CR.A/807/2004 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 807 of 2004 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 ? ========================================================= RAJESH @ RAMESHBHAI MANUBHAI MAKWANA - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= Appearance : MR UA TRIVEDI for Appellant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 26/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/807/2004 2/16 JUDGMENT The appellant was the accused before the Sessions Court, Kheda at Nadiad, in Sessions Case No.60/2002 facing charges for the offences punishable under Sections 498-A & 306 of the Indian Penal Code. He was charged to have abetted the suicide of his wife Jyotikaben, which she committed on 9.10.2001 by consuming poison. F.I.R in this regard was lodged by Jyotikaben's brother Bhikhabhai on 10.10.2001. The police having found sufficient material, filed charge-sheet in the Court of learned J.M.F.C., Anand, who, in turn, committed the case to the Court of Sessions and Sessions Case No.60/2002 came to be registered. The charge against the accused was framed at Exh.5, to which, he pleaded not guilty and claimed to be tried. 2. The Sessions Court, after appreciating the evidence led by the prosecution, came to the conclusion that the prosecution was successful in proving the case against the accused for both the offences and recorded conviction of the accused- appellant for both the offences. The trial Court, by judgment and order dated 1.4.2004, sentenced the CR.A/807/2004 3/16 JUDGMENT appellant to undergo R.I for three years and fine of Rs.1000/-, in default to undergo S.I for three months, for the offence punishable under section 498A IPC. For the offence punishable under Section 306 IPC, the trial Court sentenced the appellant to undergo R.I for ten years and to pay a fine of Rs.1000/-, in default, to undergo S.I for six months. Both the sentences were ordered to run concurrently. Aggrieved by the said judgment and order, the present appeal is preferred. 3. We have heard learned advocate Mr.U.A.Trivedi for the appellant, and Mr.U.R.Bhatt, learned A.P.P., for the respondent-State. 4. Learned advocate Mr.Trivedi for the appellant submitted that the trial Court has committed an error in appreciating the evidence. The allegation against the appellant, as per the prosecution case, was that he was maintaining illicit relationship with one Gitaben, and this aspect has not been proved by the prosecution at all. Mr.Trivedi submitted that so far as the cruelty aspect is concerned, the allegations CR.A/807/2004 4/16 JUDGMENT are too general, non-specific and vague. The evidence in that regard is also inconsistent and scanty, which ought to have been considered by the trial Court. It was also submitted by Mr.Trivedi that the provisions of Section 113A of the Indian Evidence Act could not have been resorted to in light of the above defect in the evidence, simply because the marriage span was of less than seven years. Mr.Trivedi submitted further that the case hangs, mainly, on oral dying declaration claimed to have been made by the deceased before his brother Bhikhabhai Chimanbhai. This aspect is stated by Bhikhabhai Chimanbhai in his deposition recorded at Exh.16, but, this weak piece of evidence, as it is, is not getting any corroboration from any other evidence. On the contrary, contemporaneous evidence rules out the possibility of such an oral dying declaration. Mr.Trivedi submitted that the medical certificate issued by Dr.Bipinbhai Vyas clearly indicates that till 2.00 O'clock Bhikhabhai was not present. On the other hand, Bhikhabhai claims to have reached the place at 10.00 O'clock in the morning. The condition of the deceased after 2.00 O'clock was very critical, as can be seen from the CR.A/807/2004 5/16 JUDGMENT medical papers. The Doctor does not support the story of Bhikhabhai about the deceased having made oral dying declaration before him. Therefore, the evidence regarding cruelty and illicit relationship cannot be said to have been proved beyond reasonable doubt. The trial Court has overlooked this aspect and has recorded the conviction. The appeal may, therefore, be allowed. 5. Learned A.P.P. Mr.Bhatt has opposed this appeal. According to him, the evidence of Bhikhabhai Exh.16, coupled with the evidence of his wife Niruben, would go to show that the appellant was maintaining illicit relationship with Gitaben and for that purpose, used to cause cruelty to the deceased. The learned A.P.P further submitted that witness Pravinbhai also states about the accused-appellant having been maintaining illicit relationship with Gitaben and he having rebuked the appellant for the same. He has also deposed that the appellant assured that it would not occur again. Mr.Bhatt, learned A.P.P., submitted that maintaining of illicit relationship would amount to cruelty to a wife and considering the marriage span CR.A/807/2004 6/16 JUDGMENT of six months, presumptive clause 113A of the Evidence Act would come into play and, therefore, the trial court was justified in convicting the appellant. The appeal may, therefore, be dismissed. 6. We have examined the record and proceedings in the context of the contentions raised by both the sides. 7. Dr.Bipin Vyas is examined at Exh.12. He is the doctor, to whom the deceased was taken on being ill. He has stated in his deposition that the deceased was brought to his hospital with a complaint of diarrhoea and vomiting and he gave treatment for the same initially. In later part, when froth came out of the mouth and nose of the deceased, he inquired about food-poisoning or consumption of any poisonous substance and the deceased refused to answer. When her condition worsened, he again vehemently asked the deceased and at that point of time, he was told by the deceased that she had consumed poisonous pesticide, commonly used for cultivation of cotton crop. He, therefore, immediately informed the police. CR.A/807/2004 7/16 JUDGMENT He denies that the deceased made any dying declaration before her brother Bhikhabhai in his presence. The witness is, therefore, declared hostile by the prosecution. However, on perusal of the evidence of the Investigating Officer, Police Inspector Mr.Rathod, we find that this contradiction is not proved by the prosecution. 7.1 On perusal of the evidence of Bhikhabhai (Exh.16), we find that he asserts that the deceased made oral dying declaration before him stating that she had consumed pesticide because of harassment by her husband. We find that the nature of harassment is not described or made clear by the deceased. Looking to the physical condition of the deceased, it would not be reasonable on our part to expect that she would give all the details of the nature of harassment. But, the factum of the deceased having made oral dying declaration, as asserted by Bhikhabhai, has to be tested on the touchstone of probability, for the reason that oral dying declaration by itself would be a weak piece of evidence. In this regard, if the certificate issued CR.A/807/2004 8/16 JUDGMENT by Dr.Vyas (Exh.14) is seen, it is stated therein that at about 2.00 p.m., when froth started coming out of the mouth and nose of the patient and she started perspiration, she disclosed, on intensive questioning, that she had consumed pesticide used for cultivation of cotton crop, and at that point of time, her mother-in-law, father-in-law, brother-in- law and husband were present and the patient insisted for calling her parents. He, therefore, informed Vasad Police Station about the same and about the fact that the condition of the patient was serious. The patient expired at 3.45 p.m., on 9.10.2001. 7.2 If the evidence of Bhikhabhai and the medical certificate are read together, it would be clear that the certificate, which is a contemporaneous record of an independent witness, maintained in the ordinary course of business, does not support the case of Bhikhabhai. Witness Bhikhabhai says that he had reached the place by 10.00 O'clock in the morning, whereas, the Doctor's certificate says that only the in-laws and the husband of the deceased were present till 2.00 p.m., CR.A/807/2004 9/16 JUDGMENT and the patient insisted on calling her parents. The Doctor has denied, in terms, in his deposition the presence of Bhikhabhai and the deceased having made oral dying declaration before him. The factum of oral dying declaration, therefore, becomes a matter of doubt. We have also examined the medical case papers to be doubly sure and we find from Exh.14 that when patient Jyotikaben was brought to the Doctor at about 11.00 A.M., her condition was “dehydration ++, eye balls shrunken, pulse 90/p.m. B.P. 100/80. --- ---”. Thereafter, at 12.30 p.m., it is recorded, “frequency of stool +, patient got frothing in mouth & nose, Pupils pin point, Patient was asked for any insecticide ingestion, but, she refused. Patient conscious”. Again, at 2.30 P.M., it is recorded, “Patient gave history of insecticide ingestion. We informed police”. At 3.30 P.M., patient was gasping, but, conscious; whereas, at 3.40 P.M., patient was gasping and unconscious. Ultimately, it transpires that at 3.45 P.M., the patient expired. CR.A/807/2004 10/16 JUDGMENT 7.3 From what is recorded in the medical papers, it is clear that right from the beginning, condition of Jyotikaben was not good and she resisted giving answer to the Doctor about consumption of pesticide. It is only on persistent asking that she discloses at 2.30 P.M that she had consumed pesticide, but, she discloses no reason for consumption thereof, and within a half or quarter of an hour she expired. 8. The story of Bhikhabhai about the deceased having made oral dying declaration before him stating that she had consumed pesticide because of harassment by her husband, therefore, loses credence, because it does not get any support from any contemporaneous or independent evidence. The prosecution has also failed to adduce the evidence of Rajubhai, who could have supported the version of Bhikhabhai, because he was the person, who accompanied Bhikhabhai to the Hospital. Rajubhai is not examined, but, his brother Pravinbhai is examined at Exh.19. On reading his deposition, we find that he has stated in his deposition that he was informed by Bhikhabhai at about 3.00 P.M that Jyotikaben is admitted in a CR.A/807/2004 11/16 JUDGMENT hospital at Anand. He, therefore, went to Anand hospital and found Jyotikaben dead. He says that Bhikhabhai had not asked deceased Jyotikaben anything about the cause for consuming pesticide. Remarkably, Pravinbhai is silent about the presence or absence of his brother Rajubhai. Had Rajubhai accompanied Bhikhabhai, he would have been there, and as per the case of Bhikhabhai, Rajubhai was with him. That story also, therefore, does not get any support or corroboration. All these factors taken collectively, would go to show that the prosecution has not been able to prove beyond reasonable doubt the factum that the deceased consumed poison because of the harassment by her husband, as is sought to be proved with the help of oral dying declaration. 9. The second fold of arguments by learned A.P.P., was that the marriage span was of six months only and, therefore, Section 113A of the Evidence Act would come into play. As discussed earlier, evidence in the form of oral dying declaration is not an aspect to show any cruelty. Heavy reliance is sought to be placed by the prosecution on the evidence of CR.A/807/2004 12/16 JUDGMENT Bhikhabhai, his wife Niruben and Bhikhabhai's cousin Pravinbhai. 9.1 If the evidence of Bhikhabhai is seen, he relies on what is claimed to have been stated by the deceased to Niruben. He states that Niruben was informed by the deceased that the appellant was talking to Gitaben and because of that, he caused cruelty or harassment to the deceased. Bhikhabhai admits that he never knew about this till the previous day of the incident i.e. 8.10.2001. Contrary to this, his cousin Pravinbhai says that he came to know about the appellant having illicit relation with Gitaben about a month prior to the incident and he had gone to Ramnagar and rebuked the appellant, and the appellant had assured that it would not recur. Bhikhabhai's wife Niruben says that the deceased used to tell her about the appellant having illicit relations with Gitaben. However, the language used is of the appellant talking to Gitaben. She further says that when the appellant came to her house, she talked to him and he said that it would not happen again. CR.A/807/2004 13/16 JUDGMENT 10. It has come in the evidence of Bhikhabhai that during this span of six months, the deceased and the appellant used to come to his house frequently and till this, there was no dispute. It has also come in the evidence that the deceased had come to attend Savitaben, who had sustained fracture, just 15 days before the incident and stayed with them for about 10 days. 10.1 Considering all these factors collectively, the picture that emerges is that all the three witnesses have a different version to give, which is inconsistent with the version of the other and which reflects a conduct, which cannot be said to be natural. According to Bhikhabhai, till the deceased and the appellant came to his house often, there was no dispute. Last time, 15 days before the incident, she came there and stayed for 10 days and she was taken by the appellant. So, just five days prior to the incident, the deceased was taken to her matrimonial home by the appellant. Bhikhabhai learns about the so-called illicit relationship just on the previous day of the incident, though his wife was CR.A/807/2004 14/16 JUDGMENT told about the same by the deceased much earlier. This is a very difficult proposition to be accepted that a wife would not tell her husband about the difficulties faced by his sister. The entire episode about Pravinbhai going to Ramnagar and rebuking the appellant, is without knowledge of Bhikhabhai, which is also not possible to be accepted. Niruben says that she was aware about this and she still does not inform her husband, which is not a natural conduct. 11. It has come in the evidence that a case was filed at Vaghodia by Bhikhabhai for `Streedhan' of the deceased, which is suggested to have been withdrawn on the appellant returning the Streedhan, which of course is denied, but, the factum of lodging the case is admitted by Bhikhabhai. This aspect has to be viewed with the fact that though Bhikhabhai was present in the hospital when the police arrived at the time when the death occurred and at the time of cremation where also the police was present, first informant Bhikhabhai does not tell the police anything about any harassment or cruelty meted out by the appellant to the deceased or any illicit CR.A/807/2004 15/16 JUDGMENT relationship with Gitaben maintained by the appellant, the cause for the deceased consuming poison. He does not even disclose the intention of lodging FIR, and suddenly on the next day, i.e. 10.10.2001 at about 2.00 p.m., he lodges the FIR. 12. Last but not the least, the allegation of the appellant maintaining illicit relationship with Gitaben is not proved beyond reasonable doubt. Interestingly, the investigating officer admits in his cross-examination that he has recorded the statement of Gitaben, who denied having any illicit relationship with the appellant. The Investigating Officer remained contented with that statement and made no further probe into the question of illicit relationship of the appellant with Gitaben, overlooking the fact that no lady would admit such an illicit relationship. The investigation, therefore, has not been made efficiently. We rest at saying that the evidence about illicit relationship between the appellant and Gitaben is not reliable. It is a bare allegation of the appellant talking to Gitaben and the possibility of the deceased having imaginative CR.A/807/2004 16/16 JUDGMENT idea of illicit relationship between them cannot be ruled out. 13. In the light of what is discussed above, we are of the view that the conviction, either for the offence punishable under Section 498-A IPC or Section 306 IPC, cannot be upheld. 14. The appeal, therefore, merits acceptance. The judgment and order of conviction and sentence dated 1.04.2004 rendered by the learned Joint District Judge and Additional Sessions Judge, 6th Fast Track Court, Nadiad, in Sessions Case No. 60/2002 is hereby set aside. The appellant be set at liberty forthwith, if not required in any other case. Fine, if any, paid be refunded to the appellant-accused. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)