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CR.A/963/2007 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 963 of 2007
With
CRIMINAL
REVISION APPLICATION No. 569 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RAKESHKUMAR
@ PATHUBHAI AMARSINGH PARMAR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
TEJAS M BAROT for Appellant(s) : 1,
MRS. MANISHA LUVKUMAR SHAH APP
for Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/08/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1.0 Criminal
Appeal and Criminal Revision Application arise out of a judgement and
order rendered by learned Additional Sessions Judge, 5th
Fast Track Court, Anand (hereinafter referred to as the learned
trial Judge ) on 05.07.2007 in Session Case No. 69 of 2006 (Old
Sessions Case No. 188 of 2002). The learned trial Judge recorded the
conviction of original accused No. 1- Rakeshkumar @ Pathubhai
Amarsinh Parmar for the commission of offence punishable under
Sections 498-A, 306, 114 of the Indian Penal Code (for short IPC )
and Sections 3 and 4 of the Dowry Prohibition Act. The original
accused No. 1 was awarded sentence of simple imprisonment for two
years with fine of Rs. 1000/- in default of payment of fine, simple
imprisonment for one month for the offence punishable under Section
498-A of IPC, sentence of simple imprisonment for five years with
fine of Rs. 2000/- in default of payment of fine, simple imprisonment
for three months for the offence punishable under Section 306 of the
IPC, sentence of simple imprisonment for six months with fine of Rs.
2000/- in default of payment of fine, simple imprisonment for fifteen
day for the offence punishable under Sections 3 and 4 of the Dowry
Prohibition Act.
1.1 Original
accused Nos. 2 to 4 were acquitted from the charges levelled against
them for the offence punishable under Sections 498-S, 306, 114 of the
IPC and Sections 3 and 4 of the Dowry Prohibition Act.
2.0 The
original accused No. 1 Rakeshkumar @ Pathubhai Amarsingh Parmar
challeged his conviction by preferring Criminal Appeal No. 963 of
2007. At the time of admitting this appeal, this Court by order dated
17.07.2007 has ordered to issue Suo Motu notice as to why the
substantive sentence imposed by the learned trial Judge should not be
enhanced under the provisions of Section 357 of the Code of Criminal
Procedure under Section 377 of Code of Criminal Procedure and
directed that this may be treated as Revision Application which came
to be registered as Criminal Revision Application No. 569 of 2007.
3.0 The
facts of the case emerging from the record are as under:
3.1 The
marriage of deceased Bismilla was solemnized with original accused
No. 1 three years back as per the customs of the caste. The deceased
was residing in joint family at village Kherad. During the short span
of marriage the accused used to demand dowry and Bismilla was meted
out with physical and mental cruelty. Prior to eight months from the
date of incident the deceased and original accused No. 1 came to the
parental home of the deceased. The original accused No. 1 demanded
Rs. 30,000/- for construction of house. At that time the widow mother
of the deceased was unable to give money. Therefore by mortgaging
four golden chains weighing 4 Tolas she gave the money. The appellant
again demanded Rs. 1,00,000/- for purchasing jeep, which could not be
arranged at that point of time. The sister of deceased who had stayed
with the deceased for some time told that the appellant and in-laws
of the deceased harassed the deceased mentally and physically. The
deceased had come to her parental home and she told her sister that
if the demands were not fulfilled, it would be difficult for her to
live. On 15.03.2006 it was telephonically informed that the deceased
got burn injuries and during treatment she passed away. Therefore,
complaint was lodged before Khambolad Police Station against the
accused for the offence punishable Sections 498-A, 306, 114 of the
IPC and Sections 3 and 4 of the Dowry Prohibition Act. The same was
registered as I- C.R. No. 74 of 2004.
3.2 Necessary
investigation was carried out and statements of witnesses were
recorded. Ultimately, chargesheet was filed against the accused
before the court of learned JMFC, Anand.
3.3 Thereafter,
as the case was exclusively triable by the Sessions Court, the same
was committed to the Court of learned Additional Sessions Judge, 5th
Fast Track Court, Anand under Section 209 of Cr.P.C. The case was
numbered as Sessions Case No. 69 of 2006. The trial was initiated
against the accused.
3.4 To
prove the guilt against the accused the prosecution has examined the
following witnesses:
[1] Dr.
Hemangbhai Rameshchandra Shah-Exh.13
[2] Manubhai
Balwantsinh-Exh. 20
[3] Sikandarkhan
Rafikahemad Pathan-Exh. 21
[4] Hanifaben
Rasidkhan Pathan-Exh. 23
[5] Nizumddin
Rafikahemad Pathan-Exh. 24
[6] Thakorbhai
Ambalal Thakkar-Exh. 25
[7] Anwarkhan
Rafikkhan Pathan-Exh. 26
[8] Mansing
Himmatsinh Raval-Exh. 27
[9] Arifali
Kasamali Saiyed-Exh. 30
[10] Natvatsinh
Bhupatsinh-Exh. 33
[11] Vabang
Jamir-Exh. 35
[12] Abhesinh
Lalubha Vaghela-Exh. 36
[13] Bhalchandra
Baburav Kadve-Exh. 42
3.5 In
order to support the case, the prosecution has produced the following
documents:
[1] Original
complaint-Exh. 22
[2] Panchnama
of scene of offence-Exh. 29
[3] Inquest
panchnama-Exh. 31
[4] Post
mortem report-Exh. 15
[5] Cause
of death certificate-Exh. 16
[6] Yadi
written to Medical Officer-Exh. 14
[7] Slip
signed by panchas-Exh. 14
[8] A
copy of Station Diary-Exh. 34
[9] Receipt
of F.S.L-Exh. 54
[10] A
letter of F.S.L-Exh. 54
[11] F.S.L
Report -Exh. 56
3.6 At
the end of trial, after recording the statement of the accused under
section 313 of Cr.P.C., and hearing arguments on behalf of
prosecution and the defence, the learned Sessions Judge acquitted
original accused Nos. 2 to 4 of all the charges leveled against them
and convicted the original accused No. 1 –
Rakeshkumar @ Pathubhai Amarsinh Parmar for the commission of offence
punishable under Sections 498-A, 306, 114 of the Indian Penal Code
(for short IPC ) and Sections 3 and 4 of the Dowry Prohibition
Act. The original accused No. 1 was awarded sentence of simple
imprisonment for two years with fine of Rs. 1000/- in default of
payment of fine, simple imprisonment for one month for the offence
punishable under Section 498-A of IPC, sentence of simple
imprisonment for five years with fine of Rs. 2000/- in default of
payment of fine, simple imprisonment for three months for the offence
punishable under Section 306 of the IPC, sentence of simple
imprisonment for six months with fine of Rs. 2000/- in default of
payment of fine, simple imprisonment for fifteen day for the offence
punishable under Sections 3 and 4 of the Dowry Prohibition Act.
3.7 Being
aggrieved by and dissatisfied with the aforesaid judgement and order
passed by the Sessions Court the appellant has preferred the present
appeal.
4.0 In
connection with Criminal Appeal No. 963 of 2007 Mr. T.M. Barot,
learned advocate for the appellant-convict has taken us through the
evidence of the complainant P.W. 3 Sikandarkhan Rafikahemad Pathan,
P.W. 4 Hanifaben Rasidkhan Pathan at Exh. 23, P.W. 2 Manubhai
Balwantsinh at Exh. 20 who has reached immediately at the scene of
offence. He has also taken us through the medical evidence and
evidence of P.W. 5 Nizamuddin Rafikmahammad Pathan at Exh. 24 and
P.W. 6 Thakorbhai Ambalal Thakkar at Exh. 25 and submitted that the
even if the evidence of all the witnesses is taken there is no
offence under Section 306 of IPC. He submitted that all the witnesses
have given statements regarding demand. Therefore, Section 306 would
not be applicable. He submitted that as per the independent witness
who is neighbourer, the incident was accidental. P.W. 2 Manubhai
Balwantsinh who was examined at Exh. 20 reached immediately at the
place of incident. This witness deposed that victim had burnt because
of the lamp and no one is responsible for the death. . He has also
made endevour that there are inconsistent in the deposition of the
each witnesses. There are different versions of the witnesses
regarding the demand made by the appellant. Therefore, prosecution
has not proved demand. He has also submitted that no offence is made
out under Section 306 of IPC. There is no instigation or provocation
to the victim. Therefore, the sentence awarded by the trial Court is
required to be quashed and set aside.
5.0 Mrs.
Manisha Luvkumar Shah, learned APP appearing for the State has taken
us through the judgment and order as well as evidence. She has
supported the judgment and order and submitted that in view of
observation made by the trial Court in paras 36 to 43 where the trial
Court has discussed the evidence contained therein and prosecution
has successfully proved the offence under Sections 306 and 498-A of
the IPC and notice issued by this Court for converting conviction
under Section 304B where minimum sentence is seven years. Therefore,
from five years it should be increased to seven years. She has also
submitted that since the dowry is proved under Sections 3 and 4 of
the Dowry Prohibition Act, the trial Court has rightly convicted the
accused under Section 498-A and this is a case of suicide. Therefore,
in view of the demand made by the accused No. 1 the victim daughter
of widow mother has no other option but to commit suicide in the
interest of family and unmarried sister. She had submitted that the
view taken by the trial Court is just and proper. Keeping in mind the
evidence of complainant P.W. 3 Sikandarkhan Rafikahmad Pathan who is
uncle of the deceased and evidence of P.W. 5 Nizamuddin
Rafikmahammad at Exh. 24 the view taken by the trial Court is just
and proper. She has also taken us through the panchnama and so called
lamp as stated by P.W. 2 Manubhai Balwantsih. The lamp was not found
from the scene of offence and she has also taken us through the FSL
report at Exh. 56 where she clearly stated that kerosene was found
and this is clear case of committing suicide. Therefore, sentence
awarded atleast should be converted into rigorous imprisonment.
6.0 We
have heard learned advocates for both the parties. We
have considered the record and proceedings of the trial Court in the
context of the submissions made by the rival sides.
6.1 Considering
the evidence of witnesses, more particularly the complainant
Sikandarkhan Rafikahemad Pathan(P.W.3), Hanifaben Rasidkhan
Pathan(P.W.4), Nizamuddin Rafikmahammad Pathan(P.W.5), Thakorbhai
Ambalal Thakkar (P.W. 6), it is clearly established that the
appellant has demanded from time to time and for that purpose the
golden chains were given to the present appellant. Apart from that
after that incident demand has also increased for the vehicle and
also that appellant was entitled from the subsidiary from the
in-laws. Looking to the family circumstances the victim has no other
option but to take this step under the constant pressure from the
appellant of unreasonable demand from the in-laws.
6.2 We
have minutely considered the evidence of P.W. 7 Anwarkhan Rafikkhan
Pathan at Exh. 26 who has clearly stated that appellant himself has
taken four golden chains which clearly support the version of the
prosecution. In that view of the matter keeping in mind the overall
version of the family of the victim and conduct of the present
appellant, it clearly established that the offence under Section
498-A and dowry the victim has no other option but to commit suicide.
The span of marriage is less than seven years. Therefore, presumption
under Section 113 is also against the present appellant. The present
appellant has miserably failed to remove that presumption.
6.3 In
that view of the matter keeping in mind the discussion and conclusion
reached by the Sessions Court is just and proper. Therefore,
Revision Application is allowed to the aforesaid extent. The story
of the prosecution and defence regarding lamp and accidental death is
not believable inasmuch as the same was not found from the scene of
offence on the contrary we accept that it will invite under Section
102 they have destroyed the evidence. Therefore, appeal of the
appellant convict is required to be dismissed and revision
application is required to be partly allowed. However, we are of the
view that interest of justice would be met by converting the simple
imprisonment into rigorous imprisonment.
7.0 Criminal
Appeal No. 963 of 2007 preferred by the appellant-convict (original
accused No. 1) against the judgment and order of conviction and
sentence dated 05.07.2007 passed by the learned Additional Sessions
Judge, 5th Fast Track Court, Anand in Sessions Case No. 69
of 2006 is dismissed.
8.0 Criminal
Revision Application No. 569 of 2007 (Suo Motu Proceedings) for
enhancement of the substantive sentence is partly allowed. Conviction
under Section 306 and sentence to undergo simple imprisonment for
five years and imposition of fine of Rs. 2000/-, in default to
undergo further simple imprisonment for three months is converted
into sentence of rigorous imprisonment for five years with fine of
Rs. 2000/-, in default, to undergo further rigorous imprisonment for
three months. The rest of the order shall remain the same. The
accused shall be given set off of the period of sentence already
undergone and the sentences are ordered to be run concurrently.
9.0 It
is made clear that the amount of Rs. 5000/- to be paid to P.W. 4
Hanifaben Rasidkhan Pathan.
(K.S.JHAVERI,
J.)
(Z.K.SAIYED,
J.)
niru*
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