CR.A/452/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 452 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= KAMLESHBHAI LALABHAI PARMAR - Appellant Versus THE STATE OF GUJARAT - Respondent ========================================================= Appearance : MR TEJASH BAROT for Appellant. MR UR BHATT, APP, for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 15/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/452/2005 2/14 JUDGMENT The appellant, original accused in Sessions Case No. 302/2004, has preferred this appeal challenging his conviction recorded by the learned Additional Sessions Judge, Fast Track Court, Dahod, on 2.12.2004, for the offences punishable under Sections 306 & 498-C of the Indian Penal Code. The appellant was sentenced to undergo R.I for ten years and to pay a fine of Rs.500/-, in default of payment of fine, S.I for three months, for the offence punishable under Section 306 IPC, and to undergo R.I for three years and to pay a fine of Rs.300/-, in default, R.I for three months, for the offence punishable under Section 498-C of IPC. 2. The prosecution case, in nutshell, is as under:- 2.1 The appellant-accused married to deceased Lilaben before about 3-4 years from the date of the incident. On 29.10.2003 at about 10.00 A.M., on account of cruelty and ill-treatment caused to her by the appellant-accused, Lilaben committed suicide by drowning in a well. It is the case of the prosecution that the accused maintained illicit relation with CR.A/452/2005 3/14 JUDGMENT some lady and only on account of that, deceased Lilaben was meted out with cruelty and ill-treatment by the accused. Badiyabhai Rupabhai, father of deceased Lilaben, therefore, lodged FIR before Deputy Superintendent of Police, Dahod in connection with this offence. The FIR was got registered and police commenced investigation. The statements of the material witnesses were recorded. The dead-body of Lilaben was sent to hospital for post-mortem examination. Necessary panchnamas were drawn in presence of the panchas. After collecting the required evidence, the police filed charge-sheet against the accused in the Court of learned J.M.F.C. Dahod. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Panchmahals at Godhra and Sessions Case No.50/2004 (New Sessions Case No.302/2004) came to be registered. 3. The learned trial Judge framed charge against the accused at Exh.3, to which the accused pleaded not guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary CR.A/452/2005 4/14 JUDGMENT evidence. After completion of the oral evidence, the learned Judge recorded the further statement of the accused under Section 313 of Cr.P.C. The accused generally denied all the allegations levelled against him by the prosecution, and stated that he was falsely implicated in this case and as a matter of fact, he had no illicit relation with any lady. 4. After appreciating the evidence on record and considering the arguments advanced on behalf of both the sides, the learned trial Judge convicted the appellant-accused for the offences punishable under Sections 306 & 498-C of the Indian Penal Code and awarded sentence, as stated hereinabove. 5. We have heard learned advocate Mr.Barot for the appellant and learned A.P.P. Mr.Bhatt for the respondent-State. 6. Learned advocate Mr.Barot for the appellant submitted that the marriage span between the appellant and the deceased was three years. The prosecution has come-forward with a case that the CR.A/452/2005 5/14 JUDGMENT appellant-accused had maintained illicit relation with some lady and on account of that, Lilaben was meted out with cruelty and ill-treatment by the accused. However, except such a vague allegation, no evidence is forthcoming, at least, about the name of that so-called lady with whom it is alleged that the accused maintained illicit relation. It is further submitted that Lilaben fell in an open well having no parapet and died by drowning. Therefore, considering the panchnama of the scene of offence and especially, the situation of the well, accidental fall in the well cannot be ruled out. The appellant was doing labour work at Dahod and the deceased, along with other family members, was residing in village Panchwada, Taluka Dahod. The appellant had never deserted Lilaben, as practically the appellant used to go to Dahod for labour work from village Panchwada almost daily. Despite this, a false allegation was levelled against him that he was not maintaining any relation with Lilaben. There is no dying declaration of the deceased, nor any evidence of any neighbour is recorded. The deceased used to visit her parental home frequently during the short span of her marriage CR.A/452/2005 6/14 JUDGMENT with the appellant. The first informant Badiyabhai Parmar has categorically admitted, in his testimony recorded at Exh.15, that the marriage life of his daughter with the appellant was happy. He has also admitted that even the appellant used to visit his house and stay with him. As soon as the appellant, who was at Dahod doing his labour work, came to be informed about the death of his wife Lilaben, he immediately came to village Panchwada, and it was the appellant, who informed the police about the unfortunate incident and the police recorded the information given by the accused as Accidental Death Entry No.13/2003. Thereafter, the appellant immediately informed the parents of the deceased. Such type of conduct on the part of the appellant requires to be considered. Even at the time when the deceased died, the appellant was not present. Thus, there is no proximate cause to compel the deceased to end her life. Therefore, it is submitted by the learned advocate for the appellant that the appeal may be allowed and the judgment and order of conviction rendered by the learned trial Judge be set aside. CR.A/452/2005 7/14 JUDGMENT 7. Learned A.P.P. Mr.Bhatt has vehemently opposed this appeal, and submitted that the prosecution successfully proved its case beyond any reasonable doubt. The prosecution proved that the appellant was maintaining illicit relations with some lady and on that count, he used to cause cruelty and ill- treatment to his wife. When Lilaben committed suicide, the marriage span was within seven years and, therefore, a presumption contained in Section 113-A of the Evidence Act can be drawn in the present case. He, therefore, submitted that the appeal may be allowed. 8. We have considered the record and proceedings of the case in the context of the submissions made on behalf of both the sides. 9. Reappreciating the evidence on record, there is no dispute that the marriage life of deceased Lilaben with the appellant was appropriately of four years, or at any rate, within seven years from the date of the incident. Looking to the post-mortem report of CR.A/452/2005 8/14 JUDGMENT the deceased, the cause of death of Lilaben is cardio respiratory failure due to asphyxia following drowning. It further transpires that the incident occurred on 29.10.2003 at about 10.00 A.M., in the morning. The appellant himself went to the Police Station and informed the police about the unnatural death of Lilaben and the information was registered as Accidental Death Entry No.13/2003. It has also come in evidence that the appellant informed about the sad demise of Lilaben to her parents. 10. First informant Badiyabhai Parmar is examined at Exh.15. According to his testimony, deceased Lilaben was married to the appellant before about 3-4 years from the date of the incident. The witness has stated that for about one year, the marital life of Lilaben with the appellant was happy, but, thereafter, the appellant maintained illicit relations with some lady and on account of that, he used to cause cruelty and ill-treatment to Lilaben and he used to beat Lilaben. He has further stated that before the incident, when Lilaben had come to his house, she had told to his wife (mother of Lilaben) about the ill-treatment and CR.A/452/2005 9/14 JUDGMENT cruelty meted out to her by the appellant and his wife, in turn, told it to him. He has stated in his testimony that he told his family members that now Lilaben can be sent to her matrimonial house, only if her husband (appellant) execute some writing. Thereafter the mother-in-law of Lilaben came and Lilaben went to her matrimonial house with her mother-in-law. Thereafter, he received a telephonic call that Lilaben had died and therefore, he went to Panchwada Hospital and saw the dead body of Lilaben. He lodged FIR in connection with this offence on 31.10.2003, which is at Exh.16. In his cross- examination, he has admitted that after her marriage, whenever Lilaben used to visit his house, she was in happy mood. He has also admitted that the appellant was doing labour work at Dahod. He never made any inquiry about the appellant having illicit relations with any lady. He has admitted that he was serving at Kota and, therefore, he did not know as to what happened between the appellant and his daughter Lilaben. He never met the father of the appellant in connection with the appellant maintaining illicit relations with any lady, or regarding any cruelty and CR.A/452/2005 10/14 JUDGMENT ill-treatment meted out to Lilaben by the appellant. 10.1 The testimony of Tibaliben Parmar, mother of deceased Lilaben, recorded at Exh.18, runs on the same lines of the testimony of first informant Badiyabhai. 10.2 The prosecution has examined Kanubhai Parmar at Exh.19 and Beniben Kanubhai Parmar at Exh.23, who are brother and brother's wife of deceased Lilaben. Witness Beniben has stated in her testimony that the appellant was doing labour work at Dahod and the deceased was residing at Panchwada. She has further stated that the appellant had told Lilaben to stay at Panchwada because he had illicit relations with some lady. 10.3 Investigating Officer PSI Mr. R.R. Vasava, who has been examined at Exh.25, has stated in his deposition that the witnesses in their respective statements stated that the appellant had illicit relations with some lady. He has further stated that he had asked those witnesses as to who was that lady, CR.A/452/2005 11/14 JUDGMENT but, they could not provide any information about that lady. He has also stated that he, at his own, through his private informant, had also inquired about it, but, could not get any information in this regard. 11. Evaluating the evidence on record, it becomes clear that except the bare words of the father, mother, brother and brother's wife, there is no evidence to come to the conclusion that the prosecution successfully established its case about the appellant maintaining illicit relations with any lady. The Investigating Officer has clearly stated in his testimony that he inquired from these witnesses regarding the name and other particulars about the said lady, but, the same was not provided. Even through his own information, no such information could be gathered. Considering the evidence of the witnesses recorded in the Sessions Case, even at the trial stage, they were not in a position to furnish any better particulars in support of such allegation before the trial Court. CR.A/452/2005 12/14 JUDGMENT 12. From the evidence in the form of panchnama of the scene of offence (Exh.7), testimony of panch witness Keshavbhai (Exh.6), testimony of Investigating Officer PSI Mr.Vasava (Exh.25), it clearly transpires that the well was situated in a field and there was no parapet surrounding it and it was a step-well. It further transpires that the well was dug recently. Under such circumstances, there seems to be a substance in the argument advanced by learned advocate Mr.Barot that even the possibility of fall into the well accidentally cannot be ruled out. 13. As stated above, even the conduct of the appellant is required to be considered in the sense that at the time of the incident, he had gone to Dahod for labour work. But, as soon as he was informed about the unfortunate incident, he immediately came to village Panchwada and informed the police about the incident immediately. He informed to the parents of his wife Lilaben about the incident, who came to Panchwada on 30.10.2003 and in connection with this incident, FIR came to be lodged CR.A/452/2005 13/14 JUDGMENT on the next day i.e. 31.10.2003. As stated above, considering the testimony of first informant Badiyabhai, father of Lilaben, except bare allegation about the appellant maintaining illicit relations with some lady, no cogent and convincing fact regarding any cruelty or ill-treatment meted out by the appellant to his daughter Lilaben comes on record. As stated above, as per the prosecution case, the very cause of cruelty and ill-treatment was some illicit relations of the appellant with some lady and about such allegation, almost, there is no evidence whatsoever. 14. The sum and substance of the above discussion, would lead us to believe that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. In the result, the appeal deserves acceptance. 15. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded by the learned Additional Sessions Judge, Dahod by judgment and order dated 2.12.2004, in Sessions Case No. CR.A/452/2005 14/14 JUDGMENT 302/2004, is hereby set aside. The appellant is acquitted of the offences with which he was charged. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to the appellant-accused. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)