Benefit of doubt to be extended, if different opinions arise from the same set of facts and evidence

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1413 of 2007
With
R/CRIMINAL APPEAL NO. 106 of 2008
With
R/CRIMINAL REVISION APPLICATION NO. 596 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G. SHAH

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

BHARATBHAI JAMNADAS RAMAVAT

Versus

STATE OF GUJARAT

Appearance:MR SB TOLIA, ADVOCATE FOR MR JAYPRAKASH UMOT(3581) for the MR KL PANDYA, ADDL PUBLIC PROSECUTOR(2) for the

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 05/07/2018 CAV JUDGMENT
1. Heard learned advocate Mr. S. B. Tolia with learned advocate Mr. Umat for the appellants – accused in Criminal Appeal Nos.1413 of 2007 and 106 of 2008, as well as for all the respondents in Criminal Revision Application No.596 of 2008, whereas learned advocate Mr. S. T. Kotia for original complainant being petitioner in Criminal Revision Application No.596 of 2008 and learned APP Mr. K. L. Pandya for the State being prosecuting agency. All these matters are arising out of common judgment dated 15.11.2007 in Sessions Case No.36 of 2005 by the Additional Sessions Judge of Fast Track Court of Porbandar @ Porbandar.

2. Before the Sessions Court, in such Sessions Case in all there were 5 accused, amongst which accused No.1, appellant of Criminal Appeal No.106 of 2008 is husband of the victim, since his wife has died at his house. Whereas accused Nos. 2 and 3 are brothers of the accused No.1. Thereby brother in law of the victim. Accused Nos. 4 and 5 are respectively father in law and mother in law of the victim. However, by impugned judgment, the Sessions Court has already acquitted accused Nos.2, 3 and 5 and, therefore, when the Sessions Court has convicted accused Nos. 1 and 4 i.e. husband and father in law of the victim, both have preferred separate appeals considering the fact that conviction of both of them is different.

3. By impugned judgment, the Sessions Court has convicted the accused No.1 – husband of the victim to undergo 10 years rigorous imprisonment under Section 306 of the Indian Penal Code and Rs.25,000/- penalty or to undergo two years rigorous imprisonment for non payment of such fine. Whereas he is also convicted for 3 years rigorous imprisonment with Rs.10,000/- fine and for non payment of fine, 1 year of rigorous imprisonment under Section 498A of the Indian Penal Code. However, both these conviction are to be undergo concurrently and, therefore, practically total conviction is 10 years and Rs.35,000/- fine.

4. Whereas accused No.4 being appellant in Criminal Appeal No.1413 of 2007 i.e. father in law of the victim has been convicted only under Section 498A of the Indian Penal Code with a punishment of three years rigorous imprisonment and Rs.10,000/- fine or to undergo 1 year rigorous imprisonment for non payment of fine.

5. In both appeals, appellants being original convict accused have challenged the order of conviction and sentence. Whereas in Criminal Revision Application No.596 of 2008, original complainant being father of the victim has challenged the impugned judgment for converting the conviction of accused Nos. 1 and 4 and acquittal of accused Nos. 2, 3 and 5 into conviction under Section 302 of the Indian Penal code instead of conviction under Section 306 and 498A of the Indian Penal Code.

6. In view of above factual situation, all these three matters were heard together and disposed of by this common judgment.

7. If we peruse the record of Criminal Revision Application No.596 of 2008, by an order dated 04.08.2010 it was simply ordered to be tagged along with such criminal appeals only because of the disclosure before the Court that appeals preferred by convicted accused are admitted and pending. Thereby, practically such revision was never considered on merits and never admitted for further consideration. It is also found from record that though original complainant has filed, revision petition against acquittal, prosecution agency has not challenged the impugned judgment, in any manner.

8. Therefore, at first instance, it would be necessary to verify and scrutinize that whether there is any substance in the appeal or not and if there is substance in the appeal, which requires to modify such impugned judgment of conviction or sentence, then there is least chance of interfering with the judgment of acquittal, unless, there is an extraordinary case in favour of prosecution to modify the acquittal into conviction in revision petition by the complainant, more particularly, when prosecution has not challenged such judgment either for converting the conviction of accused Nos. 1 and 4 from conviction under Section 306 and 498A of the Indian Penal Code to conviction under Section 302 of the Indian Penal Code or reversing the acquittal of accused Nos. 2, 3 and 5 so as to convict them under Section 302 of the Indian Penal Code.

9. All the parties have argued the matter at length and refer several evidence on record which is according to them confirming their stand so as to conclude that death of the victim was not suicidal, but she was killed by the accused. Before discussing the evidence and factual details, let us recollect the case of the prosecution before the trial Court in nutshell, which can be summarized as under;

9.1 Accused No.1 Harshad and victim Alpaben @ Alkaben were got married on 08.08.1997. – The fateful incident wherein Alpaben was found dead in her room was happened on 04.10.2004 i.e. after 7 years and 2 months from the date of marriage and, therefore, there is no scope of considering the presumption against husband or to shift the burden of proof upon him so far as incident of death of his wife is concerned. – As usual there is a story of ill-treatment by the in laws to the victim contending that after marriage there was no disturbance for initial 8 months and all the accused and victim were residing in joint family but thereafter, all the accused have started ill-treating the victim and she was harassed and tortured. There is specific allegation that the accused No.4 father in law has asked for undue demand by holding the hand of the victim and since, victim could not tolerate such demand, she had gone to her parental house at Bhavnagar and stayed there for 5 years. Thereafter, upon compromise between the parties, she had been to the house of her in laws at Porbandar where she stayed for 10 days but during such period again, accused have started quarreling with her on small issues and again harassed and tortured her and also beaten her. – It is also alleged that thereafter when she had been to her inlaw’s house during Janmastami, she was again ill treated and she had went back to her parental house. Because of such ill treatment, victim has conveyed to her parents that she does not want to stay in the house of her in laws and she would like to stay separately with her husband. However, it was not agreed upon by the accused and, therefore, she has asked for divorce from her husband. However, accused has denied to get divorce from her and with a common intention of all, the accused with the intention to kill her, when she had been to Junagadh at her sister’s house, called to come to Porbandar under the pretext of getting transfer from Bhavnagar to Porbandar. It is an undisputed fact that victim was serving as a teacher in Bhavnagar district and that her parental house is at Bhavnagar, whereas her matrimonial house at Porbandar which is at sufficient distance to reach in short time. – It is further alleged that on 04.10.2004 when victim had been to the house of her in laws for getting transfer from Bhavnagar to Porbandar at about 1:00 a.m. i.e. after midnight, the accused have tied up the victim’s hands by rope and killed her by pressuring her neck and for the purpose they have created unlawful assembly. Therefore, after investigation, investigating agency has filed a charge – sheet under Sections 34, 302 and 498A of the Indian Penal Code against all the accused.

10. Whereas the case of the accused is to the effect that, in fact a separate flat was purchased for accused No.1 and victim and she has agreed to get her services transferred from Bhavnagar to Porbandar, for which she came to Porbandar but she wants to stay separately immediately from day one and when her in laws have conveyed her that to start a separate house with kitchen requires some preparation and financial support and, therefore, asked her to wait for some time. It is also submitted that otherwise separate house is purchased for husband and wife, there was no reason to deny to allow them to stay separately but to start a new house they need some time, but unfortunately, victim does not want to wait for any more and instead of waiting for couple of days, she has committed suicide by hanging herself with a fan in the house of the accused and, therefore, it is the case of a suicide and not murder and thereby, they should be acquitted.

11. Before discussing any evidence or any details, some undisputed facts may be recollected here vize; (1)The incident was happened on 04.10.2004 i.e. after 7 years and 2 months from the date of marriage being 08.08.1997. (2)The total stay of victim with an accused i.e. husband and in laws is seemed to be only for less than a year in total i.e. 8 months and first instance and couple of days on two occasions thereafter, that too after the gap of 5 years. (3)There is no evidence that after those 3 occasions when she has been alleged to have ill treated she has ever been at the house of her in laws.

(4)It is not the case that she was residing with the in laws for a long time for last 6 years.

(5)It is also an undisputed fact that irrespective of cause and reason of allegations, the in laws have agreed to allow the accused No.1 and victim to stay separately and for the purpose, flat was purchased.

(6)It is an undisputed fact that even after marriage, victim has joined the services as a teacher in Bhavnagar district knowing fully well that such services is not transferable. (7)It is an undisputed fact that husband is having practice as BHMS Doctor at Porbandar and, therefore, he is unable to shift his residence from Porbandar to somewhere in Bhavnagar district where he has to start fresh, becuase in Porbandar he has got reputation since his father was also BHMS Doctor who is accused No.4.

(8)It is also an undisputed fact that though accused No.1 had called the victim to come to Porbandar, the victim has on her own agreed to go to Porbandar with accused No.1 so as to get her services transferred from Bhavnagar to Porbandar district. In that case, there is least chance of having any apprehension of ill treatment by her in laws, else she would not agree, either to go to Porbandar or to get her services transferred from Bhavnagar to Porbandar.

12. Therefore, considering the circumstantial evidence, prima facie, it seems that when victim has agreed to get herself transferred from Bhavnagar to Porbandar and went to Porbandar for the purpose, there may not be any ill treatment at least by the husband, when it is an undisputed fact that she is ready to stay at Porbandar, if her husband resides separately from his family.

13. In view of above factual details, prima facie, it seems that there is no reason for the respondents to kill the victim, who was otherwise not residing at her in-laws’ house, since more than 5 years and when she herself has asked for divorce and accused No.1 has refused to take divorce from her. Otherwise to get rid from the victim, accused No.1 would have agreed to get divorce and would not take a risk of calling her at his house and then to kill her, as alleged.

14. However, rival contentions are in detail and it is mainly with reference to the position of dead body after the incident and cause of dispute between husband and wife with reference to improper behavior by the accused No.4 being father in law of the victim. 14.1 So far as cause of death is concerned, it is vehimitically argued by the complainant and prosecution that there were marks on hand to show that there were injuries as if hands were tied. For the purpose, they have relied upon the evidence of Dr.Ganesh Pryarelal Govekar being PW No.13 at exhibit 17. It is submitted by the complainant and prosecution that said Doctor, who has performed the Postmortem of the victim at Bhavnagar has categorically deposed in para 11 to 13 that ligature mark on wrist, was possible by mudamal article No.2, which is found from the place of incident and ligature mark on neck of the victim is possible by piece of sari which was used to kill the victim. It is also observed that if somebody was killed by hanging then there will be no injury mark on other parts of the body. When more than one person tied up the hands of the victim and hanged her, then there is a possibility of injury which found on the body of the victim. However, such 2-3 suggestions that too put forwarded as suggestion in examination in chief alone and by the Doctor of Bhavnagar who has performed postmortem second time then the original postmortem performed at Porbandar and when complainant is residing at Bhavnagar, one has to be careful in coming to the conclusion solely based upon such suggestive questions and answers for confirming conviction, because, it is an undisputed fact that except these three lines, entire evidence on record including deposition of some witnesses so also postmortem note issued by him confirms that the death of the victim was due to hanging and even in his oral evidence, the same doctor has admitted during cross examination in para 14 to 45 as under;

‘Gujarati’ is not his mother tongue. – Injury Nos. 2 to 5 mentioned in Column 17 was not examined by cutting the skin and thereby, it was not examined internally. – No such injury was examined by microscopic test. – The outer appearance confirms bruises (continuance) only.- He admits observations on page 145 in the medical jurisprudence and toxicology by Dr. K. S. Narayan, which confirms that above injuries are called postmortem staining.

He admits that in column 12 of the postmortem note, it is categorically disclosed that the postmortem lividity on posteriors because of pressure. Postmortem lividity is also seen on both heels and the word ‘postmortem lividity’ is synopsis to word ‘postmortem hypostasis’ and word ‘postmortem staining’. – He admits that after death because of stoppage of blood circulation, there would be postmortem staining due to capillovenous distention, which shows bluish purple or purplish red marks which looks like bruises or continuance. It is caused by stoppage of circulation, the stagnation of blood in blood vessels, and its tendency to sink by force of gravity. The blood tends to accumulate in the small vessels of the dependent parts of the body. Filling of these vessels produces a bluish – purple colour to the adjacent skin. – He also admits that other disclosures from the different medical jurisprudence which confirms that if body would move, such postmortem staining was also get changed. – In paragraph 25 now he categorically admits that it is true that when dead body of the victim was brought from Porbandar to Bhavnagar, distance between which is approximately 300 kms. in vehicle by keeping her dead body laying in such vehicle, it is possible that because of movement of vehicle, the marks were found on the hands of the body of the victim and that such postmortem stains was possible during such transfer and that when he has examined the dead body the blood in the dead body was in fluid condition and thereby lengthy cross examination in previous para is material wherein Doctor has to admit that such injuries were possible because of postmortem staining and more particularly when dead body was transferred for approximately 300 kms. – Doctor has further admitted in paragraph 26 that postmortem lividity were defused and spread and he admits all the comments in different medical jurisprudence which were placed in his hands and read it, wherein it is categorically stated that isolated patches of postmortem lividity may be mistaken as bruises. – Doctor has admitted all other comments read out to him in medical jurisprudence in paragraph 27 to 42 also. However, its reproduction is not material at this stage, when doctor has categorically admits that it is true that to decide that whether signs on dead body is of postmortem staining or bruises such injury is to be examined by opening that part of the body. – It is admitted position that it is categorically admitted by the doctor that he has not examined such injuries the way in which it is required by opening that part of the body. – Doctor has admitted that if body part is cut and open and if it is bruises, blood would found in clotted position, whereas if there is post mortem staining and body part is cut and opened, then blood will not be found in clotted position and it would found in liquid position as a drop. Even at the cost of repetition it is recollected that thereby unless such injuries are verified by cutting the body, even doctor cannot opined that whether it is postmortem staining or bruises. Therefore, even if in examination in chief it is stated that injuries found on body are possible if hands are tightened, it is only a general opinion and cannot confirm that victim’s hands were tied by rope, so as to kill her by hanging; – such postmortem staining is possible when body is travelled long distance; – In present case, body has been transferred for almost 300 kms. and such injuries are possible even during such travel; – Doctor has in paragraph 29 accepted that considering the time of death and second postmortem there is possibility of mistake in considering postmortem staining as bruises and continuance; – In paragraph 33 of his cross – examination doctor has no option but to admit that he cannot say with clarity and confirmed that injuries on death body of the victim was postmortem staining or bruises. In paragraph 38 of his cross examination, the Doctor has again categorically admits that the ligature mark found on the dead body can be possible only during hanging since it is only on upper side whereas in case of strangulation; as alleged and for which complainant wants accused are to be convicted; the ligature mark did not found on upper side but on transverse directions. The dead body of the victim was having ligature marks towards upper side of the injury. In paragraph 39 Doctor has further admits that the ligature marks found on the dead body were suggesting that it is the case of hanging and, therefore, in postmortem note he has given cause of death as hanging asphyxia. – It is an undisputed fact that in postmortem note cause of death is “asphyxia due to hanging”, and there is no reference of strangulation. – Doctor has admitted that there is no presence of poison as per the bicera report and after examination of exhibit 79, a report by first doctor has categorically opined in paragraph 41 that death of the victim was because of hanging. – Doctor has also admitted in paragraph 43 there were no signs of struggle by the victim and, therefore, in absence of signs of struggle he is confirming that this is the case of suicidal hanging.

14.2 Therefore, amongst 28 witnesses this key witness, a Doctor, who has performed postmortem of the dead body of the victim at Bhavanagr at the place where complainant is residing and which is almost 300 kms away from the place of incident now there is no scope to disbelieve the version of such doctor which is discussed herein above and, therefore only because of some answers in para 11 to 13 in his examination in chief against suggestive questions and his opinion cannot be relied upon to convict the accused under Section 302 of the Indian Penal Code as prayed for in revision petition by the complainant.

15. The details of all the evidence recorded by the Sessions Court is very well disclosed in paragraph 5 whereby, there are as many as 28 witnesses and as many as 32 documents produced by the complainant for proving the commission of crime. Though minimum circumstantial evidence is sufficient whereas in present case, the evidence of Dr. Ganesh Pyarelala Govekar who is doctor in confidence of the complainant and at Bhavnagar has categorically deposed on oath that death of the victim was because of suicidal hanging and not strangulation as alleged by the prosecution and complainant, there is no scope of converting the conviction from Section 306 and 498A to 302 of the Indian Penal Code as prayed and alleged by the prosecution and the complainant. Because of such observations and discussion the revision application needs to be dismissed.

16. It is also undisputed fact that first doctor who has performed postmortem at Porbandar i.e. Dr. Vipulbhai N. Modha as PW No.12 at exhibit 64 has in categorically terms confirmed that cause of death is suicidal hanging, in his examination in chief itself. Whereas in his cross examination prosecution has brought several factual details on records which is in conformity of his opinion and, therefore, it is not reproduced. However, it is to be recorded that, in fact, accused have taken care of proving the death as a suicidal hanging by such doctor, because of which Dr. Govekar could not deny several factual details. However, when both the doctors have finally concluded that cause of death is suicidal hanging, there is no option but to held that it is the case of suicide only and not strangulation. Therefore, there is no scope to convert the acquittal into conviction or to modify conviction under Section 306 to conviction under Section 302 of the Indian Penal Code.

17. Rest of the oral as well as documentary evidence are not much material to be discussed herein because it is by Doctor who has performed postmortem at Porbandar namely Dr. Vipul Modha, postmortem note issued by him which confirms that cause of death is asphyxia by hanging and in deposition, such doctor has specifically confirms such opinion that it is a suicidal death. This witness was also cross examined at length wherein he has confirmed all the factual details which were confirmed by Dr. Ganesh Pyarelal Govekar, PW No.13 at exhibit 72 who has performed postmortem at Bhavnagar. The deposition of Forensic expert and investigating officer as well as few other witnesses are not much material except to confirm that investigating officer has admitted the contradiction by the witnesses and rest of the witnesses has narrated the factual details with reference to investigation and inquiry made by them. The investigating officer being PW No.26 at exhibit 120 namely Dhanjibhai has in detail admitted all the contradictions of all the witnesses though he has tried to support his prosecution, which is obvious. The scrutiny of deposition of the Investigating Officer on the contrary makes it clear, he admits several statement by witnesses before him that none of the witness has ever disclosed about ill tratment to the victim by her father in law i.e. appellant No.4 though there was some general story about harassment by all the in laws. However, as disclosed herein above there is little scope of any harassment.

18. Then the only question remains is whether conviction under Section 306 and 498A of the Indian Penal Code can sustain when now it is concluded that cause of death is suicidal hanging and not by strangulation by the accused or somebody else. For the purpose, appellants have referred and relied upon several deposition and documents amongst evidence on record. List of which is as under;

PW/DW EXH. PARTICULARS
NO. NO.
1 16 Jitubhai Premjibhai Bhamaniya (Panch of
inquest panchnama)
17 Inquest Panchnama
2 18 Meraman Lakhabhai Kodiyatar (Panch of
inquest panchnama)

3 19 Mulubhai Hathiabhai Vadodara (Panch of
panchnama of things recovered from the scene of offence.) 20 Panchnama of things recovered from the scene of offence.

4 25 Daxaben Ramniklal Rathod (Panch of inquest
Panchnama)
5 26 Ashok Bahnushankar Thakar ( Panch of seizure
panchanama of ceiling fan)
6 29 Narendra Mansukhdas Agravat (Panch of
seizure panchanam of ceiling fan)
7 30 Manish Damodar Oza (Panch of scene of
offence panchnama)
31 Scene of offence panchanama
8 32 Rajesh Govindbhai Bhamaniya (Panch of scene
of offence panchnama)
9 42 Guvantrai Purshottamdas Acharya
(Complainant/Father of the deceased)
Mark Letter dated 02/12/1997 written by the 42/1 deceased 43 Original FIR/Statement of complainant 49 Marriage invitation card of the deceased and accused No.1 50 Xerox copy of pages of the notebook of the deceased.

61 Letter dated 29/11/1997 written by the
deceased.
10 62 Hansaben Gunvantrai (Mother of the
deceased)
11 63 Swatiben Kishankurma (Sister-in-law of the
deceased)
12 64 Dr. Vipul Nanalal Modha (Doctor who
performed first PM)
65 P.M. Note (Porbandar)
69 Final cause of death
13 72 Dr.Ganesh Pyarelal Govekar (Doctor who
performed second PM)
73 P.M. Note (Bhavnagar)
14 80 Jyotiben Rajendrabhai Nimavat (Elder sister of
the deceased)

15 81 Ketanbhai Vijaybhai Gohel (Known to accused
No.1 Harshadbhai)
16 82 Jitendrabhai Biharibhai Ramavat (Madhav
Travels)
17 84 Jaydevsinh Khengarsinh Chudasama
(Neighbour of complainant)
18 85 Dr. Sanjay Joshi
19 86 Kalyani Maheshbhai Gandhi (Neighbour of
complainant)
20 87 Kaushikabhai Banesinh Makwana (Mobile
Scientific Officer)
93 Registrar of Accident Death
23 104 Prafulbhai Mathudaradas Athara (Deputy
Mamlatdar)
24 114 Jashwantkumar Ramjibhai Mothaliya (Dy.S.P.
Porbandar)
25 118 Dr.Dilipbhai Amrutlal Vyas (Medical Officer,
Porbandar)
26 120 Dhanjibhai Thakarsibhai Vadliya (Police
Inspector, Kamlabaug Police Station,
Porbandar)
27 124 Dr.Bharatkumar Kalidas Ramavat (Relative of
complainant)
143 Queries asked of FSL officer
155 FSL Report
168 Transfer orders of deceased
DW -1 178 Rashmiben Pankajbhai Chaudhari (Tenant of
present appellant)
2 180 Dr.Ranjitbhai Prabhubhai Lakhani
(Gynecologist, Porbandar)
3 182 Dr.Yogeshbhai Mansukhbhai Soni (Accused
No.1 Hardhad working in his hospital)
4 183 Maldebhai Hathiyabhai Odedara (Dairywala)

19. The second major issue needs to be considered and answered is with reference to allegations regarding ill treatment and abatement to commit suicide. So far as abatement to suicide is concerned, a factual details categorically confirms as discussed herein above that, after the marriage, victim has stayed with the appellants initially for 8 months and thereafter she had been to the place of her choice either at the place of her parents or at the place where she was serving as a teacher, independently and separate from her husband and in laws i.e. present appellants. Therefore, there was no case of ill treatment for long period of 6 years during married life of 7 years and two months. However, there is allegation that after the gap of 5 years there was an attempted to settle the dispute between the parties and during such exercise when victim had been to the house of the appellant on two occasions, again there was ill treatment and therefore, she has not stayed together with appellants. Thereafter, incident has taken place almost after a year. For such one year again victim had stayed in Bhavnagar district where she was serving as a teacher and, therefore, at least for last one year from the date of incident there was no cohabitation. Practically, during the marriage life of 7 years 2 months, the cohabitation was only on 4 to 5 occasions amongst which approximately for 8 months immediately after the marriage then after the gap of 5 years on few occasions for couple of days only and after such cohabitation for couple of days again there was a gap of one year when she has committed suicide, when she joined the house of in laws from Junagadh to Porbandar. It is undisputed fact that just before the incident, the victim had been to Junagadh from her residence of Bhavnagar at the residence of her sister, from where she had been to Porbandar. Therefore, in absence of any specific evidence, because of statement of few witnesses regarding ill treatment, there is no evidence to confirm that there was continuous ill treatment which ultimately leads the victim to commit suicide. To that extent charges under Section 498A would not survive. Otherwise also when the trial Court has acquitted accused Nos. 2, 3 and 5 from such charges, there is reason to believe that there is no evidence regarding charges under Section 498A at least against respondent Nos. 2, 3 and 5.

20. So far as accused Nos. 1 and 4 are concerned who are convicted under Section 498A, the provisions of Section 498A needs to be recollected here. The provisions of Section 498A defines the word “cruel”for the charges under Section 498A of the Indian Penal Code;

“498A. Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purposes of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]”
20.1 Therefore, bare reading of such definition of cruelty makes it clear that either it should be likely to drive the woman to commit suicide or to cause grave damage to life or health of the woman or harassment with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

21. The scrutiny of evidence which is referred by both the sides makes it clear that any of such evidence does not speak about harassment, so as to coerce the victim or anybody on her behalf to meet any unlawful demand for any property or valuable security which may be called as a dowry. Therefore, when there is no demand of dowry and when there is no case to that effect by the complainant, the only cause remain is whether there is any act which drives the woman to commit suicide i.e. abatement of suicide which is punishable under Section 306 of the Indian Penal Code, which provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

21.1 Though there may not be any direct evidence to abatement of suicide which would drive any person to commit a suicide, Unfortunately there is serious allegations against respondent No.4 being father in law of the victim by the complainant and other witnesses that victim has conveyed her about attitude and activity of respondent No.4 by saying that he has caught her hand and wanted to take disadvantage of the position. However, available material on record does not confirm that there is sufficient and cogent evidence to believe such story. To prove such allegation, complainant and prosecuting agency are relying upon deposition of the witnesses and some documentary evidence which is summerised and discussed as under;

(1)PW 9 at exhibit 42 – complainant being father of the victim has stated on oath that he has been told by his wife Hansaben that victim has told her that her father in law has spoken her name and caught her hands and put improper demand. However, it is also stated by him that thereafter, she had been to her in laws on 2 to 3 occasions where she stayed for 2 to 3 days and during those period though there is allegations regarding ill treatment, there is no allegation regarding any improper activity by accused No.4. In support of such version, witness has produced on record copy of diary, said to be written by the victim, which is taken on record as exhibit 48.

(a) However, in his cross – examination, he has to admit that though he has stated in his examination in chief that appellants were not ready to keep the victim and they want to get divorce from the victim but he has not disclosed such story in the complaint, but he has stated in his complaint, which is signed by him and proved on record at exhibit 43; that victim wants to stay separately from her in laws with her husband. Though witness has stated that because of such reason i.e. because victim wants to stay separately with her husband there was harassment to her and therefore all the accused have killed her, the contradiction in complaint and deposition certainly results into benefit in favour of the accused to extend benefit of doubt in their favour against conviction because complainant being father of the victim has changed his version drastically from his complaint.

(b) witness has also admitted that whenever victim was coming to Bhavnagar, her father in law was coming with her to drop her at Bhavnagar. Such fact is corroborated by letter of the victim at exhibit 61, which would be discussed herein after, in which also victim has stated that her father in law has taken good care of her, which falsify the allegations against accused No.4 father in law of the victim regarding his improper demand from the victim because if it is so, victim would not travel with him for 300 kms from Porbandar to Bhavnagar on different occasions. The letter at exhibit 61 by the victim confirms such position.

(c) The witness father of the aged daughter does not want to admit that victim has aborted a child in April 1998 and such story was never disclosed by the complainant, therefore appellants were right in submitting that in fact victim was carrier oriented woman and does not want a child and that was the only issue between husband and wife.

(d) the witness has no option but to admit that in diary at exhibit 48, which is produced by him, there is categorical endorsement / writing that victim has got her pregnancy aborted on 11.04.1998 and was taken to the hospital on 25.03.1998 at Porbandar. It is undisputed fact that she had been to Bhavnagar on the next date i.e. 26.03.1998. It is also admitted by the evidence that victim was studied till B.A. B.Ed. and serving in village Ambra in Talaja taluka as Vidhya Sahayak. Witness has also admitted that in diary at exhibit 48 and 50 victim has nowhere endorsed that she had been harassed by the accused either physically or mentally. Victim was staying at Bhavnagar from 5 years and attempt of compromise was started by appellant No.1 by making a phone-call. He also admits that while applying for postmortem report at exhibit 59, he has disclosed that his daughter has died by accident. He also admits that his daughter wants to stay separately from joint family with her husband and that appellant No.1 has purchased a flat also. He also admits that when victim was at Porbandar she has also at liberty and facility of calling them on phone, which suggest that practically there may not be much harassment at Porbandar or at least she has never complained about such harassment to the complainant on phone. It is admitted position that victim has not disclosed anything about accused No.4 directly to the witness and to that extent so far as this witness is concerned those allegations are hearsay. There is detail cross examination of the witnesses to verify his credentials. However, only material portion has been discussed herein.

(2) Prosecution is solely relying upon exhibit 48, a diary alleged to have been written by the victim. However, in such diary there is very vague statement regarding attitude of accused No.4 but there is categorical statement in such diary, which does not have any authenticity that it is written by the victim only, that in fact victim wants to get divorce from the appellant No.1 and probably the dispute is with regard to the properties. The writing regarding allegations against father in law are in altogether different handwriting. If we read allegations, wherein there is no name of appellant No.4 but it seems that when victim has asked for divorce appellant No.1 has categorically stated that he would not get separated from the family and so called allegations is only in the name of old man that old man has taken her name without reference to accused No.4. Such conversation is with reference to Bhavesh and Chetnaben i.e. sister and brother in law of the victim and not with reference to appellant No.4 and complainant and prosecution are identifying Bharat as old man in such writing. However, minute writing makes it clear that probably this writing is not by the victim at all, since there is reference of friend agreement after taking divorce and there is also reference of getting married again after divorce by performing civil marriage and transferring the property and such writing is with reference to mother. Though it is not clarified in such evidence that reference is for whose mother, we have to believe that it is mother of the concerned husband, when there is no such factual details between victim and the appellant No.1 i.e. wife and husband in the present case. The writing of such diary gives an impression that it is probably by some other woman for her dispute or with reference to some other issues and not with reference to any dispute between the victim and appellant No.1. Few more letters by the victim to the appellant no.1 are produced on record which nowhere discloses anything which is alleged by the complainant against appellant. (3) However, letter dated 29.11.1997 at exhibit 61 written by the victim to her in laws is material, writing of such letter on the contrary confirms that victim was in good relation with the in laws including her parents in law and other family members. whereas, last line in this letter is referring appellant No.4 disclosing by the victim that appellant No.4 has taken good care of her when came to drop her from Porbandar to Bhavnagar and she also conveyed her mother in law that her father in law has reached to Ahmedabad safely. (4) However, PW No.10 mother of the victim Hansaben at exhibit 2, PW No.14 Jyotiben Rajendrabhai, sister of the victim at exhibit 8 and PW No.19 Kalyaniben M. Gandhi, neighbour of the complainant at exhibit 86 so also PW No.11 Swatiben Kishankumar, Bhabhi of the victim at exhibit 63 categorically deposed on oath that victim has conveyed her about illegal demand by her father in law i.e. appellant No.4. They also admits about abortion by the victim and her services in Bhavnagar district for more than 5 years. Hansaben also admits that victim was frequently visiting their house at Bhavnagar and every time appellant No.4 i.e. father in law of the victim used to come to Bhavnagar from Porbandar and ever time he used to stay for day or two. This suggest that probably the story of allegations against appellant No.4 is afterthought and there is no substance in such allegation.

(5)PW No.63 Bhabhi of the victim admits that there is material contradiction in her statement before the police and her deposition in as much as it is disclosed by her in her statement before the police that in fact victim wants to stay separately from her in laws only with her husband. (6)PW No.14 sister of the victim has to admit that during initial stay for 8 months at her matrimonial house, victim has got pregnancy but immediately on returning to Bhavnagar she has got her pregnancy aborted.

(7)PW No.19 neighbor of the complainant has though referred the victim for her allegation against appellant No.4, considering the overall circumstances and evidence, such evidence alone cannot be sufficient to prove the allegation which can certainly be termed as a heresay evidence.

22. However, when there is some evidence on record regarding illegal demand by appellant No.4 and probably non support by appellant No.1 in such situation when the trial court has considered such circumstantial evidence against appellant Nos. 1 and 4, even if the conviction of appellant Nos. 1 and 4 is to be confirmed under Section 306 only, in given circumstances their sentence can certainly be looked into when there is a possibility of taking different view then view taken by the Sessions Court.

23. Deposition of PW No.27 at exhibit 124 is of Bharatkumar K. Ramavat who is relative of the complainant. He produced on record two letters addressed to him by appellant No.4 i.e. father in law of the victim, whose name is also coincidentally Bharatbhai. This witness has disclosed altogether a different story that appellants are asking for divorce but victim has denied it. However, during cross examination he has admitted that police has never recorded his statement. Such deposition on the contrary disturb the prosecution story but in any case it does not prove anything against appellants.

24. Whereas in their further statement in writing at exhibit 185 appellants have agreed to allow the victim and appellant No.1 to stay separately but victim was abandoned to start such house without any delay and when considering the financial arrangement, she was requested to wait for couple of days and instead of waiting for couple of days, she has committed suicide which has resulted into such situation.

25. In view of above facts and circumstances, I do not see any reason to confirm the sentence part by impugned judgment even though conviction may be confirmed only with a view to avoid to take different view then the view taken by the learned Sessions Judge, who is having benefit of scrutinizing the oral as well as documentary evidence which is recorded in its presence only by interpreting the same evidence differently when it is so possible.
26. I have also considered written arguments by both the sides wherein certain facts are disclosed with reference to details of particular evidence. However, some evidence has been discussed herein above and therefore there is not reason to either reproduced the written submissions or to disclose such written submissions in verbatim.

27. Then remains only consideration regarding citations in form of previous verdicts, referred and relied upon by both the sides. 25.1 The complainant and prosecution are relying upon following decisions;

(1)The respondent – complainant and prosecution are relying upon the judgment and order dated 06.08.2008 in bail application preferred by the present appellants which is reported in 2008 (3) GLR 2345 between present appellant No.1 vs. State of Gujarat and marked several portion of such judgment, wherein at the relevant time while rejecting the bail application, the division bench has made certain observations and come to the conclusion that serious crime is alleged against accused and when sentence is of 10 years imprisonment, it does not entitle the accused to release on bail by suspending the sentence. However, it cannot be ignored that the division bench has no option but to observe that “at this juncture we are not permitted to appreciate the evidence fully, but to see what is the prima facie case, and as stated above, when there is a prima facie case in favour of the prosecution only because the accused is sentenced to 10 years imprisonment, benefit of Section 389 to suspend the sentence and to enlarge the accused on bail cannot be extended to accused No.1. Therefore, such judgment cannot be relied upon at this stage for two simple reasons i.e. (i) it is an order of bail without scrutinizing and appreciating the evidence fully as admitted in such judgment and when entire evidence is referred read out and scrutinized by this Court and (ii) such order has been practically quashed by an order dated 27.04.2009 by the Honourable Supreme Court when it was challenged in Criminal Appeal No. 853 of 2009 whereby the Honourable Supreme Court has released the accused No.1 on bail considering the peculiar facts of the case so also fact that appellant No.1 was in custody for more than 5 years. (2)Dilavarkhan Hamidkhan Pathan vs. State of Gujarat reported in 2006 (4) Crimes 449. Though conviction of in laws was confirmed in such case, the factual details confirmed that it was altogether a different story when there is specific evidence that even deceased herself has made specific statement to her father on the date of incident itself that she went to particular house where accused were residing and accused was found absconded when police reached at the place of incident, considering the circumstantial evidence, the Court has came to the conclusion that accused has committed a murder of his wife. However, in absence of any evidence only because of confirming in such conviction it would not be appropriate to convict all the accused under Section 302 of the Indian Penal Code.

(3)Trimukh Maroti Kirkan vs. State of Maharashtra reported in 2006 (4) Crimes 212, wherein it was a case of dowry demand and that it is also a case of circumstantial evidence for charging and convicting anybody under Section 302 of the Indian Penal Code. On the contrary when considering circumstantial evidence, the Honourable Supreme Court has dismissed the appeal against acquittal, it cannot be said that in absence of proper evidence, in all such cases, conviction must be under Section 302 of the Indian Penal Code.

(4) Md. Yakub Ali vs. State of Tripura reported in CrLJ 3315, wherein the High Court has confirmed the conviction based upon the specific evidence on record that although the room was closed from inside, the house which is a bamboo hut, had a opening on the wall by which a person can easily come and go out and when there was possibility and when there is evidence that, appellant after strangulating the deceased wife, hanged her to show that it is the case of suicide and escaped by opening the wall and, therefore, though door was closed from inside, because of possibility of entering into the room without opening the door, the Court has confirmed the conviction. However, in absence of any such evidence this judgment would not help the prosecution.

28. As against that appellants are relying upon following citations;

(1)Kantilal Martaji Pandor vs. State of Gujarat & Anr. reported in (2013) 8 SCC 781, wherein the Honourable Supreme Court has considered that whether the statement attributed to the deceased can be used as an evidence including contents of letters. The Honourable Supreme Court has considered that when no other witness has spoken about the complainant by the deceased and cruelty to her, such letter would be relevant under Section 32(1) of the Evidence Act and thereby, such provisions is not relevant under Section 498A of the Indian Penal Code. Thereby, it is reiterated that in order to make statement admissible under law, stated has to cause of her death or as to any of the circumstances of the transactions which resulted in her death. Thereby, even if any evidence is admissible under Section 32(1) of the Evidence Act, it cannot be admitted to prove offence under Section 498! of the Indian Penal Code. The above position is based upon the case of Indarpal Vs. State of Madhya Pradesh reported in 2001 (10) SCC 736 and, therefore, does not discussed in detail though relied upon.

(2)M. Gananath Pattnaik vs. State of Orissa reported in 2002 (2) SCC 619, Wherein the Honourable Supreme Court has held that statement by sister of deceased regarding cruelty is not admissible as an evidence under Section 498A and has to be termed only as a hearsay evidence and such statement cannot be relied upon for final guilt of the accused. Thereby appeal was allowed acquitting the appellant accused before it for the offence under Section 498A of the Indian Penal Code.

(3) Subhashbhai Chandubhai Patel vs. State of Gujarat reported in 2006(3) GLH 724, Wherein the division bench of this Court has relied upon Ganpat (supra) and Inderpal (supra) while allowing the appeal of the convict and dismissing the suo motu revision wherein notice was issued for enhancement of sentence, observing that statement taekn on record under Section 32 of the Evidence Act was not admissible in evidence for offence under Section 498A and has to be termed as being only a hearsay.

(4)Indrasing M. Raol vs. State of Gujarat reported in 1999 (3) GLR 2536, Wherein this High Court has considered the definition of word “harassment” with reference to Section 498A and considering the available record allowed the appeal by acquitting the appellant accused from the offence under Section 498A of the IPC.

(5)State of Gujarat vs. Bharatbhai Balubhai Lad & Ors. reported in 2006 (1) GLH 718, Wherein the division bench of this Court has held that mere allegation of harassment or cruelty without any corroboration showing that soon before the incident there was some harassment or torture to the deceased at the hands of the accused which was abated to commit suicide are not sufficient to constitute the offence under Section 306 of the Indian Penal Code. It is further held that allegations which are general in nature with regard to mental and physical cruelty to the deceased at the hands of the accused is not sufficient to prove the offence under Section 498A and thereby, relying upon Ganpat (supra) and Inderpal (supra) confirm the judgment of acquittal by the Sessions Court.

(6) Sanju @ Sanjay Singh Sengar vs. State of M.P. Reported in (2002) 5 SCC 371, wherein the Honourable Supreme Court has held that suicide cannot be considered proximate to the quarrel even if something is disclosed in suicide note and discarded the suicide note considering the other circumstance while considering abatement of suicide stating that presence of mens rea is the necessary concomitant for instigation. Thereby conviction by both the courts below has been converted into acquittal by the Honourable Supreme Court even when there was suicide note, because the Honourable Supreme Court has held that suicide was not proximate because of quarrel between the parties. Whereas in the present case there is no question of quarrel or other dispute between the parties.

29. I have also gone through the impugned judgment which runs into 300 pages. Therefore, I have avoided the factual details as well as reproduction of all the evidence since it is very well disclosed in such lengthy judgment. However, so far as appreciation of evidence is concerned I do not agree fully with the Sessions Court in convicting and sentencing the appellant Nos. 1 and 4 as per the impugned judgment. Therefore, in given facts and circumstance as discussed herein above, though I do not want to quash or set aside the conviction part of appellant No.1 and 4, there is no reason to confirm the sentence as awarded by the impugned judgment.

30. In view of above facts and circumstances the appeal needs to be partly allowed whereby though conviction of appellant Nos. 1 and 4 is confirmed, their sentence is reduced to the period for which they have already undergone judicial custody pending trial and appeal and thereby they are not to undergo any further imprisonment herein after. I have reason to reduce the sentence considering the discussion herein above which specifically makes it clear that there is possibility of taking different view from the same set of evidence when we appreciate it afresh and in totality with each other as disclosed herein above. Therefore, when different opinion is possible from same set of offense, though benefit of doubt can be extended to the appellant, it would be appropriate to confirm the conviction part only but when different opinion is possible, sentence imposed by the Sessions Court needs to be quashed and set aside by modifying the same as aforesaid.

31. In view of above facts and circumstances, appeals are partly allowed. Bail bond shall stand cancelled. Record and Proceedings be sent back to the trial Court forthwith.

(S.G. SHAH, J) DRASHTI K. SHUKLA

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