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Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employment. GUJARAT HC

Mere bail not enough. Conviction under 498a 304B to be STAYED to get backwages. Criminal taint stops employement. GUJARAT HC

/// the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal./////

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2236 of 2019


SHARAD JIVANLAL KURANI
Versus
UNION OF INDIA


Appearance:
MR PH PATHAK(665) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2,3,4,5


CORAM: Hon’ble MR.JUSTICE S.R.BRAHMBHATT
and
Hon’ble MR.JUSTICE A.G.URAIZEE

Date : 06/02/2019

ORAL ORDER

(PER : Hon’ble MR.JUSTICE S.R.BRAHMBHATT)

Heard Shri P. H. Pathak, learned counsel appearing for the petitioner.

Petitioner, who happened to be an applicant in original application being Original Application No.490 of 2012 with M.A. No.79 of 2013 has taken out this petition under Articles 226 and 227 of the Constitution of India assailing the judgment and order of the Central Administrative Tribunal, Ahmedabad Bench dated 31.08.2016, whereby the tribunal has rejected the prayer of backwages for the period from dismissal to the acquittal and reinstatement.

2. The facts in brief, could be gathered from the decision and the memo of petition, deserves to be set-out as under, for appreciating the controversy.

2.1 The petitioner was working as T. S. Clerk with Gujarat Telecom Circle of the Indian Post and Telegraphs Department from 01.01.1983. Later on, he was promoted as Sr. TOA (G) and was working with Telecom District, Rajkot. The Bharat Sanchar Nigam Limited (BSNL) came into existence w.e.f. 01.10.2000 and under an order dated 18.01.2002, the petitioner was absorbed in BSNL w.e.f. 01.10.2000. The petitioner had to face criminal prosecution u/s. 498A and 304B read with Section 114 of the Indian Penal Code in Sessions Case No.138 of 1991. The Sessions Court has acquitted the petitioner vide order dated 22.01.1997. Such acquittal order dated 22.01.1997 was challenged by the State Government, in Criminal Appeal No.335 of 1997. The High Court of Gujarat on 06.05.2004 allowed the said Criminal Appeal No.335 of 1997 and order of acquittal dated 22.01.1997 in Sessions Case No.138 of 1991 was set aside and acquittal was converted into conviction, punishable under Sections 498A and 306 of the Indian Penal Code and sentence of 5 years rigorous imprisonment and fine of Rs.3000/-, in default whereof further rigorous imprisonment of 6 months was awarded. Being aggrieved, the order of the High Court rendered on 06.05.2004 in Criminal Appeal No.335 of 1997 was assailed in Special Leave to Appeal (Criminal) No.3154 of 2004. Main contention of the petitioner is that on account of his conviction in the Criminal Appeal, he came to be dismissed from C/SCA/2236/2019 ORDER services vide order dated 26.09.2006 i.e. after some time of conviction by the High Court and the petitioner was through out enjoying the bail and he was not in custody. The appeal in the Hon’ble Supreme Court being Criminal Appeal No.810 of 2004 was allowed and trial Court’s order was restored. The petitioner has filed Original Application for seeking appropriate relief and reinstatement. The department had reinstated the petitioner on 12.08.2011. The tribunal has rendered the decision on 31.08.2016, whereby, the petitioner was not granted the backwages from the date of dismissal, till the date of reinstatement based upon the fact that the Hon’ble Supreme Court in its decision cited in the judgment, which are reproduced as under, held that the respondent cannot be saddled with liability to make payment for the period, when the petitioner did not discharge his duties.

So the said order was assailed in this petition under Articles 226 and 227 of the Constitution of India.;

(1) “In the case of Ranchhodji Chaturji thakore vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) and Anr. reported in (1996) 11 SCC 603 the Hon’ble Supreme Court considered whether back wages would be paid to the employees for the period between the date of dismissal and the date of reinstatement. The Hon’ble Supreme Court held thus; “The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is : Whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages.”

(2) In case of Union of Inida & Ors. vs. Jaipal Singh reported in (2004) 1 SCC 121, the Hon’ble Supreme Court after expressing the agreement with the view in Ranchhodji (supra) observed thus; “…….If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial Court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service , since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny backwages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing backwages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of backwages are liable to be and is hereby set aside . The respondent will be entitled to backwages from the date of acquittal and except for the purpose of denying the respondent actual payment of backwages, that period also will be counted as period of service, without any break.””

4. Learned counsel for the petitioner has contended that the factum of restoration of service of the petitioner ought to have been appreciated by the tribunal. He has further contended that petitioner was not permitted to serve the department. Therefore, when he was available to discharge his duty, the dismissal order itself was not justified, as it was passed after one and half years of the order of conviction. The Hon’ble Supreme Court has also not said that the conviction and dismissal based thereupon would not entail the order of back-wages even after reinstatement in all cases. The facts and circumstances of the case have to be examined and appropriate relief is required to be granted.

This Court is of the view that the petition requires to be dismissed as the judgment and order passed by the tribunal does not call for any interference for the following reasons;

4.1 The Hon’ble Supreme Court’s judgments relied upon by the tribunal and extract of which were cited herein above, indicates the fatum of conviction and when it was not stayed by any competent Court would entail the originality and when offence under Sections 498A and 306 of the Indian Penal Code, the Hon’ble Supreme Court has held that the employer cannot be saddled with the liability of paying the wages to the employee when he was dismissed on account of conviction irrespective of reinstatement on account of acquittal. We hastened to add here that the situation would have been different if the conviction order itself was stayed by the Court. Mere enlargement of the employee on bail itself, would not amount to stay the conviction and, therefore, stigma attached to the employee on account of conviction remains and it would effect only when the competent Court converted the conviction into acquittal.

Therefore, in our view, the tribunal’s reasonings cannot be said to be suffers from any infirmity, so as to call for any interference. As a result thereof, the petition fails and hereby dismissed.

(S.R.BRAHMBHATT, J) (A.G.URAIZEE, J)

DRASHTI K. SHUKLA

Supreme court : Clear cut case of #gross #abuse of #dowry #laws. Can’t convict based on #inconsistent, #embellished & #improved #witness statements ..

Hon. Supreme court of India “….It is a clear cut case of gross abuse of the dowry laws. We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier……”

**


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 891 of 2004

Dr. Sunil Kumar Sambhudayal Gupta & Ors. …Appellants

Versus State of Maharashtra …Respondent

JUDGMENT
Dr. B.S. CHAUHAN, J.

(1.) This appeal has been preferred against the judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987, by which the High Court has reversed the judgment and order of the Trial Court acquitting the appellants of the charges under Sections 306/34 and 498A/34 of the Indian Penal Code, 1860 (hereinafter called as `IPC‘).

(2.) Facts and circumstances giving rise to this case are that appellant No.1 got married to one Neeru Gupta (hereinafter called as `the deceased’) on 1.12.1978 by way of an arranged marriage. Out of the said wedlock, a female child named Mili was born in 1981. There had been some disputes between the husband and wife on petty matters. Neeru committed suicide on 28.9.1985 by hanging herself in the bathroom when all the other family members had gone outside. Rajesh (PW.2), brother of the deceased, filed a complaint dated 30.9.1985, against the appellants i.e. the husband and parents in law of the deceased, alleging that they had been demanding dowry and had given ill treatment to the deceased, and that is why Neeru committed suicide. The police investigated the matter and filed the charge sheet against all the three appellants on 9.1.1986 under Section 306 read with Section 34 IPC and Section 498A read with Section 34 IPC. The prosecution examined a large number of witnesses to substantiate its case. After the conclusion of the trial, the Sessions Court vide its judgment and order dated 21.5.1987, held that the deceased had committed suicide. However, no role could be attributed to any of the appellants for the same, and the prosecution failed to prove any of the charges beyond reasonable doubt against the appellants. The witnesses examined by the prosecution improved their version with regard to claims of the alleged demands, particularly in respect of the gold ornaments and ill treatment of the deceased. The Trial Court came to the conclusion that the deceased was suffering from epilepsy, psychosis and depression and had been getting regular treatment for the same. Therefore, it was not a case of dowry demand or treating her with cruelty.

(3.) Being aggrieved, the State of Maharashtra preferred Criminal Appeal No.865 of 1987 before the High Court of Bombay and the High Court reversed the order of acquittal, convicted the appellants vide its judgment and order dated 29.4.2004 and imposed the punishment of 3 years RI on the husband, appellant No.1, and 2 years on the other appellants i.e. the in-laws of the deceased. Hence, this appeal.

(4.) Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has submitted that the High Court failed to appreciate the medical evidence and depositions of the prosecution witnesses in the right perspective, as the same could not establish conclusively that the suicide by the deceased could be attributed to the appellants to any extent. It was a clear cut case of suicide because of depression, as the deceased had been suffering from epilepsy and other mental disorders. The deceased had developed an illicit relationship with a family friend, Kake, and a letter written by the said Kake had been in the possession of the other family members and, therefore, they had informed her parents and brother about the said illicit relationship. The medical evidence, particularly, the deposition of Dr. Daulatram Nekumal Gurbani (PW.10) made it clear that the deceased had been suffering from serious depression and such a patient often develops suicidal tendencies. The deceased had also made an attempt earlier to commit suicide in 1985 and she had been taken to the local hospital. Subsequently, she had also been treated at Kanpur. The findings of fact recorded by the Trial Court that there was neither any demand of gold ornaments or any kind of dowry, nor had the deceased been subjected to cruelty, could not be held to be perverse by the High Court to bring home the charges against the appellants under Sections 306 or 498A IPC. The parents-in-law of the deceased were not living at Kalyan, as the appellant No.2 had been transferred to Kurudwadi in 1983 and the deceased was living with her husband i.e. appellant No.1, at Kalyan. The High Court committed an error in shifting the burden of proof to the defence as the court observed that the defence failed to prove its version. In fact the prosecution has to prove its case beyond reasonable doubt and the failure of the defence to prove the defence version cannot be a ground for conviction. More so, as there has been no abetment to suicide, the provisions of Section 306 IPC could not be attracted. Thus, in view of above, the appeal deserves to be allowed.

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(5.) On the contrary, Shri Sushil Karanjakar, learned counsel appearing for the State has vehemently opposed the appeal contending that the High Court’s judgment is based on cogent reasons and on a proper appreciation of the evidence on record. The High Court has correctly reached the conclusion that the findings of fact recorded by the Trial Court were perverse. The High Court is the final court of facts, its findings do not deserve to be disturbed by this Court in a routine manner. There is sufficient evidence on record to prove the demand of dowry and abetment to suicide. Therefore, no interference is required by this Court with the findings of fact recorded by the High Court. The appeal lacks merit and, thus, is liable to be dismissed.

(6.) We have considered the rival submissions made by learned counsel for the parties and perused the record.

(7.) Before proceeding further, it may be pertinent to mention here that Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has informed us that appellant No.3, Sou. Pushamalati Sambhudayal Gupta died in the month of February, 2010. In view thereof, the appeal by appellant No.3 stands abated and we only have to consider the case of appellant Nos. 1 and 2, i.e., the husband and the father-in-law of the deceased.

(8.) The Trial Court after appreciating the depositions of the witnesses and examining the documentary evidence on record came to the conclusion that the alleged demand of gold ornaments or ill- treatment of the deceased could not be established and none of the letters produced by the prosecution has been suggestive of either of ill-treatment or demand of dowry. None of the prosecution witnesses, i.e. the family members of the deceased, made such allegations either while lodging the FIR or in their statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.’). Such allegations had been made for the first time while making statements before the court during trial. There were material contradictions and improvements, which were not mere elaborations of their statements already made. Thus, their statements in regard to those allegations were liable to be discarded.

(9.) The High Court reversed the findings of fact recorded by the Trial Court, mainly relying upon the evidence of Dr. Daulatram Nekumal Gurubani (PW.10), as he had deposed that when he had examined the deceased, she told him that she had been deprived of love and affection by her family members. She had no faith in any member of her family. He had also opined that it was not a case of psychosis, but the deceased had been suffering from a mental disorder. The High Court also reached the conclusion that the defence failed to establish that the deceased was suffering from epilepsy before her marriage. The stay of the deceased along with her parents in a Guest House for two-three days after going from Kanpur to Kalyan has also been taken by the High Court as a circumstance adverse to the appellants. The High Court also came to the conclusions that the intimacy between the deceased and Kake did not mean that she had illicit relationship with Kake; and there had been a demand of a gold chain by appellant No.3.

(10.) As the High Court has reversed the order of acquittal and taken a view contrary to the view taken by the Trial Court, we have taken upon ourselves the task of appreciation of evidence and considered the legal and factual issues involved in the case.

(11.) Letters written by the parties to each other:

(A) A large number of letters had been placed on record before the Trial Court by both the parties. Letter dated 24.2.1979 (Ext.P-26), written by the deceased to her husband, about 3 months after the marriage reveals that there was no problem in the relationship between the husband and wife. In fact, it suggests that they had deep love and affection for each other.(B) Letter dated 3.4.1985, written by appellant no. 2 to the father of the deceased, makes it evident that something had gone wrong and the behaviour of the deceased had been totally unwarranted, as it revealed that she had gone out of the house i.e. on the main road, half-naked and she had brought disrepute to the family of her in-laws. However, they had been tolerating such behaviour. She had lowered their prestige so much that they had not been able to show their faces to anyone. It suggested an illicit relationship between the deceased and one family friend, Kake. It also suggested that the deceased wanted to live with the said Kake, as she had developed love for him and she was willing to elope with him. It also suggested that it was wrong on the part of Smt. Shanti (mother of the deceased) to have been giving wrong advice to the deceased and making false allegations that her in-laws were not treating her properly. According to this letter, the deceased had declared that she was no longer interested in Sunil, her husband, as she did not like him any more and in the end appellant No.2 had expressed great concern about his grand daughter Mili and stated that he was willing to keep her in a hostel so that she could be spared humiliation because of the illicit relationship between the deceased and Kake. The author of the letter suggested to the father of the deceased that he should call the deceased to Kanpur as there could be some untoward/disastrous incident in future.

(C) The undated letter (Ext. P-2) purported to have been written by Kake to the deceased, gives an impression that the deceased had not only deep intimacy, but something more with Kake. Kake was also in possession of some of her photographs which he claimed to be his fortune and said that the same would not be returned to her as she had requested and would be burnt only with the end of his life. This letter also suggested that he had the opportunity to have a physical relationship with her. (D) There are several other letters on record showing that after the development of the intimacy between Kake and the deceased, both families were disturbed and attempts had been made from both the sides to patch up the matter. However, none of the letters suggests any demand of dowry or ill treatment to the deceased amounting to cruelty by the appellants.(E) The letter dated 7.7.1985 written by the complainant, Rajesh, brother of the deceased to appellant No.1, is suggestive in nature. It suggests that appellant no. 1 should try to save the prestige of the family at any cost and forget all that had happened in the past, as the deceased was willing to improve herself and accept any advice given by her husband. Another letter dated 9.7.1985, written by the informant, Rajesh, brother of the deceased to the appellant No.2 revealed that the entire family of the deceased had been making serious attempts at re-conciliation. Even in this letter there was not even a whisper/mention of any demand of dowry or of ill treatment.

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(F) The letter dated 18.7.1985 written by the father of the deceased to his son Rajesh (PW.2) from Kalyan made it clear that the author along with the deceased had gone to Kalyan to meet the family of the appellants, and they were not welcomed by the mother-in-law of the deceased at the initial stage. They had been staying in Modern Guest House in the same colony. Appellant No.1, the husband of the deceased suggested that the  deceased should meet her mother-in-law and apologies, which was accepted by the deceased. The deceased met her mother-in-law and apologized. After some time, the mother-in-law became quiet and calm and started behaving properly and all the appellants treated them well. (G) The un-dated letter (Ex.P-21) written by the deceased to her father revealed that her mother-in-law wanted her to separate herself from the other members of the family and her parents. It also gave the impression that her mother-in-law was asking for a gold chain (“zanzir ke liye keh rahi thi”) and created problems for her in meeting her husband and daughter. After the arrival of her brother-in-law to Kalyan, the behaviour of her mother-in-law had improved a lot, but her husband being busy in his practice and did not have sufficient time to be with her.

(H) From the original record, a letter dated 1.4.1985 (Ext. 16), by the mother-in-law to the father of the deceased seems to have been written after losing hope completely and concluding that the deceased had become incorrigible. The said letter suggests that the relationship between the deceased and her husband had come to an end. The deceased had become a woman of bad character. They had tolerated her to a great extent. The deceased had been tutored by her mother; she had been misbehaving with them and it had become difficult for them to tolerate her any more. The deceased had been using abusive language to all the family members. She had lowered their reputation and they had been very unlucky to have such a daughter-in-law. As she wanted to live with Kake and not with her husband, they did not want to have any relationship with her. [Appellant No. 3 had denied writing the said letter]. (I) Another letter dated 22.5.1985, is on record written by Jai Narain Gupta from Sandila, U.P. (who seems to be relative of the deceased) wherein a suggestion had been made to patch up the matter.  The author has drawn the inference that the problems were being created for the deceased, and she has been treated with cruelty as her in-laws did not receive dowry according to their expectations, though, there is no allegation that there has been any demand of dowry and for not giving the same.

(J) The undated letter written by the deceased to her aunt Manorma Gupta at Barabanki does not suggest anything against the accused, as the deceased had written that everything was fine and that she would discuss things when they met. The undated letter written by her aunt in reply, suggests that there was something amiss. She had mentioned that the whole family was very disturbed, but they were not able to suggest any solution. There was nothing to worry or fear as all of them were with the deceased and she also told the deceased to face things with courage, as she had equal rights to stay in the house and to fight for justice.

(12.) Depositions of Prosecution witnesses (Relevant parts):

(I) Dr. Mohan Kulkarni, a practicing doctor residing in the same building (PW.1)-“I know both accused Nos. 2 and 3 used to occasionally visit their block at Waldhuni (Kalyan) after transfer of accused No.2 at Kurduwadi…..I have no any personal knowledge about the relations in between accused No.1 and his deceased wife…..It is true that I was told by accused No.1 some four or five month before the incident that his wife Guddi was getting the attacks of epileptic fits. The ailment of epileptic fits is of neurological problems. I say that these medicines namely used in neurological problems as gardenal, have their side effects on the patient. E.C.T. (Electro Convulsive Therapy) treatment is given to mental patients of some sort. If a person shows abnormal signs then he is branded as a mental patient. I say that those who have tendency of mental depression they tend to commit suicide. It is true that mental disorder in some cases creates mental depression.”

(II) Rajesh (PW.2) (Brother of the deceased)-

“It is true that there was nothing wrong in between the accused and Neeru till the delivery of a female child and everything was smooth and cordial, in between them……I cannot say why it is not disclosed specifically in my complaint that as accused no.3 instructed Neeru to fetch golden ornaments on account of my marriage ceremony, my father presented with four golden bangles in the ceremony…….I cannot say why it is not stated in my complaint that after the birth of her daughter we presented Neeru with two golden ear rings and golden chain of two tolas because those were demanded by her husband’s family members…..

As I did not remember the exact account of the remaining ornaments presented to Neeru by us as and when demanded by her in laws. I did not narrate about them in the complaint. Except my words I have no documentary evidence to show how many golden ornaments were presented to Neeru and when……

There is no reference to golden chain any other letters except letter (Exh.21) sent by Neeru to my parents and myself. That golden chain we give to Neeru in 1985 was weighing 2 and = tolas…..

The only reference about the golden chain asked for by accused no.3 appears in letter (Exh.21) sent by Neeru to us after she was reached at her in laws place on 24.8.1985.”

(III) Manorma (PW.7) Aunt of deceased-

“She told me that accused persons had demanded a golden chain from her and hence she was not being called back now shown inland letter dated 10.7.1985 which is written by me to Neeru alias Guddi at Kanpur…..

I have not stated before the police that when I met Neeru in March 1985 she told me that accused persons were demanding more golden ornaments from her and that they were keeping her starving and were not allowing her to meet her daughter Mili, and that she was craving to meet Mili. As I was not well at that time I forgot to narrate the things before the police. I have told this fact for the first time to the court……

I have not written specifically in my two letters (Exh.39 and 40) addressed to my brother and sister in law that Neeru told me that she was subjected to physical assault by the accused and that she was kept starving by the accused and further accused demanded golden ornaments from her.”

(IV) Ramkishan Gupta (PW.8) Father of deceased-

“I then arranged for a golden chain and sent Rajesh along with Neeru with a golden chain to Kalyan on 24.8.1985. Rajesh handed over golden chain to accused, and left Neeru in her in laws house and returned back to Kanpur. After 15 days we received a telegram sent by brother of accused no.1 Pradeep Kumar that all was well in the house at Kalyan. On 29.9.1985 we received a phone call informing us the said news of death of Neeru…..

I have not stated in letter (Exh.23/1) that while we were standing out side the house of accused and requesting them to accept Neeru, accused no.3 demanded a golden chain from us and refused to allow Neeru to see her daughter in side the house, because Rajesh already knew all these things at Kanpur. I have no documentary evidence except my words to show that I had written to my sister Manorama and to my brother that accused persons were demanding……

I have not stated in either of my two statements before the police that when accused no.3 came to attend the wedding of my son Rajesh she demanded golden ornaments for herself (Accused no.3). I have not stated in either of my two statements before the police that even after the delivery of Neeru in 1981 none of the accused persons came to Kanpur to visit her. I have not stated in my first statement dated 1.10.1985 before the police that when Neeru came for delivery at Kanpur she informed us that accused no.3 was demanding golden ornaments from her…..

I have not stated in either of my two statements specifically that when I and my wife went to the house of accused on 17.2.1985 we met all three accused at the entrance and all of them asked me whether I had brought golden ornaments or had come empty handed, and that they had already asked Rajesh to bring along golden ornaments and whereupon I told all three accused that I had not brought along golden ornaments as I was not having them and where upon all three accused pointed out towards Neeru and said as to how all those accused had driven Neeru to such a condition and that they would further make her condition miserable. I have not stated in either of my two statements before the police that when Neeru returned back to our house in March 1985 she told us that all accused told her that till their demand for cash and ornaments was not made, they would not allow Mili to go along with Neeru. I have not stated in either of my two statements before the police that when accused nos.2 and 3 had come to attend the marriage ceremony at Kanpur in the month of March 1985 accused nos.2 and 3 did not allow me to meet Mili. I had not stated in either of my two statements before the police that when Rajesh brought back Neeru in the month of June 1985 at Kanpur Neeru told me that she was not allowed to meet her daughter Mili in the house of her husband and accused no.3 asked her if she had brought golden chain or not.”

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(V) Daulatram Nekumal Gurubani (PW.10), Doctor-

“In the mid of February, 1985 accused No.1 told me that his wife has become aggressive and was not co-operative and also used to become violent. When I reached the house of accused No.1, there I met accused No.2 and Accused No.3. I examined Neerubai, the wife of accused No.1. She was lying in store room and was not in a mood to talk anything with me even she become aggressive with me in the sense she was not co-operative with me. Accused No.1 told Neerubai that I was psychotherapist of Thane Mental Hospital and then Neeru asked me whether I treated my wife in the same way she was being treated by her husband accused No.1. She showed me injury marks bruises on her both knees and a small injury on the lower lip and also bruises on the back. She also told me that she was beaten by her family members and by a ward boy of hospital. She also told me that she had been maltreated by her husband, by her mother in law. She also told me that, her ornaments were being worn by accused No.3. On seeing the injury marks on her person I talked with accused No.1 and asked for details. Accused No.1 told me that as Neeru had become violent and we were controlling her it was possible that she sustained small bruises…..

Accused No.1 told me that his wife was suffering from epileptic fits since before her marriage and that she was on Geroin tablets. I told him that there were side effects of this drug and the drug should be stopped after 3 years. He told me that she was on drug for so many years and she is maintained on that drugs. I told him to continue with above tablets and consult Neurologist if she is suffering from the above ailments. I visited her place for 4 times in the same month i.e. February, 1985. During all those visits I never found any signs of epileptic fits……

Cross examination:

I started my practice in January 1985 at Ulhasnagar and handed the case of Neeru in February 1985 after I passed my M.D. Degree in Psychiatry in July 1984 though I joined mental hospital at Thane as Medical Officer……

I agree that even in major epilepsy this medicine Geroin is prescribed. It will not be correct to say that because I prescribed medicine Geroin I was convinced that the patient was suffering from major epilepsy. Even though I knew that drug Geroin carried side effect yet I prescribed it though I knew she had no sign of epilepsy because once the drug is started it cannot be abruptly discontinued otherwise the patient may get fits. I stick to the proposition that if an anti- convulsent drugs such as Geroin is given for long period and withdrawn abruptly then she may get convulsions. I am backed by authority. Clinical examination alone cannot decide whether a patient is suffering from epilepsy or not. Patient of epilepsy may have a grand-mal or petit-mal. It is true that dose of Geroin daily is more in case of grand-mal than in the case of petit-mal. It is true that a maximum dose of Geroin tablets is 4 tablets 3 times a day. I agree that brain scan, EEG and X-ray of all the skull are required for investigations in cases of epilepsy….prescribed by me to Mrs. Neeru wife Exh.46 are normally prescribed in a case of epilepsy with psychoses and in depressive state….I have prescribed to Neeru E.C.T. treatment…..It is not stated in my prescription letter (Exh.46) that if the drug as Sr. Nos. 1 to 5 prescribed to Neeru do not work out, then E.C.T. therapy should be started to her, though verbally told her so. It is true that I have not specifically stated in my prescription letter (Exh.46) at any time during my visits to Mrs. Neeru on 4 or 5 occasions that as the drugs at Sr.Nos. 1 to 5 in (Exh.46) were working, E.C.T. therapy was not essential…..I have not stated in my police statement that the room in which Neeru was found was an unkept room or a store room. I have not stated before the police that when I was introduced to Neeru as a psychiatrist, Neeru asked me whether I treat my wife in the same way as she was treated by her husband. I have not stated before the police that before Neeru was examined by me she told me that she was harassed by accused persons and that her ornaments were worn by accused No.3…… I have not stated before the police that I examined Neeru and found that there was not any gross psychological problem but she was mentally disturbed and I found that she had no faith in any of the members of the family and I found that she was deprived of love, affection and sympathy of her family members. I have not stated before the police that accused No.1 told me she was also epileptic but I did not find any signs and symptoms of that disease with her. I have not stated before the police that I requested accused No.1 where was the X-ray of skull and other investigation papers and accused No.1 told me that his wife was suffering of epileptic fits since before her marriage and that she was on geroin tablet. I have not stated before the police that I told him that there were side effects of this drug and the drug should be stopped after 3 years…..

I agree that Mrs. Neeru did not meet me in April 1985 but she brought the letter of April 1985 of Dr. S. Mahendru in the month of June 1985. I have not stated before the police that Neeru either met me in April 1985 or in June 1985. Beyond my word there is no any other evidence to show that in September 1985 accused Nos. 1 and 2 came to me. I have not stated before the police that both accused Nos. 1 and 2 later on told me that Neeru committed suicide and that they needed certificate about her mental condition…..”

(VI) Dr. Ramesh Kumar Mahendru (PW.12) – Doctor from Kanpur :

xxx

“…..I say that the experts prescribed E.C.T. (Electro Convulsive treatment) in cases of retarded depression and, manic depressive psychosis. I am shown the chart today by the learned Defence counsel in which the prescription of medicines advised by Dr. Gurubani for Niru and by me are practically same except with a difference that the medicines mentioned at Sr.No.4 does not potentiate as anti depressants but it prevents the reactions caused by the medicines stated at Sr.No.3 in the chart…..

Narco therapy is a kind of suggestive psycho therapy under the influence of narcotic drugs such as barbiturates.”

(13.) The above referred letters and the depositions of the witnesses have to be understood/appreciated within the four corners of law, particularly dealing with the issues of reversal of the order of acquittal by the appellate court and discrepancies/improvement/embellishment and contradictions in the statements of the witnesses.

(14.) Material Contradictions:

While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152).

(15.) Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

(16.) The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).

(17. )In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440).

(18.) In State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC 1390, while dealing with this issue, this Court observed as under: “In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.”

(19.) The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P., AIR 2006 SC 2908; and Arumugam v. State, AIR 2009 SC 331).

(20.) In Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186, this Court examined the issue and held: “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”

(21.) While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.

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Appeal against Acquittal:

(22.) It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of  acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

(23.) Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court’s acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

(24.) In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence’, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Shailendra Pratap & Anr. v. State of U.P., AIR 2003 SC 1104; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008  SC 2066; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445); and Babu v. State of Kerala, (2010) 9 SCC 189).

(25.) The instant case is required to be examined in light of the aforesaid legal principles. Undoubtedly, the record reveals that at an initial stage the relationship between husband and wife had been very cordial and they had love and affection for each other. At a later stage when the family suspected an illicit relationship between the deceased and Kake, the appellants were very much disturbed. Both the families made serious attempts to re-concile and patch up the matter and the appellants agreed that the deceased may be given an opportunity to improve her behaviour. Thus, admittedly there was a doubt that the deceased had developed serious intimacy with Kake, which was much more than what happens in normal course with a family friend. Therefore, the finding recorded by the High Court that the intimacy between them to the extent of having an illicit relationship was not there, loses its significance, for the reason that even the suspicion of such a matter becomes the talk of the town and the reputation of the family remains at stake. The protests on the part of the appellants even on a mere suspicion and asking the deceased to keep distance from Kake or improve her behaviour is not something which can be termed to be unwarranted or uncalled for.

(26.) There is ample evidence on record to suggest that the deceased had been suffering from psychosis/mental dis-order. According to Dr. Daulatram Nekumal Gurubani (PW.10) the ailment was not of a very serious nature. However, the prescriptions given by Dr. Gurubani (PW.10) reveal that the deceased had been suffering from serious mental dis-order, otherwise such medicines could not have been prescribed by him. He has prescribed the deceased the medicine Geroin because he was convinced that the deceased was suffering from major epilepsy, in spite of the fact that he was fully aware that the said drug has side effects. He also deposed that mere clinical examination alone is not sufficient to decide whether the patient is suffering from epilepsy. He further deposed that such medicine can be given to a person suffering from grand-mal epilepsy. More so, had it not been the case of serious ailment of mental dis-order, the question of prescribing and giving E.C.T. to the deceased could not arise.

(27.) There had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law (A.3). More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact-situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No.3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc.

(28.) The deposition of Dr. Mohan Kulkarni (PW.1) reveals that E.C.T. treatment is given only to mental patients, who have mental depression and tend to commit suicide; the ailment of epileptic fits is a neurological problem. His statement also suggests that her in-laws had not been living with her after 1983, as the appellant No.2 stood transferred to Kurudwadi and had shifted to the said transferred place and her in-laws had been visiting Kalyan occasionally. This view stands fully corroborated by the deposition of Dr. Ramesh Kumar Mahendru (PW.12), Reader in Psychiatric Medicine, Mental Hospital, Kanpur, as referred to herein above. He had examined the deceased and prescribed medicines for manic depressive Psychosis. The prescription of this witness substantially remained the same as of Dr. Daulatram Nekumal Gurubani (PW.10). The cumulative effect of the medical evidence given by three Doctors leads us to the conclusion that deceased had been suffering from manic depression and certainly had some mental/epileptic/ psychosis problem.

(29). So far as the other witnesses are concerned, they are the father, brother and aunt of the deceased. Thus, being close relatives, in such facts and circumstances they might have developed inimical feelings towards the appellants, since they came to the conclusion that the appellants were responsible for the death of the deceased. However, their depositions are full of contradictions and have marked improvements from their statements recorded earlier. The exaggerations and improvements are of such a nature that they make their whole statements in respect of the demand for gold ornaments and/or the ill-treatment of the deceased liable to total disregard on these counts. Gold ornaments had been given by the complainants to the deceased out of love and free will at the time of the marriage of Rajesh (PW.2) and at the time of delivery of her daughter Mili. Undoubtedly, Rajesh (PW.2) had alleged in the FIR that there had been demand of gold ornaments by the appellants without any details of the same, however, he could not furnish any explanation as why this fact had not been disclosed to the police when his statement and supplementary statement was recorded. Also no such inference can be drawn from any of the letters on record. Only one un-dated letter (Ext.P-21) written by the deceased to her father suggests that her mother in-law had been asking for a chain. More so, as the chain had been given by the complainants to the deceased just 2/3 months before her death, and there is no evidence that any further demand had been there, the issue became totally irrelevant in terms of proving the motive, and it cannot be presumed that any demand had been made. More so, even if it is presumed that there was some demand by appellant No.3, as she is no more, and her appeal stands abated, this issue becomes totally irrelevant for the reason that no such allegation had ever been made against the remaining two appellants.

(30). So far as the stay of the deceased with her parents after coming from Kanpur to Kalyan at the guest house is concerned, admittedly at that time the relations between the parties were strained because of the suspicion that the deceased was having an illicit relationship with Kake. However, it has been admitted by Ramkishan (PW.8), father of the deceased, that subsequently the relations became normal and they were invited at the house of the appellants after the deceased tendered an apology to her mother-in- law. The said witness did not state in his statement before the police that when he went to see the appellants on 17.2.1985, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under Section 161 Cr.P.C. This statement is to be discarded as it is not safe to hold the appellants guilty of the offences alleged against them on such an improved version.

(31.) The deposition of Manorma (PW.7), aunt of the deceased is by no means different, as she had also made major contradictions and improvements in her statement made in court. She had not stated in her police statement that the appellants were demanding gold ornaments from the deceased and her family or that the appellants were keeping the deceased starving and were not allowing her to meet her daughter, Mili. The explanation furnished by her that she had not been feeling well and had forgotten to narrate such material facts, cannot be believed.

(32.) The statement of Rajesh (PW.2), the brother of the deceased is also full of contradictions and suffers from major improvements. The contradictions are of such a nature that they impair the whole of his evidence. The same cannot be held to be clarificatory. He was not in a position to state what ornaments his family had presented to the deceased on different occasions. More so, it was not even stated in his police statement that after the birth of Mili, his family had given gold ornaments as demanded by the appellants. He could not even furnish an explanation as to why the demand of a gold chain is not evident from any of the letters between the parties, except in the letter (Ext. P-21).

(33.) The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No.2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, 1897 and held as under: “There is a presumption of service of a letter sent under registered cover…. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him…..The burden to rebut the presumption lies on the party challenging the factum of service.” (Emphasis added) A similar view has been re-iterated by this court in Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj & Ors., (1996) 7 SCC 275; and Shimla Development Authority & Ors. v. Santosh Sharma (Smt.) & Anr., (1997) 2 SCC 637.

In Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872.

In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them.

However, for the reasons best known to the prosecution such an exercise has not been undertaken.

(34). The instant case is required to be examined from another angle also. The marriage took place on 1st December, 1978. The  complainant party could not place any correspondence on record prior to February 1985 except letter dated 24th February, 1979 written by the deceased herself to her husband. However, it goes in favour of the appellants. Therefore, it is evident that the controversy arose only after the expiry of the period of more than 6 years from the date of marriage. It is quite possible that the dispute arose between the parties only because of the suspicion that the deceased had developed an illicit relationship with Kake. Had there been a demand of dowry or ill-treatment to her on any other ground by the appellants, there could have been some correspondence between the parties during the aforesaid long period of more than 6 years. None of the prosecution witnesses had made any allegation of any demand of dowry or ill treatment during the said earlier period. It is unnatural that after expiry of such a long period, the appellants suddenly became greedy and started demanding ornaments and for not meeting their demand, started ill treating the deceased to the extent that she had to commit suicide. Thus, the allegations made by the complainant party remained unnatural and improbable. More so, the demand had been only of a thin gold chain which could not be very expensive in those days, especially given the socio-economic status of all the parties. For the gold ornament worth such a petty amount after the expiry of a long period of about 6 = years, from the date of marriage, it is not natural that the appellants could treat the deceased with such cruelty that she was drawn to commit suicide.

(35.) It is a clear cut case of gross abuse of the dowry laws. We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier. The High Court did not dislodge the reasons given by the Trial Court for acquittal. The High Court did not make any reference to the deposition of Dr. Daulatram Nekumal Gurubani (PW.10) in the cross-examination and dealt with the case very casually, adopting a very superficial approach to the whole matter and brushed aside the allegation of an illicit relationship for which there had been documentary evidence on record without recording any cogent reasons for the same. The High Court did not make any attempt to appreciate the evidence with accuracy and reversed the findings of the trial court which were based on the evidence on record and for which detailed reasons had been assigned.

(36.) In view of the above, the appeal succeeds and is allowed. The judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987 is set aside. The judgment and order of the Trial court in Sessions Case No. 25/1986 dated 21.5.1987 is hereby restored. The appellants are on bail. Their bail bonds stand discharged.

……………………………J.

(P. SATHASIVAM)

…………………………

…J.

(Dr. B.S. CHAUHAN) New Delhi, November 11 , 2010


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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

just filing 4 divorce does NOT save you from 304B (dowry death) case.Only after divorce(decree), U R saved !!

  • Just filing a Divorce does NOT save you from 304B or dowry death case
  • Your are saved from 304B ONLY after your get your divorce (or after 7 years!!)
  • Generally divorce cases will run for a long long time and by they you may be dead !! so think twice

 

No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

=========================================

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

baweja/

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