CR.A/371/2002 1/56 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 371 of 2002 With CRIMINAL APPEAL No. 312 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= MANOJBHAI LALJIBHAI KABARIA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR AD SHAH for Appellants in both appeals. MR KT DAVE ADDL. PUBLIC PROSECUTOR for respondent in both appeals. ========================================================= CR.A/371/2002 2/56 JUDGMENT CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date : 19/01/2007 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. These two Criminal Appeals under Section 374 of the Code of Criminal Procedure ('the Code' for short) are directed against the judgment and order dated 26.2.2002 rendered in Sessions Case No.283 of 1999 by the learned Additional Sessions Judge, Court No.22, City Sessions Court, Ahmedabad by which the appellants (A-1, A-2, A-3 and A-5) of both these appeals have been convicted for the offences punishable under Sections 304-B and under Section 498-A of the Indian Penal Code ('IPC' for short) and under Section 4 of the Dowry Prohibition Act, 1961 ('the Act' for short) and sentenced to suffer R.I. for ten years for the offence under Section CR.A/371/2002 3/56 JUDGMENT 304-B IPC, R.I. for two years and fine of Rs.500/- i.d., to undergo R.I. for a further period of 15 days for the offence under Section 498-A IPC and R.I. for six months and fine of Rs.500/- i.d., to undergo R.I. for a further period of 15 days for the offence under Section 4 of the Act. It is also ordered that all the sentences imposed on A-1, A-2, A-3 and A-5 shall run concurrently. The order further stipulates that A-4 has been given benefit of doubt and has been acquitted of the offences with which she was charged. 2. Aggrieved by the judgment and order of conviction and sentence, A-1 and A-2 have filed Criminal Appeal No.371 of 2002 whereas A-3 and A- 5 have filed Criminal Appeal No.312 of 2002. 3. Since both these appeals challenge the same judgment and order, they are heard together, decided and disposed of by this common judgment and order. CR.A/371/2002 4/56 JUDGMENT 4. At the outset, it is required to be mentioned that so far as appellant No.2 (A-2) of Criminal Appeal No.371 of 2002 is concerned, as per the jail record sheet forwarded by Deputy Superintendent, Central Jail, Ahmedabad, he has died on 11.1.2005 while languishing in jail which fact is also endorsed by Mr. A.D. Shah, learned advocate of the appellants and Mr. K.T. Dave, learned Addl.P.P. for the respondent – State of Gujarat and since no application is filed by any of his near relatives seeking leave to continue the appeal as provided under proviso to sub- section (2) of Section 394 of the Code, the appeal filed by him has been abated on his demise and accordingly Criminal Appeal No.371 of 2002 stands abated qua A-2. 5. The case of the prosecution, as disclosed from the FIR and unfolded during trial, in short, is as under: CR.A/371/2002 5/56 JUDGMENT 5.1. A-1 is the husband, A-2 is father-in-law, A-3 is mother-in-law, A-4 is married sister-in- law residing with her husband at her matrimonial home and A-5 is unmarried sister-in-law of one Muktaben alias Manisha – deceased victim. 5.2. On 18.3.1999, A-1 had married Manisha as per ritual and rites. On 28.5.1999, Naresh, the son of the complainant (brother of the deceased) had been to Ahmedabad to take Manisha to her parental home at Chalala, where Manisha had stayed for about one month. During that time Manisha informed her brother Madhavjibhai and the complainant (the mother) about the cruelty, harassment and torture meted out to her by all the accused in connection with demand of dowry and further demanded Rs.50,000/- and Manisha was told not to come back without bringing Rs.50,000/- Manisha had also complained that the accused were taunting her for having brought insufficient dowry. During her stay at Chalala, it was felt by Manisha and thereafter learnt by CR.A/371/2002 6/56 JUDGMENT others that she had pregnancy of two to three months. It was also complained by Manisha that after the marriage she had been to the City of Baroda, at the residence of A-4 where A-4 told “why have you brought this kind of wife? By spending money you could have brought better wife”, and thus Manisha was made to cry by A-4. 5.3. On 3.7.1999, A-1 had been to Chalala to take Manisha back to Ahmedabad. Though Manisha was reluctant to accompany A-1, the complainant had persuaded her to return to her matrimonial home and thus Manisha had returned to Ahmedabad along with A-1. 5.4. On 12.7.1999, the complainant received a telephonic message at Chalala that Manisha died due to burns. The complainant, her son, her brother-in- law, sister-in-law, etc., had been to Ahmedabad where, after attending funeral ceremony of deceased Manisha, the complaint was filed contending above mentioned facts and also the CR.A/371/2002 7/56 JUDGMENT fact that deceased Manisha was subjected to cruelty by the accused for abortion of the pregnancy. Since deceased Manisha wanted to sustain the pregnancy, the accused have burnt her with the common intention to kill her. 5.5. The aforesaid incident was reported by the complainant to Bapunagar Police Station, Ahmedabad, where it was registered vide C.R. No.223 of 1999 and on the basis of the said information, offence was registered. 5.6. Pursuant to the registration of the FIR, investigation was put into motion. During the course of investigation, the investigating officer recorded the statements of witnesses, collected the inquest report which was held on the dead body as well as autopsy report of the dead body of Manisha, prepared panchnama of the scene of offence, collected clothes of the deceased by drawing a panchnama and sent the same to FSL and after getting the FSL report and CR.A/371/2002 8/56 JUDGMENT autopsy report and on completion of the investigation, since sufficient incriminating evidence was found against the accused for commission of the offence of murder as well as subjecting the deceased to mental and physical cruelty, the investigating officer filed charge- sheet against the accused for commission of the offences under Sections 302, 498-A and 114 IPC and Sections 4 and 5 of the Act in the court of learned Metropolitan Magistrate, Ahmedabad. 5.7. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the City Sessions Court, Ahmedabad. 5.8. On committal, the case was transferred and placed for trial before the learned Additional Sessions Judge, City Sessions Court, Ahmedabad ('the trial court' for short) who had initially framed charge against the accused for CR.A/371/2002 9/56 JUDGMENT commission of the offences under Sections 498-A and 304-B IPC and section 4 of the Act which came to be subsequently amended as per order recorded below Ex.91 by adding Section 302 read with Section 114 IPC as well as Section 201 read with Section 114 IPC. The charge was read and explained to them. All the accused pleaded not guilty to the charge and claimed to be tried and thereupon they were put to trial by the trial court in Sessions Case No.283 of 1999. 5.9. In order to bring home the charge levelled against the accused, the prosecution has examined as many as 15 witnesses and relied upon their oral testimony, the details of which have been given in paragraph 6 of the impugned judgment and order. They are as under: P.W. No Name of witness and particulars Ex.No Page No. 1 Savdhanji Vajaji Darbar, Executive Magistrate 16 97 2 Najabhai Modalbhai Aahir, Panch witness 19 105 CR.A/371/2002 10/56 JUDGMENT P.W. No Name of witness and particulars Ex.No Page No. 3 Devjibhai Nagjibhai Thumar, Father-in-law of uncle of the deceased 22 111 4 Vimlaben Vinubhai Patel, Sister- in-law of the sister of the deceased 28 183 5 Hansaben Mansukhbhai, Sister of the deceased 31 199 6 Kantaben Devjibhai, wife of P.W.3, Devjibhai Nagjibhai Thumar 36 241 7 Savitaben Becharbhai Patoria, mother of the deceased 41 259 8 Dr. Harishchandra Gemarbhai Jadav, Doctor who performed post mortem 48 277 9 Madhavjibhai Becharbhai Patoriya, Brother of the deceased 53 311 10 Laxmanbhai Nathabhai Gameti, PSI, Investigating squad 54 331 11 Gopalbhai Dhanjibhai Solanki, Watchman of the society wherein the accused reside 57 341 12 Shambhubhai Manjibhai Patel alias Gajera, Neighbour of the accused and distant relative of P.W.3 Devjibhai Nagjibhai Thumar 59 349 13 Vasudevbhai Vasantrai Thakar, Neighbour of the accused and advocate 60 361 14 Uday Narendra Malavi (Police), Retired ACT, visiting I.O. 63 369 15 Laxmansinh Kesharsinh Chudavat, Police, Investigating officer 65 379 CR.A/371/2002 11/56 JUDGMENT 5.10. The prosecution has also produced a number of documents and relied upon the contents of the same, the details of which have been given in paragraph 7 of the impugned judgment and order. They are as under: Sr. No Particulars Ex. No Page No 1. Intimation sent to Executive Magistrate 17 805 2. Inquest panchnama 18 809 3. Burnt pieces of letter written by Manisha and her photograph 32 817 4. F.I.R. 42 833 5. P.M. Report 49 847 6. Letter written by police for further explanation with reference to column No.17 of P.M. report 66 889 7. Further report called for in reference to column No.17 of P.M. report 50 863 8. Panchnama of the place of offence 56 877 9. Muddamal recovered from the place of offence 67 893 10. Intimation regarding sending of muddamal to FSL 68 899 11. F.S.L. report 69 901 12. Panchnama of the clothes of the dead body 70 909 13. Report to register the offence 64. 887 CR.A/371/2002 12/56 JUDGMENT 5.11. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement under Section 313 of the Code. In their further statement they denied the case of the prosecution in entirety. According to them, they have been roped in a false case of dowry death. However, they have neither led any evidence nor did they examine any witness in support of their defence. 5.12. At the end of the trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial court came to the conclusion that the prosecution has failed to prove the charge of offence punishable under Section 302 as well as screening the offence punishable under Section 201 IPC against the accused. However, the prosecution has established that the deceased Manisha died a suicidal death and A-1, A-2, A-3 CR.A/371/2002 13/56 JUDGMENT and A-5 are guilty of dowry death and the deceased was subjected to mental and physical cruelty at their hands. All the aforesaid four accused were consistently and repeatedly demanding dowry from her for not terminating her pregnancy and retaining the same. Therefore, complicity of accused for commission of offence under Sections 304-B and 498-A IPC as well as under Section 4 of the Act is proved and after hearing them on the quantum of sentence, the trial court has awarded sentence to each of them to which reference is made in earlier paragraph of this judgment. It is also held by the trial court that so far as A-4 is concerned, she is a married sister-in-law of deceased whose presence at the site of the offence on 12.7.1999 was not proved and, therefore, charge against her has not been established and resultantly she is acquitted of the offences with which she was charged. It is this judgment and order which is now on the anvil of scrutiny before this Court in these two appeals, one being Criminal Appeal No.371 of 2002 which has been filed by A-1 and A-2, who are the CR.A/371/2002 14/56 JUDGMENT husband and father-in-law of deceased Manisha and the other being Criminal Appeal No.312 of 2002 which has been filed by A-3 and A-5, who are the mother-in-law and sister-in-law of deceased Manisha. 6. Mr. A.D. Shah, learned advocate of the appellants/accused in both the appeals firstly attacked on the findings given by the trial court with regard to commission of the offence of dowry death. According to him, there was no demand of dowry. The span of married life between A-1 and deceased Manisha was about four months only. There is no evidence to the effect that deceased Manisha was ever subjected to mental and physical cruelty at the hands of the accused persons. According to him, there is no reliable, cogent and trust-worthy evidence on record with regard to demand of dowry as well as mental and physical cruelty meted out to deceased Manisha by the accused persons. Everything was normal. Only after the deceased conceived that A-1 advised her to go for termination of pregnancy and, CR.A/371/2002 15/56 JUDGMENT therefore, some difference of opinion was there between both of them with regard to abortion. According to Mr. Shah, as A-1 is having two children begotten out of the wedlock with his previous wife, Kiran, who had died and, therefore, to grow up the two children, A-1 married deceased Manisha and on Manisha conceiving, A-1 persuaded her to go for termination of pregnancy. Otherwise it would not be possible for him to bear the expenses of the third child. Therefore, persuasion of A-1 to go for termination of pregnancy would not amount to willful conduct which would amount to offence under Section 304-B IPC. According to Mr. Shah, if the accused wanted to terminate pregnancy of deceased Manisha forcibly, A-1 could have taken her to the doctor for abortion immediately when he came to know that deceased Manisha was pregnant. But that was not done by him because the accused wanted to persuade her that in the circumstances prevailing in the family, it was not possible to have one more child and considering the circumstances, she may agree for CR.A/371/2002 16/56 JUDGMENT abortion. This conduct on the part of the accused itself shows that there was no compulsion on deceased Manisha to go for abortion. According to him, the matter did not rest there. The deceased was allowed to visit her relatives where she did not make any complaint with regard to demand of dowry by the accused or compulsion for abortion. There is no evidence to the effect that there was persistent insistence in the family for abortion or demand of dowry. The incident took place after mid-night between 2 A.M. and 2.30 A.M. on 12.7.1999. The deceased had taken a can of kerosene in the terrace and ablaze. Nobody heard any shriek. Therefore, no neighbour came out and if at all she had made any shriek they would have come out of their houses as it was a big residential society. It was only when the watchman came and knocked the door with stick and thereafter he shouted, the door of the house was opened. Mr. Shah has also tried to demonstrate that when the accused saw the dead body of Manisha, it was facing towards the ground. According to him, this position of the deceased CR.A/371/2002 17/56 JUDGMENT shows that there was great desire for her to die and there was no question of any force being applied. The evidence on record shows that the flame was still i.e., not moving. According to Mr. Shah, this is not a case of burning a dead body i.e., after committing murder of deceased the body was burned as it is clear that black carbon particulars have been found in trachea. Column No.20 of the post-mortem notes suggests that she was alive when she got burn injuries. Column No.18 of the post mortem notes suggests that all the injuries were ante-mortem. 6.1. So far as the oral evidence of the relatives of deceased is concerned, there are lot of improvements and contradictions and they have come with a story of demand of dowry for the first time which impeaches the credibility of the evidence of those witnesses. He criticized that statement of P.W.3, Devjibhai Ex.22 was recorded twice on the same day which were part of the charge-sheet. Devjibhai himself has admitted that his two statements have been recorded on the same CR.A/371/2002 18/56 JUDGMENT day and investigating officer has admitted that so far as the first statement of Devjibhai is concerned, he has not mentioned about the same in the police diary and this fact itself shows that the investigation was dishonest. In the second statement of Devjibhai, there are lot of improvements which would impeach the credibility of the evidence of Devjibhai who has created a new story of demand of Rs.1 lakh by A-1 and his family members. According to Mr. Shah, the evidence of Devjibhai is unreliable and untrustworthy and, therefore, no reliance can be placed upon his oral testimony. 6.2. It has also come in the evidence that deceased Manisha had handed over a chit to P.W.5, Hansaben Mansukhbhai, sister of the deceased, Ex.31. The said chit was torn and put in fire by Hansaben. The torn pieces of the said chit were recovered by the police while making search of the house of Hansaben. From the fact that the said chit was torn into pieces and burned by Hansaben itself shows that there was no mention CR.A/371/2002 19/56 JUDGMENT in the said chit about demand of dowry by the accused. Had there been any mention about demand of dowry in the said chit, Hansaben would not have torn the said chit and tried to destroy it. The said chit is produced at Ex.32. Hansaben, in her oral testimony has stated that she destroyed the said chit because of fear of Mansukhbhai, her husband, who told that such simple disputes are common in all families. 6.3. Mr. Shah has also invited the attention of this Court to the fact that A-1 had gone to the house of deceased at Chalala to call her back and he brought her back to her matrimonial home and this shows that there was no dispute between them or harassment to deceased Manisha. 6.4. In sum and substance, Mr. Shah has contended that it is true that deceased Manisha died a suicidal death. However, there was no demand of dowry nor and physical or mental cruelty meted out to deceased by the accused. According to him, the entire incident took place CR.A/371/2002 20/56 JUDGMENT on account of persuasion made by A-1 to go for abortion, otherwise it would be an additional burden on the family of A-1 who has two teen-aged children begotten from the previous wife who has died, which has been given the colour of demand of dowry by the relatives of the deceased. Further, according to Mr. Shah, the deceased might have died under a wrong belief that A-1 would take her for compulsory abortion. However, there is no evidence on record that there was any compulsion on the part of the accused to abort the pregnancy. Therefore, according to him, it is more or less a psychological factor that prompted her to put an end to her life for which the accused cannot be held responsible. According to Mr. Shah, the evidence discloses that the previous marriages of deceased Manisha had broken and, therefore, she was more or less reluctant to terminate the pregnancy and she was under a wrong belief that accused may forcibly terminate her pregnancy and, therefore, she decided to put an end to her life and well planned it and committed suicide on the terrace at such time of the night CR.A/371/2002 21/56 JUDGMENT that almost all the members of the house and even the society would be in deep sleep i.e., 2 A.M. and 2.30 A.M. Therefore, the accused cannot be held guilty for the same. Therefore, according to him, since the prosecution has failed to prove the charge levelled against the accused, the impugned judgment and order convicting and sentencing the accused for commission of the offences punishable under Sections 304-B and under Section 498-A IPC and under Section 4 of the Act deserves to be quashed and set aside by allowing both these appeals and by acquitting the accused of the offences with which they are charged. He, therefore, urged to allow both the appeals and to acquit the accused of the offences with which they are charged. 6.5. In support of the aforesaid contentions, Mr. Shah has relied upon the following reported decisions: (i) Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. CR.A/371/2002 22/56 JUDGMENT (ii)State of Rajasthan v. Teg Bahadur and others, 2005 SCC (Cri.) 218. (iii) Harjit Singh v. State of Punjab, AIR 2006 SC 680; and (iv)State of Gujarat v. Bharatbhai Balubhai Lad and others, 2006 (1) GLH 718. 7. Mr. K.T. Dave, learned Addl.P.P. has submitted that there is voluminous evidence on record to the effect that the prosecution has been able to successfully prove that the deceased was subjected to mental and physical cruelty at the hands of the accused on account of the demand of dowry and the accused have also abetted her to commit suicide because she had conceived. It has also come in evidence that for not terminating pregnancy and to retain the pregnancy the accused demanded Rs.1 lakh and prior thereto they have also demanded Rs.50,000/- Therefore, there is no reason to disbelieve the evidence of those witnesses who have deposed against the accused before whom the deceased made complaint that the accused were demanding Rs.1 lakh for not CR.A/371/2002 23/56 JUDGMENT terminating pregnancy and retaining it as well as the accused demanded dowry of Rs.50,000/- as she brought less kariyavar. The marriage between deceased Manisha and A-1 took place for the purpose of looking after the two small children of A-1 who are born out of the wedlock of A-1 with his previous wife Kiran, who had also died because of burn injuries. Therefore, there were two reasons for deceased Manisha to commit suicide; the first was that there was demand of dowry and the other was compulsion for abortion. According to Mr. Dave, no lady would permit abortion of her first pregnancy and he also emphasized that no lady would commit suicide when she is pregnant unless there is continuous and persistent abetment to commit suicide. According to him, compulsion or demand of termination of pregnancy would amount to cruelty and in order to retain the pregnancy demand of Rs.1 lakh amounts to demand of dowry within the meaning and definition of the Act. According to him, all the witnesses have deposed consistently. They are consistent with regard to demand of dowry. It is CR.A/371/2002 24/56 JUDGMENT further submitted by him that by considering the evidence on record, the trial court found that the complicity of the accused is established and, therefore, there is no reason to take a different view than the one taken by the trial court. According to Mr. Dave, the conduct of the accused is of relevant consideration as nobody reached there on the terrace when the deceased committed suicide and did nothing to save her. It has also come in evidence that previous wife of A-1 had also died because of burns. According to him, right from the beginning there was demand of dowry by the accused and compulsion for termination of pregnancy was an added ground and the death had direct nexus with the demand of dowry. In their further statement, the accused have totally denied the prosecution case and came out