DHARMESH KIRANKUMAR ACHARYA vs STATE OF GUJARAT

Present appeal has been preferred by the appellant - original accused No. 1 being aggrieved and dissatisfied with the judgment and order

dated 12/02/2014 passed by the learned Additional Sessions Judge, Court No. 11, City Sessions Court, Ahmedabad in Sessions Case No. 324 of 2012. It is pertinent to note that initially a complaint was lodged against the present appellant only, however, since after investigation, the father and the mother of the present appellant also found to be involved in the crime, a separate charge-sheet came to be filed against them, which was registered as Sessions Case No. 379 of 2012. For the same offence since two separate charge-sheets had been filed and two sessions cases had been registered, the learned trial Judge consolidated both the cases and tried and decided the same by the impugned common judgment and order.

1.1 By the impugned judgment and order, while acquitting the original accused Nos. 2 and 3 by giving benefit of doubt, the present appellant - original accused No. 1 held to be guilty for the offences punishable under Sections 498-A, 306 r/w. 114 of the Indian Penal Code, 1860 (for brevity, ''the IPC '') and for the offence punishable under Section 498-A r/w. Section 114 of the IPC, he is ordered to suffer rigorous imprisonment (RI) for three years and a fine of Rs.3,000/- and in default of payment of fine, to undergo further RI for six months and for the offence punishable under Section 306 r/w. Section 114 of the IPC, to suffer RI for seven years and a fine of Rs.3,000 and in default of payment of fine, to undergo further RI for one year. The sentences were ordered to run concurrently. The appellant - accused is on bail by virtue of order dated 31/03/2014 passed in Criminal Misc. Application No. 3736 of 2016 pending the present appeal.

The facts of the case are such that deceased daughter of complainant Jagjivandas Raviramdas Dudhrejiya, resident of Vitthalgarh, Dist.: Surendranagar, had been solemnized with the present appellant prior to about four years of the incident in question. That, during the matrimony, as and when the deceased proposed to visit her parental home, the appellant - accused used to prevent her from visiting her parental home and used to cause physical and mental torture and thereby, used to cause cruelty upon the deceased daughter of the complainant. The deceased also conveyed the complainant about such ill-treatment and cruelty being accorded to her by the appellant and requested the complainant to persuade the appellant. The appellant - accused also used to doubt the deceased on trifle matters and used to harass her. That on 15/10/2011 at about 9:00 a.m., the deceased telephoned the complainant and conveyed that the appellant had given threat to kill the complainant and quarrelled with her and hence, asked the complainant not to come to Ahmedabad. On that day, between 9:30 a.m. and 10:20 a.m., according to the complainant, the deceased had telephoned the complainant for about five times requesting to persuade the appellant not to harass the deceased and hence, the complainant telephoned the father of the appellant and requested him to persuade the appellant not harass the deceased. He also stated that he would be visiting Ahmedabad within two days. That, thereafter, at about 1:00 p.m. the father of the appellant conveyed the complainant on phone that deceased had committed suicide by hanging. Accordingly, a complaint came to lodged against the present appellant for the offences punishable under Sections 498-A, 306 r/w. 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, 1961, which was registered as Sessions Case No. 324 of 2012. During

investigation, since prima facie, case was also found against the father and the mother of the present appellant, a separate charge-sheet came to be filed against them, which was registered as Sessions Case No. 379 of 2012.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheets were filed and as the case was triable by the Court of Sessions, it was committed to the City Sessions Court, Ahmedabad.

2.2 The trial Court framed the charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence.

2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 09 witnesses and also produced several documentary evidence. At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, ''the Code'') were recorded, in which, the accused denied the evidence forthcoming on the record and stated that a false case has been registered against the accused. Thus, after recording above- referred Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge has come to the aforesaid conclusion by the impugned judgment and order.

Heard Mr. Rahul R. Dholakia, the learned advocate for the appellant - accused and Ms. M. H. Bhatt, the learned Additional Public

Prosecutor, for the respondent - State.

3.1 At the outset, Mr. Dholakia, the learned advocate for the appellant - accused, submitted that the present appellant has already undergone imprisonment of 02 years, 05 months and 03 days as on 28/03/2014 and as such has undergone the maximum period of sentence out of total 03 years for the offence punishable under Section 498-A of the IPC that has been awarded by the learned trial Court. Accordingly, he has restricted his submissions qua the offence punishable under Section 306 r/w. 114 of the IPC for which, he is sentenced to undergo RI for 07 years with fine.

3.2 The learned advocate for the appellant - accused, with all vehemence at his command, submitted that the impugned judgment and order is contrary to the facts and evidence on record. It is submitted that the learned Court below has not properly appreciated the material piece of evidence on record and thereby, has erred in convicting the present appellant for such an offence. He submitted that in no case, the ingredients of the offence punishable under Section 306 of the IPC are satisfied so as to implicate the present appellant under the said offence. He submitted that the present appellant has been acquitted by the trial Court for the offence under the Dowry Prohibition Act and under the circumstances, the learned trial Judge has committed a grave error in convicting the present appellant for the offence punishable under Section 306 of the IPC.

3.3 The learned advocate, by taking this Court through the depositions of the prosecution witnesses more particularly, the PW-1 Jagjivandas

Raviramdas Dudhrejiya, the complainant, Ex. 14, Harpalsinh Dharmendrasinh Rahevar, Ex. 22, Raviramji Arjandasji Dudhrejiya, Ex. 26, Balvantkumar Dayaram Sadhu, Ex. 29, Sadhu Khimdas Raviramji Dudhrejiya, Ex. 30 and Manaji Kachraji Shahe, Ex. 37 submitted that nothing has come out from the depositions of the prosecution witnesses so as to arraign the present appellant for the offence punishable under Section 306 of the IPC. He submitted that for establishing the guilt for the offence under Section 306 of the IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that she committed suicide. He submitted that if for the sake of the arguments the facts of the case on hand are believed to be true, then also, no ingredients of the offence under Section 306 of the IPC have been satisfied for the reason that as per the case of the prosecution, the deceased had a grievance that she was prevented by the appellant from visiting her parental home, which led quarrels between the appellant and the deceased and eventually, the deceased committed suicide. The learned advocate submitted that preventing of deceased to visit her parental home cannot be termed as instigating the deceased or intentionally aiding her in committing the suicide. He submitted that the learned trial Judge has failed to appreciate this aspect in proper perspective and thereby, has committed an error of law and fact and hence, the impugned judgment and order of conviction and sentence is not tenable under the law. In support, the learned advocate for the has referred and relied upon following decisions:

i) Ramesh Kumar Vs. State of Chhattisgarh, reported in 2001 (9) SCC 618, more particularly, para 20 to 22;

ii) Velmurugan Vs. State, represented by the DSP with M. Mohan Vs. State, represented by the DSP, reported in 2011 (3) SCC 626, more particularly, para 37 to 50;

iii) Randhir Singh Vs. State of Punjab and Haryana, reported in 2004 (13) SCC 129, more particularly, para 12 and 13;

iv) Indrasing M. Raol Vs. State of Gujarat, reported in 1999 (3) GLR 2536, more particularly, para 16 and 17;

v) Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, reported in 2002 (5) SCC 371.

3.4 Making above submissions, it is requested that so far as offence punishable under Section 498-A of the IPC is concerned, the appellant has undergone the substantial part of sentence, as aforesaid, and in view of the submissions made, since no ingredients of the offence punishable under Section 306 of the IPC are established, the impugned judgment and order qua conviction under Section 306 of the IPC may be quashed and set aside.

Per contra, Ms. Bhatt, the learned Additional Public Prosecutor for the respondent - State, submits that the learned trial Court has committed no error while appreciating the evidence on record. In this context, while referring the evidence of the prosecution witnesses, it is submitted that almost all the prosecution witnesses have supported the case of the prosecution and the learned trial Court, after due appreciation and evaluation of the evidence on record, has rightly come to such a conclusion and accordingly, this Court may not interfere in the impugned judgment and order of conviction and sentence. She

submitted that it is clear from the evidence on record that the appellant - accused had been inflicting physical and mental torture upon the deceased by preventing her to visit her parental home and from the complaint, Ex. 15 as well as the evidence of the complainant, the father of the deceased (Ex. 14) and also the evidence of the mother of the deceased (Ex. 25) and other prosecution witnesses, who have supported the case of the prosecution, the prosecution has successfully proved its case beyond reasonable doubt. She submitted that no wise man can take such a drastic step unless the circumstances so constrain.

4.1 The learned Additional Public Prosecutor further submitted that the incident has occurred within seven years of the marriage as the marriage span of only four years and accordingly, there are all the reasons for the Court to presume against the appellant - accused by virtue of Section 113-A of the Evidence Act, 1872 (for brevity, ''the Evidence Act ''). She further submitted that such harassment and cruelty were so persistent that led the deceased to commit suicide and accordingly, looking to the gravity of offence, she requested to dismiss the present appeal. In support, the learned Additional Public Prosecutor has relied upon a decision in the case of Vajresh Venkatray Anvekar Vs. State of Karnataka, reported in AIR 2013 SC 329.

Regard being had to the above submissions advanced by the learned advocates for the respective parties and looking to the impugned judgment and order passed by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad, it appears that the learned Court below has acquitted the present appellant for the offence punishable under Sections 3 and 7 of the Dowry Prohibition Act and has convicted

him for the offences punishable under Section 498-A and 306 of the IPC. The learned advocate for the appellant has restricted his case qua Section 306 of the IPC in view of substantial period of sentence having undergone by the present appellant in jail for the offence punishable under Section 498-A of the IPC. Accordingly, the ingredients of the said section (306) are required to be satisfied. For the ready reference, Section 306 is reproduced herein below:

" 306. Abetment of suicide:

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."

5.1. The criminal law mandates the prosecution to prove its case against the accused beyond reasonable doubt on the basis of the oral as well as the documentary evidence produced on record and the ingredients of the offence alleged, must be satisfied. The tenor of Section 306 of the IPC suggests that the abetment is to be persistent in nature, which eventually lead to a person to take a drastic step of committing suicide. In the instant case, if the facts are seen, allegedly, the deceased was being physically and mentally harassed by the appellant - accused. The appellant - accused used to prevent the deceased from visiting her parental home. He also used to beat up the deceased every now and then and also used to have doubts on the deceased. Further, as the facts reveal, the deceased used to inform her parents about such ill- treatments being meted out to her at the hands of the appellant - accused whenever she visited and/or contacted her parents. She also stated her parents about doubting nature of the appellant - accused and thereby, quarrels at the instance of the appellant - accused. And when, such a harassment and ill-treatment became unbearable, she committed suicide on the unfortunate day of the incident in question. It is also revealed from the facts that on the date of incident, the deceased had telephoned her father (the complainant) for about five times conveying that the appellant - accused was quarrelling with her keeping suspicion and also threatened to kill the father of the deceased. In this regard, if the deposition of PW-1 Jagjivandas Raviramdas Dudhrejiya, Ex. 14, the complainant and father of the deceased is referred, he has supported the case of the prosecution in toto and has adhered to his version made in the complaint, Ex. 15. Moreover, PW-3 Ansuyaben Jagjivandas Dudhrejiya, the mother of the deceased has also supported the case of the prosecution. Besides, PW-4 Raviramji Arjandasji Dudhrejiya, Ex. 26, the grandfather of the deceased has also supported the case of the prosecution. Besides, other prosecution witnesses have also supported the case of the prosecution and thereby, substantiated the fact of quarrels used to take place at the instance of the appellant - accused with the deceased and the same was persistent in nature as is revealed from the depositions of the prosecution witnesses.

5.2 Besides, undisputedly, the incident in question has occurred within a short span of four years of the marriage and in view of the facts and circumstances of the case on hand so also the evidence on record, the Court has all the reasons to presume against the accused in view of Section 113-A of the Evidence Act, unless and until, contrary is proved by the appellant - accused. However, in the case on hand, the prosecution has successfully proved its case, beyond reasonable doubt against the appellant - accused and the learned advocate for the appellant - accused is not in a position to show otherwise and accordingly, this Court is of the considered view that the appeal is bereft of any merits. Moreover, there cannot be dispute as to the ratio laid down in the decisions relied upon by the learned advocate for the appellant, however, in the facts and circumstances of the case vis-a-vis evidence on record, the same could of no help to the present appellant.

5.3 At this juncture, it is apt to note that the learned advocate for the appellant - accused has placed on record an affidavit duly affirmed by the appellant - accused stating that, after he was enlarged on bail, he has remarried on 29/01/2016 and out of the said wedlock, he has a girl child born on 15/12/2016. Besides, the appellant - accused is working with a company namely Mediwin Pharmaceuticals as an Assistant Chemist, situated at Naroda. Accordingly, the learned advocate for the appellant - accused has alternatively requested that in view of the aforesaid facts of the affidavit of the appellant - accused, as the appellant has remarried and having a minor daughter and also when the appellant has undergone a period of 02 years, 05 months and 03 days in jail and after the release of the appellant - accused, nothing adverse appears to have been reported against the appellant and when the appellant is settled in life, he has prayed for to reduce the sentence to the period already undergone by appellant in jail.

5.4 The Court considered the aforesaid request. Taking into consideration the submissions made by the learned advocate for the appellant and for the contents of the affidavit vis-a-vis the facts and circumstances of the case on hand, more particularly, the fact that the appellant has undergone 02 years, 05 months and 03 days in jail and has remarried after release on bail and having a minor daughter and having such

responsibility and considering the fact that after release of the appellant on bail, nothing adverse has been notified against him, in the interest of justice and in the fitness of things, this Court, while upholding the conviction, taking a lenient view of the matter, deems it just and proper to reduce the sentence to the period already undergone by the appellant in jail. However, while reducing the sentence of imprisonment as aforesaid, this Court deems it just and proper to enhance the amount of fine to tune of Rs.1 lakh against total amount of Rs.6,000/- imposed by the learned trial Court, which shall be payable to the complainant so as to meet the ends of justice.

In view of the aforesaid discussion, present appeal succeeds in part.

While upholding the judgment and order of conviction dated 12/02/2014 passed by the learned Additional Sessions Judge, Court No. 11, City Sessions Court, Ahmedabad in Sessions Case No. 324 of 2012, the sentence imposed upon the present appellant - accused is reduced to the period he has already undergone in jail. However, the fine imposed by the trial Court totalling to Rs.6,000/- is enhanced to Rs.1 lakh. Accordingly, out of Rs.1 lakh, the appellant is directed to deposit Rs.50,000/- by 16/08/2017, whereas, remaining amount of Rs.50,000/- shall be paid on or before 29/09/2017 before the trial Court concerned and the trial Court shall disburse the said amount to the original complainant by way of A/c. Payee cheque, on proper verification and following due procedure. The appellant is reported to be on bail. Subject to his depositing the amount of fine, as aforesaid, his bail bond shall stand cancelled and he shall not require to surrender to custody except he is required so in other offence. If the appellant fails to deposit the aforesaid amount of fine within the stipulated time,

he shall have to surrender to custody for undergoing the sentence, failing which, the concerned investigating agency shall take necessary actions, in accordance with law. Registry to return the R&P to the trial Court forthwith.