Wife dies @Parent’s house. Lowr court convicts hubby & brothr. GujHC acquits them 8yrs latr on facts. Proximity, instigation discussed. Good case where wife is dead.

Why India urgently needs an “innocence project”: An Innocent Husband has to languish in jail for 4 years before being released by the Hon. Gujarat HC !! This man has a minor son as well !!

The unfortunate death of a woman consuming poison triggers a 498a and 306 case, where the husband and his brother who lived 250 KM away from the woman are accused. The lower court convicts them, however Gujarat HC in a very reasoned order acquits them as the evidences do not hold up in proper scrutiny

* The date of marriage in NOT clear, leading to rebuttal of presumption of guilt under sec 113A of Evidence Act

* Witnesses turn out to be hearsay and not dependable on further scrutiny

* There are contradictions to the prosecution story

Quoting the Hon. HC, it is clarified  :
“…Therefore, though, unnatural death of a woman may foster sympathy, it cannot be ignored that such death and incident is not at the house of in-laws or atleast at the house nearby the appellants – accused, when there is clear evidence that the appellants – accused were at Ahmedabad at the material time; whereas the victim was at Village Turkha in Bhavnagar district i.e. beyond 250 kms. It is also evident from the deposition of the wife of the complainant that victim was of Turkha for last two months. Therefore, there is no substance whatsoever in allegation that the accused were beating the victim upon doubt of her character and, thereby, the victim had no option, but to commit suicide.

17. In view of above facts and circumstances, it seems that the trial Court has committed an error in appreciating the evidence so as to convict the accused by impugned judgment and order….”

********************** case from public websites *****************************

          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL APPEAL (AGAINST CONVICTION) NO. 349 of 2011
                                      With
                        CRIMINAL APPEAL NO. 515 of 2011
                                      With
             CRIMINAL MISC.APPLICATION NO. 9007 of 2015
                        In CRIMINAL APPEAL NO. 349 of 2011

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G.SHAH

VALJIBHAI DAYABHAI MOKANI & 1….Appellant(s)
Versus
STATE OF GUJARAT….Opponent(s)/Respondent(s)

**********************************************************
Appearance:
MR BB NAIK, SENIOR ADVOCATE with MR PRAVIN GONDALIYA, MS REETA CHANDARANA,
APP for the Opponent(s)/Respondent(s) No. 1
**********************************************************
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 23/06/2015

Both these appeals are arising out of common impugned judgment and order dated 23.2.2011 in Sessions Case no.106 of 2008 by the Addl.Sessions Judge and Presiding Officer, Fast Track Court no.2 of Bhavnagar, camp at Botad whereby the trial Court has convicted the accused and awarded R.I for 7 years with fine of Rs.5000/- and in default of payment of fine, S.I of one year u/s.306 of IPC, whereas two years S.I with Rs.1000/- fine, and in default, two months S.I u/s.498A of the IPC because of unnatural death of wife of one of the accused, namely, Valjibhai Dayabhai Mokani. The second appeal is by the complainant for enhancement of sentence.

2. I have heard learned senior counsel Mr.B.B.Naik with Mr.Pravin Gondaliya and learned advocate Mr.H.B.Champavat appearing for ld.advocate Mr.R.J.Goswami for both the appellants and learned APP Ms.Reeta Chandarana for the respondent – State. I have also perused the record and proceedings. The trial Court has described the factual details of complaint, investigation and evidence in detail in the impugned judgment and, therefore, I do not wish to reproduce the story and history herein except to recollect that prosecution has examined six witnesses and produced 18 documentary evidence to prove its case.

3. The case is one of circumstantial evidence against both the accused being brothers, when wife of one of the accused has committed suicide in absence of both of them. The evidence and submission of all the advocates are considered jointly to avoid repetition of the entire story and fact.

4. It is submitted by learned counsel for the accused that, in fact, there is no evidence about the date of the marriage of the victim – Jyotsanaben, who is wife of accused no.1 Valjibhai and, therefore, there cannot be a presumption u/s.113A of the Evidence Act so as to convict the appellants when other evidence do not confirm any mental or physical torture by both the appellants. It is undisputed fact that the incident and thereby death of the victim is on 20.12.2007 and, therefore, technically, to have presumption u/s.113A, the marriage of the victim must have taken place on or after 21.12.2000. Thereby, learned counsel for the appellants is right in submitting that to confirm the punishment, date or evidence of marriage is must, but, if we peruse the entire evidence on record, there is no specific or clear evidence of date of marriage of the victim, except a general statement that marriage was solemnised in the year 2000. For concluding the presumption as aforesaid, the marriage must have been performed within 21.12.2000 to 31.12.2000 even if we believe the statement of the witnesses that the marriage was performed in the year 2000.

Therefore, probably it seems that prosecution witnesses have not come forward to disclose the the actual date of marriage. However, it has come on record during the oral evidence that marriage of the brother was solemnised on 24.1.2000 and marriage of the victim was soleminsed within a day of the marriage of his brother. Thereby, a presumption can be drawn that marriage of the victim was solemnised in the month of January, 2000 and not between 21.12.2000 to 31.12.2000 if it is in the year 2000. Thereby, prima facie, it is clear and certain on record that the marriage span of the victim is more than 7 years and, therefore, there cannot be a presumption against the accused so as to convict them based upon such presumption alone.

5. Learned counsel for the accused is also right in submitting that rest of the witnesses are relatives being either brother or parents and uncle of the victim. Therefore, in absence of any cogent and reliable evidence by independent witness, it would be difficult to confirm that it was accused, who has instigated the victim to commit suicide. It is also undisputed fact that at the time of actual suicide, accused were not present either with the victim or nearby the victim and in fact, they were on their duty i.e. away from the place of incident. It is also clear from the evidence that in fact the incident has not taken place at the house of the accused, but, it has taken place at the parental house of the victim when she was with her parents and, therefore also, it cannot be said that there was any immediate abetment or instigation or harassment or torture, so as to drag the victim to commit suicide and, therefore also, the conviction of the appellants is not proper.

6. To substantiate such submission, learned sr.counsel for the accused had referred the relevant portion of the evidence. I find substance in such submission after referring such evidence and, therefore, instead of entering into minute details of the story and history of investigation as well as entire evidence, it would be appropriate to refer the material evidence only, which confirms innocence or atleast non-involvement of the appellants.

7. The story of the prosecution as per charge at Exh.9 is to the effect that appellant no.1 – husband of the victim, was doubting the character of the victim and was treating her with cruelty, both physically and mentally and thereby the appellants have instigated her to commit suicide and, hence, on the date of the incident i.e. on 20.12.2007, at about 9 p.m., victim has consumed poisonous insecticide in the ‘wadi’ of village Turkha and thereby committed suicide. It is undisputed fact that though accused are native of village Turkha, they are residing in Ahmedabad since long for their livelihood and even at the time of incident, they were at Ahmedabad.

8. PW-1 – Valjibhai Dharamshibhai Prajapati, Exh.16 is complainant and brother of the victim. Though he has narrated about the disturbance between victim and her husband and story of physical and mental harassment by both the accused to his sister, he has to admit that after marriage, his sister was residing at Ahmedabad with her husband and she was residing there throughout her matrimonial life; whereas, the incident has taken place in Turkha village. He further admits that both the accused, though brothers, are residing separately. He also admits that he has never complained against the accused about their alleged physical and mental torture to his sister. He further admits that neither his sister had a mobile nor there was a land-line phone at Turkha village with his parents and, thereby, it negatives his story that on previous day, he has received a phone call from the victim about ill-treatment by the accused when he says that he received phone call on his mobile phone, which he is using since 3-4 years. He could not prove the receipt of phone call from Turkha village as alleged. He also did not confirm the actual date of marriage except that marriage was solemnised in the year 2000. There are several contradictions in his depositions, both with his examination-in-chief as well as complaint. Though he refers the compromise between the husband and wife in presence of his cousin Jagdish and other elders of the society, he did not examine any such person to confirm that in fact there was dispute between the husband and wife for which there was some discussion and settlement thereafter. The veracity of this witness is also questionable inasmuch as he did not want to admit, though he had to ultimately admit that victim was having some medical issues since she was not able to conceive for which she was taking regular treatment, and to admit such fact, he tried to state that victim was having pain in chest and stomach. The scrutiny of entire evidence of this witness makes it clear that though he is complainant, he is chance witness and if there is no corroboration to what he stated on oath, it would be difficult to hold the accused guilty for the offences, which is punishable for more than 10 years.

9. PW-2 at Exh.19 is Dr.K.N.Bathwar. He examined the victim after the incident and, therefore, narrated his story and proved the PM note. Since unnatural death is not disputed fact, no further discussion is required so far as this witness is concerned except to recollect that some of the injuries on dead-body can be possible by some other reason also and death of a person is possible by smell of insecticide used in the ‘wadi’.

10. PW-3 at Exh.26 is Sonalben Valjibhai, wife of PW-1 – complainant and sister-in-law of the victim. She has also tried to depose in favour of the prosecution. However, she failed to realise that she is telling lie when she says that accused are not residing at Ahmedabad, when her husband has admitted that fact, but admits that victim was residing at Turkha since last two months of the incident. Therefore, it is clear and certain that accused were not in direct contact with the victim for atleast two months and, therefore, there cannot be any direct physical or mental torture so as to drag the victim to commit suicide. Though witness has tried to state that the victim has conveyed her about ill-treatment by the accused, it is in general terms and there is no corroboration from an independent witness, more particularly, when witness and her husband admit that the dispute was discussed amongst the elders of the society, when no such third person is examined. PW-4 Rameshbhai Bhanjibhai is a neighbour of PW-1 complainant and, therefore, he supports the prosecution story. But, his deposition makes it clear that his knowledge was only hearsay knowledge i.e. derived from PW-1 and, therefore, when the evidence of PW-1 is not trustworthy, there is no reason to rely upon this witness alone. PW-5 at Exh.29 Haresbhai Pravinbhai, who is serving with the maternal uncle of the victim and, therefore, in one line he simply says that on knowledge of death of the victim, he had been to Turkha and came to know that there was some matrimonial dispute, however, he do not know the reason for death. In any case, he did not prove anything against the appellant.

11. PW-6 at Exh.34 – Ramanbhai Sagrabhai, is investigating the incident and filed chargesheet. He was not cross-examined except a suggestion that he has filed false chargesheet.

12. Above is the only sum and substance of the evidence wherein except the brother of the victim and his wife, there is no other evidence not even parents of the victim have come forward to depose that their daughter has any problem at her matrimonial home for which she has committed suicide. It is also obvious that all the witnesses are silent about settlement between the community, when they did not bother to prove it by calling witness, and there is no evidence regarding provocation to commit suicide. It is also evident that prosecution witness has tried to avoid the disclosure of ailment of the victim though they have to admit it since the treatment papers are produced by the accused, which is at page no.107 to 121 of the paper-book. It is also clear and obvious from the medical evidence that no external injuries were found on the body. When brother of the husband is residing separately, presumption by the trial Court regarding abetment is not justified.

13. Learned APP for the respondent is relying upon PW-5 at Exh.29, namely Hareshbhai Pravinbhai submitting that it is to be treated as corroboration of the evidence by the complainant. She is also relying upon the discussion by the learned trial Judge in paragraph 23 of the impugned judgment wherein trial Court has emphasized more on the issue of doubt regarding character of the victim by both the accused and, thereby, the trial Court has presumed that there must have been physical and mental torture.

14. However, the trial Court has failed to realize that there is no clear proof of date of marriage, and on the contrary, the available evidence on record certainly goes to show that the marriage span is more than 7 years and, therefore, there cannot be a presumption against the appellants – accused.

15. Learned counsel for the accused has also submitted that the accused have undergone more than four years of imprisonment and his minor son is with his parents i.e. with grandfather and grandmother and there is no evidence whatsoever either regarding physical or mental torture or regarding provocation to commit suicide.

16. On perusal of impugned judgment, it seems that the trial Court has mainly relied upon the incident of death and allegations by the complainant, but, while presuming against the accused, the trial Court has committed an error since there is no clear evidence for instigation to commit suicide. Therefore, though, unnatural death of a woman may foster sympathy, it cannot be ignored that such death and incident is not at the house of in-laws or atleast at the house nearby the appellants – accused, when there is clear evidence that the appellants – accused were at Ahmedabad at the material time; whereas the victim was at Village Turkha in Bhavnagar district i.e. beyond 250 kms. It is also evident from the deposition of the wife of the complainant that victim was of Turkha for last two months. Therefore, there is no substance whatsoever in allegation that the accused were beating the victim upon doubt of her character and, thereby, the victim had no option, but to commit suicide.

17. In view of above facts and circumstances, it seems that the trial Court has committed an error in appreciating the evidence so as to convict the accused by impugned judgment and order.

18. For the foregoing reasons, such judgment of conviction cannot sustain. Therefore, I have no option but to disturb such judgment by quashing and setting-aside the conviction of the accused by impugned judgment and acquitting them from all the charges levelled against them. Since the accused are in jail, they be released from jail, if not required in any other case.

19. In view of above decision, Criminal Appeal no.515 of 2011 for enhancement of sentence does not survive, and hence, the same is also dismissed.

20. Since the Criminal Appeal no.349 of 2011 is allowed, the Criminal Misc.Application no.9007 filed by the appellants in Criminal Appeal no.349 of 2011 does not survive and stands disposed of.

21. R & P be sent back forthwith to the concerned trial Court.

(S.G.SHAH, J.)

binoy

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