhai Mohanbhai Vasava-PW2. 15.Turning to the deposition of mother of the deceased, Manishaben Mohanbhai Vasava-PW3 also, I find that evidence of the witness is not entirely reliable. To begin with, this witness only stated that in-laws and her daughter used to ill treat her and did not consume the food prepared by her. In the cross examination, she agreed that her daughter and son-in-law used to visit her house after the marriage. She stated that police prepared the statement without her assistance. This witness had also made material improvements in her deposition and in her statement before the police never stated that the in-laws of the deceased were ill-treating her and did not like the food prepared by her. 16.Thus quite apart from material improvements CR.A/1250/2003 9/10 JUDGMENT made by both the witnesses in their depositions, there are internal and intrinsic contradictions between the two versions given by witnesses also. 17.As per Vikasbhai Mohanbhai Vasava-PW2, the appellant did not like the deceased and therefore, used to ill-treat her and beat her up under the influence of alcohol and drive her out of the house. As per Manishaben Mohanbhai Vasava-PW3, it was in-laws of the deceased who ill-treated her and this was on account of the fact that they did not like the food prepared by her. 18.As already noted, earlier both the witnesses have made significant improvements in their depositions before the Court, earlier never having stated these things before the police. Even otherwise their versions conflict with each other. 19.Under the circumstances, I find that prosecution failed to establish that appellant had treated his wife with cruelty. More importantly, there was total insufficient and unreliable evidence to hold the appellant is responsible for the suicide committed by his wife. His version that two had gone together to collect fodder for the cattle is corroborated from the panchanama of the scene of offence were CR.A/1250/2003 10/10 JUDGMENT a “Dattarda” and some freshly cut grass is found near the well. 20.Considering all these aspects of the matter, I find that it would be unsafe to base conviction of the appellant on the evidence produced on record. 21.Conviction of the appellant is therefore, set aside. Impugned judgement is quashed. Appellant be released forthwith if not required in any other criminal case. Appeal succeeds. Same is disposed of accordingly. (Akil Kureshi,J.) (raghu)