CR.A/444/2005 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 444 of 2005 With CRIMINAL APPEAL No. 2408 of 2005 With CRIMINAL APPEAL No. 2410 of 2005 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 ? ========================================================= GHUSABHAI RAISANGBHAI CHORASIYA & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= APPEARANCE: CRIMINAL APPEAL NO.444 OF 2005 Mr.P.M.Lakhani, learned Advocate for Appellants Mr.M.R.Mengdey, learned Addl. Public Prosecutor for Respondent CRIMINAL APPEAL NO.2408 OF 2005 & CRIMINAL APPEAL NO.2410 OF 2005 Mr.M.R.Mengdey, learned A.P.P. for Appellant. Mr.P.M.Lakhani, learned Advocate for Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.A/444/2005 2/34 JUDGMENT and HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/07/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. A charge-sheet came to be filed against in all six accused for the offences punishable under Sections 306, 498 (A), 201 read with Section 114 of the Indian Penal Code. Those six accused are viz., 1)Ghusabhai Raisingbhai Chorasia; 2)Rakesh Ghusabhai Chorasia; 3) Bakuben w/o. Ghusabhai Chorasia; 4) Jasuben @ Gaduben Rakeshbhai; 5) Sangitaben w/o. Vijaybhai and 6) Vijay Ghusabhai Chorasia. Thereafter, 7th accused-Kailash being juvenile was not charge-sheeted along with these accused in the Court of learned Judicial Magistrate First Class, Jamnagar. The said Criminal case was committed to the Court of learned Sessions Judge at Jamnagar and was registered as Sessions Case No.62 of 2004. Learned Additional Sessions Judge, Jamnagar vide his judgment and order dated 15th February, 2005 convicted accused Nos.1 to 4 for the above said charges and acquitted above accused Nos.5 and 6. Accused Nos.1 and 2 were CR.A/444/2005 3/34 JUDGMENT sentenced to undergo imprisonment of two years each and accused Nos.3 and 4 were sentenced to undergo one year imprisonment for the offence punishable under Section 498 (A) of the Indian Penal Code. For the offence punishable under Sections 306 of Indian Penal Code read with Section 114 of the Indian Penal Code, accused No.1 was sentenced to undergo imprisonment of five years and to pay a fine of Rs.250/-in default to undergo one month imprisonment; accused No.2-Rakesh Ghusabhai was sentenced to undergo seven years imprisonment and to pay a fine of Rs.500/- in default to undergo imprisonment of two yeas; accused No.3- Bakuben was sentenced to undergo three years imprisonment and to pay a fine of Rs.250/- in default to undergo one month imprisonment; accused No.4- Jasuben @ Gaduben was sentenced to undergo three years imprisonment and to pay a fine of Rs.250/- in default to undergo further imprisonment of one month. 2. Accused Nos.1 to 4 above also were convicted for the offence punishable under Section 201 of the Indian Penal Code and each of them were sentenced to undergo simple imprisonment of six months. As stated above, original accused Nos.5 and 6 were acquitted by the learned trial Judge of all the charges. CR.A/444/2005 4/34 JUDGMENT 3. Being aggrieved, Criminal Appeal No.444 of 2005 has been preferred by original accused Nos.1 to 4 under Section 374 of the Code of Criminal Procedure against the judgment and order of conviction and sentence as aforesaid. 4. Criminal Appeal No.2408 of 2005 is preferred by the State under Section 377 (1) of the Code of Criminal Procedure against accused Nos.1, 2, 3 and 4 for enhancement of sentences awarded to each of the accused. 5. Criminal Appeal No.2410 of 2005 is also preferred by the State against original accused Nos.5 and 6 under Section 378 (1) of the Code of Criminal Procedure against the judgment and order of acquittal in respect of accused Nos.5 and 6 as stated above. 6. As per the brief facts of the case, victim- Biniben – deceased in the incident was wife of accused No.2-Rakesh Ghusabhai. Accused No.1- Ghusabhai is father-in-law; accused No.3-Bakuben is mother-in-law of the deceased-Biniben; accused No.4- Jasuben @ Gaduben is the accused against whom it is CR.A/444/2005 5/34 JUDGMENT alleged by the prosecution that accused No.2-Rakesh Gusabhai had illicit relation and that was the cause to execute cruelty upon the deceased and the status of Jasuben was as kept of accused No.2. Accused No.6-Vijaybhai Ghusabhai Chorasia is elder brother of accused No.2 and accused No.5-Sangitaben is wife of accused No.6-Vijaybhai Ghusabhai Chorasia. 7. As per the prosecution case, stating in brief, before the incident which occurred at about 4th March, 2004 22/30 hours, about more than seven years deceased-Biniben had married to accused No.2-Rakesh according to caste custom. When she joined her in- laws house, all the five accused were staying together and accused No.2 was doing miscellaneous work. Her husband i.e. accused No.2 then started quarreling and was not doing thereafter any work and was in habit of taking liquor and was a gambler. According to prosecution case when accused No.2 was bachelor, he had illicit relation with accused No.4, who had married to someone, but on account of accused No.2 had obtained divorce. Accused No.4 freely was moving in society with accused No.2 – husband of the deceased. Out of the wedlock, Biniben had two children. Accused Nos.1 and 3 parents-in-law of CR.A/444/2005 6/34 JUDGMENT Biniben were residing with accused Nos.2 and 4 and were executing cruelty upon deceased. In-laws of Biniben belong to a village situated in Uttar Pradesh; while her in-laws were residing in Jamnagar District in Gujarat. Once when elder child of Biniben was three months of age, she was driven out by accused, and she was staying with her parents, but leaders of the caste and other relatives executed writing and thereafter she resumed her in-laws house. Thus, the compromise had taken place, but thereafter also accused No.4 and accused No.2 did not refrain from co-habitation and on account of that cruelty was executed upon Biniben. In one public fare at Tarnetar, accused No.4 openly threatened deceased that accused No.4 was going to stay with accused No.2 and that deceased-Biniben would be driven out after giving her divorce. According to allegation, accused No.3 was offering kerosene to the deceased for committing suicide. Even when deceased was doing some labour work and was earning for her kids, her in-laws robbed her of meager amount of labour. Ultimately, on 14th March, 2004 accused No.1-Ghusabhai Raisingbhai declared before ASI of Rajsitapur Outpost situated in Surendranagar District that on the terrace of their house, Biniben had consumed poison CR.A/444/2005 7/34 JUDGMENT and had died. This was entered in Dhragadhra Taluka Police Station in diary at Entry No.15 of 2004 at 13/30 hours. Rajsitapur was the native of accused and the incident occurred in Jamnagar District and therefore this entry was forwarded to Jamnagar where it was registered as Accidental Death Entry. Mr.R.P.Rana of Dhragadhra recorded the statement of accused No.1 in this respect. Ultimately, this A.D. was received by A-Division Police Station, Jamnagar, which was registered as A.D.No.28 of 2004 and PSI, Mr.Balvantrav Jivaji Mohite was in-charge of the inquiry. In inquiry, none of the relative of the deceased could be found by the Police Officer because after the incident had happened at Jamnagar, the dead body of Biniben was brought to Rajsitapur and was cremated at Rajsitapur without informing the parents of the deceased who were residing at Uttar Pradesh at the relevant juncture. Ultimately, on 17th March, 2004, Champaben-mother of the deceased having come to know about the death of her daughter, came to Jamnagar and offered her complaint in writing which is at Exh.92. A crime came to be registered against these accused and Police Sub Inspector, Mr.G.K.Vank was entrusted with the investigation alongwith inquiry of accidental death who then as stated above CR.A/444/2005 8/34 JUDGMENT after investigation submitted a charge-sheet before the learned Judicial Magistrate First Class and the case was committed to the Court of Sessions. 8. Learned Additional Sessions Judge, Fast Track Court No.9 at Jamnagar framed charged against the accused on 16th August, 2004 stating that all the accused in abetment of each other taunting deceased and executing physical as well as mental cruelty and kept suspicion on character of Biniben committed offence under Section 498(A) of the Indian Penal Code by which deceased-Biniben committed suicide and therefore all the accused had committed offence punishable under Sections 306 read with Section 114 of the Indian Penal Code. It was also alleged that all the accused in abetment of each other disposed of dead body of Biniben hurriedly at Rajsitapur and therefore each of the accused was responsible for the offence punishable under Section 201 read with Section 114 of the Indian Penal Code. 9. All the six accused pleaded not guilty to the charge and hence they were tried by learned Sessions Judge. CR.A/444/2005 9/34 JUDGMENT 10. To prove its case, prosecution examined as many as 25 witnesses as under. P.W.1 Dr. Subhashchandra Shivshankar Bhatt Ex.49 P.W.2 Hitendrasinh Batubha Ex.54 P.W.3 Bipinbhai Valjibhai Ex.55 P.W.4 Samuben Valjibhai Ex.56 P.W.5 Shankarlal Parkhiya Kutchhi Ex.57 P.W.6 Kanchanben Sureshbhai Ex.58 P.W.7 Dudhiben w/o. Shantibhai Ex.59 P.W.8 Shantaben w/o. Kashiram Ex.60 P.W.9 Daxaben Shantilal Ex.62 P.W.10 Jagjivan Mathurdas Ex.64 P.W.11 Sahdevsinh Mulubha Ex.69 P.W.12 Dinubhai Nagjibhai Ex.70 P.W.13 Hansraj Gordhanbhai Ex.71 P.W.14 Sureshbhai Dhusabhai Ex.72 P.W.15 Sanjay Bhavanbhai Ex.73 P.W.16 Savitaben w/o. Bhavanbhai Ex.74 P.W.17 Natubha Hirabhai Ex.75 P.W.18 Champaben w/o. Devshibhai Ex.78 P.W.19 Kanaiyabhai Devshibhai Ex.79 P.W.20 Vaijantiben w/o. Devshibhai Ex.80 P.W.21 Miraben Devshibhai Ex.83 P.W.22 Kiritsinh Jasubha Ex.85 P.W.23 Surjibhai Jivaji Ex.87 P.W.24 Balvantrao Bhikhajirao Mohite EX.91 P.W.25 Jevkubhai Kathadbhai Ex.95 The prosecution also submitted documentary evidence as under: CR.A/444/2005 10/34 JUDGMENT SR. NO. EXHIBIT CONTENTS 01 Exh.50 Medical Certificate issued by Dr.Subhash Bhatt of deceased-Biniben 02 Exh.51 Medical case papers of the treatment given by Dr.Subhash Bhatt to deceased – Biniben 03 Exh.52 The Panchnama of scene of offence drawn in presence of the Panchs. 04 Exh.63 Application dated 16/09/2002 of deceased-Biniben sent to the Secretary, Vikas Vidhyalay, Vadhvan. 05 Exh.65 An agreement dated 20/01/2004 executed by Biniben on the stamp paper of Rs.20/- 06 Exh.66 An agreement executed by Jasuben Karna on the stamp paper of Rs.20/- 07 Exh.67 A document of divorce executed by accused No.2-Rakesh Ghusabhai with deceased-Biniben Devsinhbhai on the stamp paper of Rs.50/-. 08 Exh.68 A xerox copy of the Register of Stamp Vendor-Panelia. 09 Exh.86 A true copy of the Station Diary Entry No.16 whereby the offence was registered against the accused being C.R.No.I-83 of 2004. 10 Exh.88 A report of the City A-Division Police Station with regard in connection to the record came for registration of offence vide Zero Number of Dhragadhra Taluka Police Station. 11 Exh.92 Original complaint (F.I.R.) 12 Exh.93 A Yadi written for registration of offence. 13 Exh.96 A Yadi sent to Chief Judicial Magistrate, Jamnagar for addition of Section 201 of the Indian Penal Code. 14 Exh.97 A Yadi sent to Police Inspector, Jamnagar from PSO, Dhragadhra with regard to sending of papers of the incident in question. CR.A/444/2005 11/34 JUDGMENT SR. NO. EXHIBIT CONTENTS 15 Exh.98 A report submitted by ASI, Rajsitapur to PSI, Dhragadhra Taluka. 16 Exh.99 A true copy of the contents of Station Diary of Dhragadhra Police Station. 17 Exh.100 A true copy of the complaint lodged by Kanaiyalal Devsinh against the accused. 18 Exh.101 Entry of Register of Accidental Death of Dhragadhra Police Station. 19 Exh.102 A Yadi sent to Medical Officer for knowing the age of the accused. 20 Exh.103 Original Case Papers of accused Kailash @ Gado. 21 Exh.104 A Yadi sent for arrest of the accused. 22 Exh.105 A copy of the application sought for Sanction of arrest of the accused. 23 Exh.106 A copy of the sanction for arrest of the accused. 24 Exh.107 A Yadi sent for making entry of arrest of the accused. 25 Exh.108 A copy of the application for filing of the charge-sheet. 26 Exh.109 A copy of the sanction given for filing of the charge-sheet. Thereafter, further statement was recorded of each of the accused and after denying the allegation in toto, it was explained by the accused that in-fact relatives of Biniben were informed about her death, though Biniben was divorced by accused No.2. Her cremation was performed at Rajsitapur in the presence of relatives and Sarpanch and as per the say of caste leaders that they had not committed any offence. In defence accused examined defence CR.A/444/2005 12/34 JUDGMENT witness-Amrutlal Harjivanbhai Sachania, who produced on record BPL Registered Card of 1997 denoting that all the accused except accused No.2 were staying separately and that accused Nos.5 and 6 also was staying separately. Learned trial Judge thereafter heard the arguments of prosecution and defence in length and came to above referred conclusion and hence the above mentioned three appeals. Hence, all the three appeals have arisen from same judgment and order and are heard together and is being decided by this common judgment. 11. We have heard Mr.P.M.Lakhani, learned Advocate for the appellants in Criminal Appeal No.444 of 2005 extensively and he has placed on record written argument as well which we have considered. We have also heard Mr.P.M.Lakhani, learned Advocate for the respondents in Criminal Appeal No.2048 of 2005 and Criminal Appeal No.2410 of 2005. Mr.Mengdey, learned Additional Public Prosecutor was heard for the appellant – State in Criminal Appeal No.2408 of 2005 and Criminal Appeal No.2410 of 2005. Learned A.P.P., was also extensively heard on behalf of the respondents-State in Criminal Appeal No.444 of 2005. CR.A/444/2005 13/34 JUDGMENT 12. We have undertaken a complete and comprehensive appreciation of all vital feature of the case. We have scanned through the entire evidence documentary as well as oral recorded during trial. We have carefully re-appreciated the evidence on record. Entire circumstances appearing on record have been considered threadbare by us with reference to the broad and reasonable probabilities arising out of the appreciation of evidence recorded during trial. We have evaluated the contention extensively raised by appellants and respondent in all the three appeal. 13. While re-appreciating the evidence and coming to the conclusion in respect of Criminal Appeal No.444 of 2005, it becomes clear that we have to take into account following three circumstances and we have to examine whether these circumstances are proved beyond doubt by prosecution. i) Whether death of Biniben is proved to be unnatural death and, if so, whether all or any of the accused drove the deceased to commit suicide in abetment. ii)Whether Biniben was subjected to cruelty by CR.A/444/2005 14/34 JUDGMENT the accused as envisaged by Section 498 (A) of the Indian Penal Code. iii)Whether knowing fully well that Biniben had committed suicide on account of cruelty executed by them, accused cremated dead body hurriedly without informing relative of the deceased and thereby caused the vital evidence to disappear. 14. So far as the death of Biniben is concerned, first and foremost evidence trustworthy and unimpeachable is the evidence in the set of documentary evidence which is placed on record at Exh.99, whereby accused No.1 himself declared before Dhragadhra Police Station on 14th March, 2004 that Biniben w/o. Rakesh Kumar consumed poison at the terrace of his house and committed suicide. From this declaration an entry in Station Diary was made which is at Exh.99. Not only that Exh.97 denotes that Dhragadhra Police Station Official, ASI, Mr.R.P.Rana had recorded statement of accused No.1 which was forwarded to Police Inspector, City A-Division Police Station, Jamnagar. This fact is amply proved by Prosecution Witness No.25-Jevkubhai Kathadbhai examined at Exh.95. Exh.88 is the Station Diary CR.A/444/2005 15/34 JUDGMENT entry of City A-Division Police Station of Jamnagar in respect of accidental death No.28 of 2004 wherein also it is mentioned that accused No.1 informed Police about unnatural death of Biniben. From this A.D., Prosecution Witness No.24-Balvantrav Bhikhajirav Mohite examined at Exh.91 lodged an inquiry and on 17th March, 2004, mother of the deceased offered a complaint. Accidental Death has recorded at Dhragadhra and thereafter forwarded to Jamnagar City A-Division Police Station proves beyond reasonable doubt that accused No.1 himself informed Police that Biniben had consumed poison at the terrace of their residence and hence when this fact is amply proved that deceased – Biniben met with unnatural death and that too consuming poison at the terrace of residential house of accused at Hanuman Tekri, Jamnagar. This fact is not controverted by the defence but this is an admitted fact that deceased-Biniben died having consumed poison and was staying at the terrace of residential house of the accused. Further evidence in this respect is Panchnama Exh.52 of the scene of offence. This Panchnama is admitted by the defence and proved beyond doubt alongwith the contents. In the said Panchnama, the scene of offence has been shown by CR.A/444/2005 16/34 JUDGMENT accused No.1 – Ghusabhai Raysing and that scene of offence is the terrace of the residential house of the accused. Panchnama denotes that through the stair there is terrace of 12 x 10' and all around the terrace there is a parafit of about 3'. At the northern side, one iron cot was placed. There were utensils and other materials for cooking and in the presence of Panchas accused No.1 declared that deceased-Biniben consumed poison at that place. Now, there cannot be any better evidence to prove that deceased-Biniben died unnatural death and by consuming poison. This fact is not controverted by the defence. 15. So far as, therefore, point No.1 is concerned, we have no hesitation at all to come to the conclusion that Biniben died on account of consuming poison and she was residing at the terrace of the residential house of the accused. 16. So far as point No.2 about cruelty is concerned, cruelty as envisaged by Section 498 (A) of the Indian Penal Code could be proved by the prosecution beyond doubt. True it is that cruelty means willful conduct which is of such nature as is CR.A/444/2005 17/34 JUDGMENT likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. We have scanned the evidence in this respect and crystal clear evidence which could not be thrown or ignored is the evidence of witness-Daxaben Shantilal Shah examined as Prosecution Witness No.9 at Exh.62. She stated that she was working as social worker at Vikas Vidhyalay (Vadhvan) Surendranagar and was doing counseling work in family disputes. On 16th September, 2002, deceased-Biniben visited her and had given one written application. That application is at Exh.63. Witness further stated that in pursuance of application containing allegation of harassment against the husband and in-laws of Biniben, a postcard was written to accused No.2. He identified the signature of Biniben at Exh.63 and contents. Exh.63 therefore stands proved in all respect. Allegation of cruelty about harassment by her husband and instigation by parents-in-law of the deceased transpires effortlessly. Allegation that accused No.2 had illicit relation with accused No.4 is also deposed by this witness and as a contents of Exh.63 is proved beyond doubt. Not only that she also deposed that on 28th October, 2002 Biniben and her husband i.e. accused No.2 both visited her and stated CR.A/444/2005 18/34 JUDGMENT that a compromise had arrived at between them. This witness is extensively cross-examined by the defence, but nothing is brought about to disbelieve that Exh.63 was not preferred by the deceased and that in Exh.63 there were no allegations of harassment and cruelty. Therefore, what is proved beyond doubt by this deposition is cruelty mentally as well as physically executed by accused No.2 upon the deceased and accused No.2 had illicit relation with other woman. Necessary it is to note that in Exh.63 application, deceased stated in unequivocal terms that in fare held at Tarnetar accused No.4, who had illicit relation with accused No.2 threatened her to the extent that accused No.4 would remain attached to accused No.2 in any circumstances and would be staying with them only. A statement of the deceased in the said Exh.63 that she was threatened that accused No.2 shall divorce the deceased. This is not a circumstantial evidence denoting cruelty executed upon the deceased by accused Nos.1 to 4, but direct and reliable evidence. 17. In addition to this, very important deposition is the evidence of Miraben Devsinhbhai examined as Prosecution Witness No.21 at Exh.83. In CR.A/444/2005 19/34 JUDGMENT her deposition, Miraben categorically stated that whenever – Biniben visited her house, she used to make grievance that her husband was physically beating her and therefore she used to go to the house of Miraben Devsinhbhai, who was sister of the deceased. In an unequivocal terms in paragraph No.3 of her deposition, this witness-Miraben stated that before Biniben died she had a talk with this witness. According to this witness, deceased-Biniben stated that she was speaking from Rajsitapur and after Holly she would be coming to Sarangpur. Witness stated that Biniben conveyed to her that she was beaten by her in-laws and driven out of the house and she was given divorce. Witness cross-examined in detail by the defence, but there is nothing in the cross- examination which would shake the testimony of witness-Miraben. Evidence of Champaben Devsinhbhai mother of the deceased examined as Prosecution Witness No.18 at Exh.78 and witness-Kanaiyabhai Devsinhbhai examined as Prosecution Witness No.19 at Exh.79-brother of the deceased is required to be seen. From the depositions of these three witnesses, it has been proved beyond doubt that deceased-Biniben was harassed by accused No.2 and remaining three accused. Very strange and curious circumstances have CR.A/444/2005 20/34 JUDGMENT been surfaced in the prosecution that accused No.4- Jasuben with whom accused No.2 husband of the deceased had illicit relationship was staying with accused No.2; while deceased was staying at the roof and terrace of the house having two minor kids. Plight of a woman, belong to very economical poor strata having two kids, can be imagined when she was doing her own labour work was driven out to terrace with two kids and accused No.2 openly was staying with some other lady. In our humble view, this circumstance alone is sufficient to be labelled the conduct of accused Nos.1 to 4 to be cruelty as defined under Section 498(A) of the Indian Penal Code to drive a woman to commit suicide. 18. But, this is not the end. Yet there is evidence on record indicating conduct of the accused establishing cruelty as envisaged by Section 498 (A) of the Indian Penal Code. At Exh.67 a writing alleged to have been executed by deceased is produced denoting that Biniben was giving divorce to accused No.2 and that she had no objection if accused No.2 would marry to accused No.4. This writing is dated 20th January, 2004. One more writing is produced on record of the same date whereby it is a declaration CR.A/444/2005 21/34 JUDGMENT of accused No.4 that she intended to marry accused No.2 and whenever such marriage would take place she would inform everybody in advance. While Exh.67 is the document of divorce wherein according to caste and custom as mentioned in such document divorce took place between accused No.2 and Biniben. Exh.65, 66 and 67 are very curious documents and leads us to believe that the conduct of the accused in getting this document executed corroborates the say of prosecution that cruelty was executed upon Biniben. However, we have also noticed that signature of Biniben in Exh.63 which is proved by witness-Daxaben defers from signature of Biniben in Exh.67. There are no witnesses on behalf of Biniben in this document at Exh.67. During trial, attempt was made by the defence to take shelter of this document (Exh.67) to take a stand that Biniben was divorced wife of accused No.2 and therefore there would not be any application of Section 498(A) of the