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CR.A/842/2008 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 842 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD 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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VIJAYKUMAR
KRASHNALAL PATHAK - Appellant(s)
Versus
THE
STATE OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Appellant(s) : 1 - 2.
MR LR PUJARI, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/10/2011
ORAL
JUDGMENT
This appeal under Sec.374(2) of
the Code of Criminal Procedure has been filed by the
appellants-original accused being aggrieved by the judgment and
order dated 18-1-2008 passed by the learned Additional Sessions
Judge, Dhrangadhara, in Sessions Case No.6 of 2007 whereby both the
accused were convicted and sentenced to suffer RI for a period of
seven years and to pay fine of Rs.2000/-, in default, to suffer
further RI for one year for the offence punishable under Sec.306 of
IPC; RI for a period of three years and to pay fine of Rs.1000/-, in
default, to suffer further RI for six months for the offence
punishable under Sec.498-A read with Sec.114 of IPC and also to
suffer RI for one year and to pay fine of Rs.500/- in default, to
suffer further RI for three months for the offence punishable under
Sec.4 of the Dowry Prohibition Act. All the substantive sentences
were ordered to run concurrently. The accused were given set off
under Sec.428 of Cr.P.C. for the period undergone in jail.
Case in short is that a complaint
was filed by the complainant-Ashokkumar Thakar before Dhrangadhra
Police Station alleging inter alia that his daughter committed
suicide on 19-7-2006 due to ill-treatment and harassment meted out
by the appellants, who are husband and mother-in-law of the victim
respectively. Pursuant to the said complaint, police started
investigation, drew panchnama of scene of incident and at the end
of investigation, filed charge sheet against the appellants-accused
for the offences punishable under Secs.306, 498(A) and 114 of IPC
read with Sec.4 of Dowry Prohibition Act. As the offence was
Sessions Triable case, the learned Magistrate committed the case to
the Court of Sessions. Charge was framed against the accused on
2-6-2007 at Ex.8. The charge was read over and explained to the
accused. The accused denied all the charges and pleaded to be tried.
Hence, the prosecution was asked to prove the guilt against the
accused. To prove the guilt
against the accused, prosecution examined in all 12 witnesses and
has produced and relied upon several documentary evidence such as
complaint Ex.26, injury certificate of appellant No.1 at Exs.38 and
44, AD entry at Ex.47 etc. On submission of closing pursis at Ex.56
by the learned APP, the accused sought to examine four witnesses in
their defense at Exs.63,64,59 and 61. Thereafter, further statements
of the accused under Sec.313 of Code of Criminal Procedure
were recorded in which the accused have denied all the charges.
Thereafter, on affording opportunity of hearing to the learned
advocates appearing for the respective parties, learned Addl.
Sessions Judge delivered the impugned judgment convicting and
sentencing the appellants as aforesaid in the earlier part of this
judgment giving rise to prefer the present appeal.
Heard learned advocate, Mr.Ashish
Dagli for the appellants-original accused and learned APP,
Mr.L.R.Pujari for the respondent-State.
It is argued by learned advocate,
Mr.Ashish Dagli for the original accused that the trial court has
taken a moral view rather than a legal view in the present case.
According to him, the learned Judge has not considered major
contradictions between the evidence of complainant-Ashokkumar Thakar
and other witnesses and the impugned judgment is based on
presumption, surmises and conjectures. It is submitted that the
victim and the appellant No.1 were staying separately in a rental
premises at Adhrangadhra. Taking this Court through the evidence of
Dr.Pragnesh Khedawala, P.W.9 at Ex.59, it is also submitted that the
appellant No.1 was under treatment for which the victim used to take
the appellant No.1 for treatment of Dr.Pragnesh Khedawala. It is
further submitted that the victim did not like to stay in Village as
she spent her childhood days in Rajkot City and, therefore, she
stayed with her parents six months prior to the date of incident and
because of personal feelings, the victim has taken the extreme step.
It is further submitted that the victim disliked and showed
anxiety before five days about the engagement of her brother with
the daughter of Mandakiniben. Therefore, the trial court erred
gravely in coming to a conclusion that the victim committed suicide
due to ill-treatment and harassment at the hands of appellants.
Apart from that, the defense witnesses have categorically stated
that appellant No.1 was under treatment which is supported by
medical papers.
As regards accused No.2, who is
mother of the accused No.1, is concerned, it is submitted by
Mr.Dagli that it has come on record that appellant No.2 was staying
separately with her husband at Sanosara Village which is 52. km away
from the place of incident since last 6-8 months of the incident and
husband of accused No.2 was doing ‘Yajman Vruti’. This aspect has
not been considered by the trial
court and committed error in coming to the conclusion that all the
defense witnesses are got up witnesses and to escape from criminal
liability, a false story was put up by the accused. It is
further submitted that the trial court ought to have independently
examined the evidence as far as the appellant Nos.1 and 2 are
concerned. It is therefore submitted that the charge for the
offences punishable under Secs.498(A) or 306 are not proved against
the accused No.2. As regards the charge under the Dowry Prohibition
Act, it is submitted that there is nothing on record to indicate
that the accused No.2 have ever demanded any dowry either before
marriage or after the marriage. It is also further submitted that
the trial court has failed to appreciate all these aspects and erred
gravely in passing the impugned judgment and order of conviction and
sentence against her. It is therefore urged that the impugned
judgment and order be quashed and set aside qua the appellant No.2
and she may be acquitted of the charges levelled against her.
Mr.Dagli has relied on the following reported decisions:
1)
AIR 2007 SC 2666 in the case of Mehiboobsab Abbasabi Nadaf Vs. State
of Karnataka;
2)
(2007)4 Supreme 674 in the case of Kishori Lal V. State of Madhya
Pradesh;
3)
2007 (2) G.L.H. 78 in the case of Biswajit Halder @ Babu Halder &
Ors. V. State of West Bengal;
4)
2006 Criminal 226 in the case of Harjit Singh Vs. State of Punjab;
5)2006
Criminal 35 in the case of Tirath Kumari @ Raj Rani & Anr. Vs.
State of Haryana;
6)
2004 Criminal 300 in the case of Ashok Vishnu Davare Vs. State of
Maharashtra;
7)
2002 Criminal 700 in the case of Girdhar Shankar Tawade Vs. State of
Maharashtra;
8)
2002 Criminal 440 in the case of Gananath Pattnaik Vs. State of
Orissa;
9)
2002 Criminal 207 in the case of Sunil Bajaj Vs. State of M.P.;
10)
2001(0) GLHEL SC 23593 in the case of Ramesh Kumar Vs. State of
Chattisgarh;
11)
1998 Criminal 567 in the case of Prem Singh Etc. Vs. State of
Haryana;
12)
AIR 1998 SC 774 in the case of Meka Ramaswamy Vs. Dasari Mohan &
Ors;
13)
AIR 1997 SC 1873 in the case of Sham Lal Vs. State of Haryana with
Bhagwan Das V. Sham Lal and Others; and
14)
AIR 1984 SC 1622 in the case of Sharad Birdhichan Sarda Vs. State of
Maharashtra.
At the end of arguments, as
regards appellant No.1-original accused No.1 is concerned, Mr.Dagli
has pressed this appeal only qua quantum of sentence. He has
submitted that entire evidence on record go to show that it was
within the knowledge of father, mother and brother of the deceased
that before marriage, financial condition of accused No.1 was not
good and only looking to his educational background, marriage of
Bhavika was solemnized with accused No.1 after six months of
engagement. Therefore, it was within the knowledge of Bhavika that
she has to stay with accused No.1 at Village Dhrangadhra and hence,
according to him, it is to be presumed that she was aware of the
limitations of the Village. It is also submitted that immediately
after the occurrence of incident, deceased was removed to the
hospital by the accused No.1 and he tried to rescue the deceased in
which, he also received burn injuries and had to be remained in
hospital for 21 days. It is also submitted that the accused remained
in jail for more than four and half years and his jail conduct was
good. In view of the above, it is requested that sentence may be
reduced.
Learned APP, Mr.L.R.Pujari, on the
other hand, submitted that there is ample evidence on record
connecting the appellants with the charges framed. It is further
submitted that after appreciating the entire evidence on record,
the trial court has rightly came to the conclusion that both the
accused have committed the offence and the appellants were
convicted and sentenced. Since the said findings are just and
proper, it is submitted that they are not required to be interfered
with. He has placed the jail record of the accused No.1 on record.
This Court has gone through the
record pertaining to the case as also the submission made on behalf
of the parties together with the impugned judgment and order of
conviction and sentence passed by the trial court.
The main witness, the complainant,
Ashok Umiyashankar Thakar, P.W.No.2, who has been examined at Ex.25,
has deposed in his examination-in-chief that even after the
compromise with the appellant No.1, when his daughter was sent to
matrimonial home before six months, the harassment by her husband
continued on account of Kariavar and also on account of not
conceiving a child. In his cross-examination, he has admitted that
at the time of incident, his daughter and his son-in-law were
staying in rented premises at Dhrangadhra. It is also admitted by
him that since her birth, she enjoyed good economical condition and
as appellant No.1 was educated, marriage of his daughter was
solemnized with him. He has also admitted that in 2005, treatment of
his daughter and son-in-law was going on. It is denied that he had
not stated before the Police that mother-in-law also tortured for
demand of kariavar.
Brother of the victim, P.W.No.3,
Kamalbhai Ashokbhai Thakar, who has been examined at Ex.27 has
deposed that during last six months of the incident, on 7-8
occasions, phone calls were received from his sister complaining
about the harassment from her husband and mother-in-law for less
kariavar and not being able to conceive. However, in his
cross-examination, he has admitted that he has not stated before the
police about the ill-treatment of his sister due to depression on
account of death of his sister.
Mother of the victim, P.W.No.4,
Chandben, wife of Ashokbhai who was examined at Ex.29, has deposed
that though assurance was made by husband and mother-in-law of her
daughter, her daughter used to state about the continued harassment
from husband and mother-in-law. She has admitted in her
cross-examination that her daughter was sent to her matrimonial home
at her free will. She has also admitted that she has not stated in
police statement that her daughter has not committed suicide and was
set ablaze. She has also admitted that after treatment of her
daughter at Rajkot, she carried five months of pregnancy.
The
Investigating Officer, PSI, Mr.Mansukhbhai Bhaganji, P.W.No.7 who
has been examined at Ex.35 has deposed that statements of witnesses
recorded in Sanosara Village show that six months prior to the date
of incident, appellant No.2 resides at Village Sanosara with her
husband and on the date of incident, she came with her husband on
hearing about the news of incident. He has also deposed that he
noticed during investigation that appellant No.1 had also received
burn injuries while trying to save the victim. He has also deposed
that presence of appellant No.2 with appellant No.1 in last six
months was found from the papers of statement recorded by ASI,
Mr.Vikramsinh, but he did not make any investigation nor recorded
any further statement. He has also deposed that on the date of
incident or 3-4 days prior to the date of incident, no dispute or
altercation between the husband wife was found during the course of
investigation. He has also deposed that during the course of
investigation, it was found that except kariavar, nothing was given
as Dahej during the marriage life and as per application Ex.44,
kariavar was given back. He has also deposed that soon before the
incident and after she was taken from matrimonial home, no
altercation was found in his investigation. He has also deposed that
as no ill-treatment of the deceased by the accused was found from
the statements of neighbours, they were not cited as witnesses.
Dr.Pragnesh
J.Khedawala from whom treatment was taken by the victim was examined
as a defense witness No.1. He has deposed that Vijay Krushnalal and
the victim used to come to him for treatment and Vijay Krushnalal
was treated by him.
Another
witness examined by the defense is Mr.Sharadbhai Nanalal Thakkar,
D.W.No.2 at Ex.61. He has deposed that articles were delivered to
the parents of the deceased in his presence.
It is required
to be noted that the accused No.1-husband of the deceased has stated
in his further statement recorded under Sec.313 Cr.P.C. that the
fact of his financial condition not being good before the marriage
was within the knowledge of father and mother of the deceased and
Bhavika was got married with him by her parents only considering
his educational background. He has also stated that due to his poor
economic condition, he was unable to fulfill most of the
requirements of the deceased and, therefore, the deceased might have
committed suicide. He has also stated that his sperm cell was not
sufficient for the deceased to conceive. He has also stated that as
engagement of brother of the deceased was fixed with the daughter of
one Mandakiniben against the will of deceased, after four days of
the engagement, she committed suicide. It is also stated that
accused No.2, his mother, was not residing with him and was residing
at Sanosara Village with his father when the incident took place.
The accused
No.2 has also stated in her further statement that at the time of
incident, she was residing with her husband at Village Sanosara and
the deceased was feeling unhappy as the deceased was unable to
conceive because of defect of her son and as financial condition of
her son was not good, the deceased committed suicide.
The accused
have examined four witnesses namely, Dr.Pragnesh J.Khedawala as
D.W.No.9 at Ex.59, who gave treatment to accused No.1 and Bhavika as
Bhavika was not able to conceive; Sharadbhai Nanalal Thakar as
D.W.No.2 at Ex.61; D.W.No.3 Ladkuben Dhankubhai at Ex.63 and
Panchabhai Nagjibhai as D.W.No.4 at Ex.64.
As per the
evidence of Dr.Pragnesh, the accused No.1 and Bhavika came to his
hospital for medical examination and after investigation, it was
found that accused No.2 was not producing sufficient count of sperm
and, therefore, Bhavika was unable to conceive and curatin was
also carried out on Bhavika. He has also deposed that accused No.1
came for treatment in 2005 and 2006 and lastly on 12-7-2006 with
Bhavika. He has also deposed that even after treatment, the accused
No.1 could not produce sufficient count of sperm and that was the
only reason disabling Bhavika from conceiving.
Sharadbhai
Nanalal Thakar, D.W.No.2, has deposed that he was serving in
Nagarpalika and is rendering service in his community. As per his
evidence, he has also attended funeral ceremony of Bhavika and on
23-7-2006, father, mother and other relatives of Bhavika were called
at the house of Vijaybhai when police was also present and in
presence of meadiator, a writing was prepared and signatures were
also obtained of the persons present there and after preparing list
of articles of kariavar, articles were handed over to the
complainant. He identified his signature in the said writing and
stated that the complainant, father of the deceased and
P.W.2-brother of the deceased also signed the said document.
D.W.No.3
Ladkuben Dhankubhai has deposed that she is residing at Sanosara
Village with her husband. As per her evidence, father of accused
No.1-Krishnalal Pathak along with his wife, accused No.2- Kanchanben
was residing at Sanosara as their neighbour. She has deposed that
when Vijay telephoned at her house, she called Kanchanben to attend
the phone and Kanchanben talked with the deceased on the day of
incident. As per her evidence, husband of accused No.2 Krishnalal
Pathak was doing ‘Yajman Vruti’ (religious vidhis performed by
Brahmins).
Panchabhai
Nagjibhai, D.W.No.4 has deposed that he is residing at Sanosara. As
per his evidence, accused No.2 along with her husband Krishnalal
Pathak is residing in his house as a tenant at a monthly rent of
Rs.100/- As per his evidence, before 6-7 months of the incident,
accused No.2 was residing at Sanosara with her husband-Krishnalal
Pathak, who was doing ‘Yajman Vruti’ and police recorded his
statement.
It has come
out from the evidence of aforesaid witnesses that father of accused
No.1 and husband of accused No.2 was doing ‘Yajman Vruti’ by staying
at Village Sanosara. It has also come out from the evidence of
Investigating Officer during the course of investigation that
accused No.2 was residing at Sanosara Village since last 6-8 months
of the date of incident. In the said circumstances, when husband of
the accused No.2 was residing at Sanosara, then naturally accused
No.2, who is his wife, would also be staying with him. Merely
because defense witnesses 3 and 4 were examined by the accused,
their evidence could not thrown out straightaway by labelling them
as got up witnesses especially when their evidence inspire
confidence in the mind of the Court. It is in the evidence of
D.W.No.3, Ladkuben Dhankubhai, that she is residing at Sanosara and
is a neighbour of accused No.2. Nothing has come out from the
cross-examination of this witness to suggest that she is a got up
witness or is she giving false evidence. D.W.No.4, Panchabhai
Nagjibhai, who is also residing at Sanosara, has stated that
Krishnalal Pathak, father of accused No.1, is residing with the
accused No.2 in his house as a tenant at a monthly rent of Rs.100/-
Nothing has come out from the cross-examination of this witness
which would falsify his evidence.
Considering
the entire evidence on record including the evidence of prosecution
witnesses, I.O. as well as defense witnesses, in the opinion of
this Court, prosecution has failed to prove that the accused No.2
was residing with accused No.1 and Bhavika at Dhrangadhra when the
incident in question took place. When a doubt has been created in
the mind of the court about the stay of accused No.2 with the
accused No.1 and Bhavika at Dhrangadhra, question does not arise to
attribute any role on the accused No.2 as alleged by the
prosecution. Thus, this Court is of the opinion that the prosecution
has failed to prove any charge against the accused No.2. The Trial
court has not discussed the evidence of Investigating Officer and as
discussed above, without discussing the evidence on record,
straightaway rejected the evidence adduced by the defense witnesses
which otherwise inspires confidence. In view of the above, the
trial court has committed an error in convicting the accused No.2
and, therefore, the impugned judgment and order of conviction and
sentence qua the accused No.2 requires to be quashed and set aside
and she is required to be acquitted of all the charges levelled
against her.
As
far as accused No.1 is concerned, learned advocate, Mr.Dagli has
restricted his arguments on the point of quantum of sentence. Hence
I would not like
to reproduce or discuss the entire evidence which are on record as
the same remained unchallenged. This Court is also in complete
agreement with the reasons adopted and the conclusions arrived at by
the learned trial court in the impugned judgment so far as the
conviction of the appellant No.1 is concerned. However, the
question to be considered is as to whether the appellant No.1 in the
given facts and circumstances of the case is entitled to reduction
of sentence which has been awarded by the trial court or not.
In this connection, reference will
have to be made to the decisions rendered in (1) Nasir v. State of
Uttar Pradesh reported in AIR 2010 SUPREME COURT 1926, the Hon’ble
Apex Court, in an offence under Secs.399 and 402 of IPC, considering
the fact that the incident is of 29 years old, reduced the sentenced
from five years to the period of six months already undergone; (2)
AIR 2009 SUPREME COURT 675 in the case of Ishwar Singh v. State of
Madhya Pradesh, the Hon’ble Apex Court in an offence under Sec.307
of IPC reduced the sentence to the period already undergone in view
of compromise and being the first offence; (3)Ghasita Sahu v. State
of Madhya Pradesh reported in AIR (Criminal) 277, wherein the Apex
Court, considering the poor background of the accused reduced the
sentence from 5 years to one already undergone(about 4 years as
noticed by the Apex Court) and also reduced the fine from
Rs.20,000/- to Rs.10,000/- and imposed the default sentence of six
months and (4) Shanti Lal v. State of M.P. reported in 2007(2) EFR
702, wherein in para 36 the Apex Court has observed that the accused
appellant is very poor person and it was his first offence and
considering that fact reduced the sentence, and (5) Balwinder Singh
vs. Asstt. Commissioner, Customs and Central Excise reported in
2005(2) EFR 420 = AIR 2005 SC 2917) wherein considering the fact
that the accused was a first time offender, sentence of 14 years of
imprisonment imposed by the Courts below was reduced to minimum
prescribed under the Act that of 10 years.
Reference is also required to be
made on the decisions of the Hon’ble Apex Court in the cases of
Jetha Ram v. State of Rajasthan reported in (2006) 9 SCC 255,
Murugesan and Ors. v. Ganapathy Velar, reported in (2001) 10 SCC 504
and Ishwarlal v. State of M.P., reported in JT 1988 (3) SC 366 (1)
wherein while taking into account the fact of compromise between the
parties, reduced sentence to the one already undergone.
It is to be
noted that as per the jail record, behaviour of the accused No.1 is
good. This is the first offence committed by him. He has no criminal
antecedence. Considering the evidence on record and considering the
facts that deceased Bhavika was removed by the accused No.1 to the
hospital to save her life and in this incident, accused No.1 has
also received burn injuries and remained in hospital for 21 days and
also considering the fact that the accused No.1 remained in jail
more than four and half years in jail, taking into consideration
his jail conduct, if sentence of the accused No.1 is reduced to the
period he has already undergone in jail, ends of justice would be
met.
Thus, this
appeal is allowed in part. The impugned judgment and order dated
18-1-2008 passed by the learned Additional Sessions Judge,
Dhrangadhara, in Sessions Case No.6 of 2007 is quashed and set aside
qua the appellant No.2-original accused No.2. The appellant
No.2-accused No.2-Kanchanben Pathak is therefore acquitted of all
the charges levelled against her. However, as far as the appellant
No.1-original accused No.1 is concerned, while confirming his
conviction, the sentence imposed on the appellant No.1 is
reduced to the period he has already undergone. Both the accused
are on bail and hence, their bail bonds shall stand cancelled. The
impugned judgment and order dated 18-1-2008 passed by the learned
Additional Sessions Judge, Dhrangadhara, in Sessions Case No.6 of
2007 stands modified to the aforesaid extent.
Office shall
send back the records and proceedings to the trial court forthwith.
[M.D.SHAH,J.]
radhan
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