Harjivan Keshavbhai Patel vs State of Gujarat

J.C. Upadhyaya, J.—The appellant who was original accused No. 1 in Sessions Case No. 65 of 1997, preferred this appeal challenging his

conviction recorded by the Presiding Officer, 4th F.T.C., Rajkot at Morbi [for short ''the Ld. Trial Judge''] on 10/6/2005 for the commission of

offences punishable under Sections 498-A, 306 and 304-B of the Indian Penal Code [for short ''IPC''].

The prosecution case, in short, is that Manjulaben, sister of first informant Jayeshbhai Haribhai, married the appellant prior to about 6 years from

the date of the incident. The incident occurred on 1/6/1997 when Manjulaben was in the house of the appellant. It is the case of the prosecution

that the appellant, who was husband of Manjulaben, used to cause cruelty and ill-treatment to his wife and that he used to demand dowry and cash

amount for the purpose of establishing a diamond polishing factory. That the appellant was in a habit of playing gambling and even he lost the

golden ornaments in the gambling. On the day of the incident, because of the extreme cruelty and ill-treatment meted out to Manjulaben, she

decided to put end to her life and poured kerosene on her body and set herself on fire. At that time minor daughter of the appellant and

Manjulaben, named Ankita abruptly came in contact with Manjulaben and she also sustained severe burn injuries. Manjulaben and Ankita both

died. On 11/6/1997 first informant Jayeshbhai Haribhai, brother of Manjulaben lodged first information report before the Circle Police Inspector,

Morbi, which came to be registered. Police commenced investigation. Statements of material witnesses were recorded. Post mortem reports were

collected. Necessary samples collected from the scene of offence were forwarded to Forensic Science Laboratory [FSL]. After collecting

sufficient material for the purpose of lodgment of charge-sheet, charge-sheet came to be filed in the Court of the Ld. Judicial Magistrate First Class

at Morbi. Since the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions,

Rajkot at Morbi, which came to be registered as Sessions Case No. 65/1997. The charge-sheet came to be filed against the present appellant as

well as the co-accused Keshavjibhai Motibhai being father of the appellant.

The Ld. Trial Judge framed charge at exh. 1 against the present appellant as well as co-accused Keshavjibhai Motibhai, father of the appellant

for the offences punishable under Sections 498-A, 306, 304-B read with Section 114 of the IPC, to which both of them pleaded not guilty and

claimed to be tried. Therefore, prosecution adduced its oral and documentary evidence. After completion of the oral evidence adduced by the

prosecution, the Ld. Trial Judge recorded further statements of both the accused including the appellant. They denied generally all the allegations

levelled against them by the prosecution and stated that the deceased was never meted out with any cruelty or demand of dowry. That as a matter

of fact, when Manjulaben sustained burn injuries, she was preparing tea on a stove and accidentally she caught fire and sustained the injuries. At

that time, Ankita, daughter of the deceased caught hold of the deceased and she also sustained burn injuries and died. That at the time of incident,

the appellant was residing in a rented house with his wife Manjulaben and daughter Ankita separately from his father, the co-accused Keshavjibhai

Motibhai. After appreciating the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge recorded conviction

of the appellant, the original accused No. 1 for the offences punishable under Sections 498A, 306 and 304-B of the IPC, and was sentenced to

undergo rigorous imprisonment [RI] of 3 years and fine of Rs. 3,000/-, in default of payment of fine, simple imprisonment [SI] for 3 months for the

offence punishable u/s 498-A of the IPC and [RI] of 10 years and fine of Rs. 5,000/-, in default of payment of fine, SI for 6 months for the offence

punishable u/s 306 of the IPC and [RI] of 10 years and fine of Rs. 5,000/-, in default of payment of fine, SI for 6 months for the offence

punishable u/s 304-B of the IPC. All the sentences were ordered to run concurrently. Hence, the appellant-original accused challenged his

conviction by preferring this appeal. However, by virtue of the impugned judgment and order, the Ld. Trial Judge recorded acquittal of accused

No. 2-Keshavjibhai Motibhai, father of the appellant.

Learned advocate Mr. Qureshi for the appellant submitted that the trial Court erred in recording the conviction of the appellant for the offences

charged against him. That as a matter of fact, the incident occurred on 1/6/1997, whereas the FIR came to be lodged on 11/6/1997. It is

submitted that thus there is belated FIR. The delay is not at all explained by the prosecution. It is submitted that Manjulaben and Ankita were

immediately removed to hospital. That immediately the appellant informed the police about the accidental injuries sustained by Manjulaben and

Ankita and A.D. No. 13 of 1997 came to be registered for the information supplied by the appellant. That in connection with A.D. No. 13 of

1997, investigation was commenced. In connection with the investigation of A.D. No. 13 of 1997, panchnama of the scene of offence was drawn

on 2/6/1997. Inquest panchnamas of both the deceased Manjulaben and Ankita were drawn on 1/6/1997 and statements of father, brother and

brother''s wife were recorded by the police during A.D. Inquiry. It is submitted that though on behalf of accused, by tendering an application to the

trial Court, at exh. 24 requested for production of papers of A.D. Inquiry, the same came to be rejected. However, investigating PSI Mr. Solanki

in his evidence exh. 33 admitted about the inquiry conducted in connection with A.D. No. 13 of 1997. It is submitted that even during the course

of inquiry conducted under A.D. No. 13/1997, father, brother and brother''s wife must not have alleged any ill-treatment being caused by the

appellant to his deceased wife Manjulaben, otherwise such statement of either father, brother or brother''s wife would have been considered by the

police as first information report. Nothing whatsoever was done and only on 11/6/1997 when first informant Jayeshbhai lodged FIR the offence

came to be registered. Thus, not only in the instant case there is the delayed FIR and the delay is not explained by the prosecution, but the above

circumstances suggest doubt about the genuineness of the allegations levelled by the first informant Jayeshbhai in his FIR.

4.1. Mr. Qureshi further submitted that the prosecution has come forward with the case that deceased Manjulaben committed suicide by setting

herself on fire. Considering the panchnama of scene of offence, it clearly transpires that a courtyard of her house was used as kitchen. One stove

[prims] known as Ashok stove was lying there, lid of the wicks was open, patches of dried kerosene were found on the floor. Adjacent to the

stove, one aluminium bowl containing tea leaves was found and surrounding to it, some tea leaves were also found scattered on the floor. No

marks of ash were visible. Therefore, it is submitted that the defence raised by the appellant that deceased accidentally sustained burn injuries

deserves to be accepted. The prosecution should prove its case regarding the suicide beyond any reasonable doubt in such a manner that there

shall not be any possibility of presuming that it was an accident. The prosecution should rule out all the possibility of accidental fire. It is, therefore,

submitted that the prosecution failed to establish its case.

4.2. It is further submitted that along with the appellant, the trial proceeded against his father, the accused No. 2-Keshavjibhai Motibhai. On the

same set of evidence, co-accused Keshavjibhai came to be acquitted by the trial Court; whereas the appellant came to be convicted.

4.3. It is further submitted that the prosecution failed to prove the proximity test to the effect that soon before the incident deceased was meted out

with cruelty and demand of dowry. Therefore, it is submitted that the appeal may be allowed.

Ld. APP Mr. Mengdey for the respondent-State vehemently opposed this appeal and submitted that it has come in evidence that when the

deceased committed suicide, she was pregnant and while she set herself on fire, her minor daughter named Ankita abruptly came in her contact

and both succumbed to the burn injuries. The delay in lodgement of the FIR is duly explained by the first informant Jayeshbhai Patel, the brother of

the deceased. At the time of the incident he had gone to Calcutta and as soon as he came back from Calcutta, he lodged the FIR. The prosecution

successfully proved its case that the deceased committed suicide. The incident occurred within 7 years from the date of marriage. Therefor, the

relevant presumptions contained in Sections 113-A and 113-B shall apply. The prosecution successfully proved that the deceased was meted out

with cruelty and ill-treatment by her husband, the appellant herein on account of demand of dowry. Therefore, it is submitted that the appeal may

be dismissed.

We have considered the record and proceedings of the trial Court in context with the submissions made on behalf of both the sides.

Considering the evidence on record, there is no dispute that the incident occurred on 1/6/1997 and the FIR came to be lodged on 11/6/1997.

After the date of the incident and before the FIR came to be lodged, the appellant informed police about the incident and the information was

registered as A.D. No. 13/1997 by the police. In connection with A.D. Inquiry, panchnama of the scene of offence was drawn, statements of

witnesses were recorded, post mortem reports of both the deceased i.e., Manjulaben and her minor daughter Ankita were collected. It is true that

the accused had filed an application before the trial Court at exh. 24 requesting the production of investigation papers in connection with A.D. No.

13/1997. However, said application came to be rejected by the trial Court. Considering the evidence of Investigating Officer [IO] PSI Mr. Solanki

exh. 33, he admitted about the inquiry conducted in connection with A.D. No. 13/1997. Considering the evidence of first informant Jayeshbhai

Patel exh. 15, he admits that at the time of the incident he had gone to Calcutta and when he received the information about the incident, he came

to his house at Morbi on or about 9/6/1997 and he lodged the FIR on 11/6/1997. Under such circumstances, his statement was not recorded by

the police in connection with A.D. No. 13/1997. However, witness Ashwinbhai Patel, brother of the deceased is examined at exh. 26. Ld.

Advocate Mr. Qureshi submitted that in connection with A.D. No. 13/1997 his statement was recorded and after the lodgement of the FIR his

further statement was recorded. In this connection, though witness Ashwinbhai does not specifically admit about his statement being recorded in

connection with A.D. Inquiry, he stated that he cannot say as to on how much occasions police recorded his statements. The prosecution

examined witness Mitaben Jayeshbhai, the wife of first informant Jayeshbhai and brother''s wife of deceased Manjulaben. Mitaben in her evidence

exh. 32 stated that the incident occurred on 1/6/1997 and on the very next day, police had recorded her statement. Under such circumstances, it

can be said that the statement of Mitaben was recorded by police on the next day to the date of the occurrence i.e., on 2/6/1997 in connection

with A.D. No. 13/1997. The prosecution examined the above referred 3 witnesses, who are brothers and brother''s wife of the deceased to prove

its case. During the course of A.D. Inquiry, statements of Ashwinbhai and Mitaben were recorded. The FIR came to be lodged later on 11/6/1997

by first informant Jayeshbhai. However, copies of the statements of such witnesses recorded during the course of A.D. Inquiry have not been

produced on record by the prosecution, but it can safely be said that during the course of A.D. Inquiry, none of the witnesses appears to have

alleged about any ill-treatment caused to the deceased by her in-laws, for the simple reason that if either Ashwinbhai or Mitaben had alleged in

their statements recorded during A.D. Inquiry about any ill-treatment or cruelty caused to the deceased by the appellant and his family members in

connection with demand of dowry, then the police would have treated such statement as FIR. Nothing whatsoever was done. Under such

circumstances, the submission made by learned advocate Mr. Qureshi for the appellant that the witnesses did not say anything about ill-treatment

or cruelty caused by the appellant to the deceased at the time of their statements during A.D. Inquiry, but subsequently after lodgement of belated

FIR, they came with totally different story. Considering the above discussion, the submission deserves consideration.

7.1. Moreover, according to the evidence of witnesses Ashwinbhai and Mitaben, if they were knowing from the beginning that deceased

Manjulaben was meted out with cruelty by the appellant on account of demand of dowry, any-one of them could have immediately lodged FIR

and there was no reason whatsoever to wait for first informant Jayeshbhai to come from Calcutta. Neither Ashwinbhai nor Mitaben lodged the

FIR. Even considering the evidence of first informant Jayeshbhai at the time when the incident occurred, he was in Calcutta and according to him,

on 9/6/1997 he came to Morbi and thereafter, he lodged the FIR. The FIR came to be lodged on 11/6/1997. Thus, even after coming to Morbi

on 9/6/1997, he did not lodge FIR immediately.

7.2. Considering the evidence of the first informant Jayeshbhai Patel, he stated that the accused demanded monetary help from him and asked him

to establish a diamond polishing factory at Navsari so that the accused and Manjulaben can stay at Navsari and do the diamond polishing work.

Witness Jayeshbhai further stated that he invested Rs. 80,000/- for the purpose of establishing such factory for the appellant and he had hired a

premises for the appellant. In his cross-examination he admitted that there is no evidence either oral or documentary to support his say that that he

paid Rs. 80,000/- for the purpose of establishment of factory for the appellant and that for that purpose a premises was hired. He further stated

that he cannot say as to on how-much occasions he met Manjulaben after her marriage. He further admitted that after the lodgement of FIR on

11/6/1997 he came to his house and at that time his father told him that he had already given his statement to the police. He did not inquire to his

father as to what his father narrated before the police in his statement, before the lodgement of FIR. He stated that the accused compelled

Manjulaben to do agricultural labour work, but also admitted that the accused owned about 25 Vighas of agricultural land and all his family

members were helping him in doing agricultural work. Deposition of witness Ashwinbhai Patel exh. 26 also runs on the same line. He is also

brother of deceased Manjulaben. It is pertinent to note that according to his evidence, Manjulaben before her death, last visited her parents'' house

on the occasion of marriage of her younger sister Kanchanben. He admitted that the marriage of Kanchanben was solemnized before about one

year from the date of the incident. However, he stated that before the incident he had gone to the house of Manjulaben and met her on 21/5/1997,

but he admitted that at that time Manjulaben did not say anything to him about any ill-treatment or cruelty meted out to her by her husband.

Considering the evidence of Mitaben, the wife of first informant Jayeshbhai, she also admitted that before the incident, Manjulaben last visited her

parents'' house on the occasion of marriage of Kanchanben. As stated above, the marriage took place before about one year from the date of the

incident. She admitted that on the next day of the incident, police had come and she was inquired by police and her statement was recorded. She

categorically admitted that the incident took place on 1/6/1997 and on the next day, police recorded her statement. She further admitted that at

that time police also inquired to her father-in-law and mother-in-law and recorded their statements.

7.3. Thus, the witnesses examined by the prosecution admitted that before the lodgement of FIR, statements of father, mother, brother and

brother''s wife were recorded by the police in connection wit A.D. Inquiry. As observed above, if at all any of them would have stated in their

statements regarding any ill-treatment or cruelty caused by the accused-appellant to the deceased in connection with demand of dowry, then

immediately the police would have treated such statement as FIR. The very fact that the police commenced investigation in connection with offence

after the lodgement of FIR on 11/6/1997, clearly suggests that the parents, brother and brother''s wife would not have alleged anything against the

appellant in their statements recorded under the A.D. Inquiry. Apart from that, even considering the evidence adduced by Jayeshbhai, Ashwinbhai

and Mitaben, it clearly transpires that since last one year from the date of the incident, deceased had not come to the house of her parents.

Ashwinbhai though stated that he visited house of deceased on 21/5/1997, but admitted that the deceased did not tell him anything about any ill-

treatment or cruelty caused to her by the appellant. The prosecution did not produce any supporting documentary or oral evidence to support the

allegation that Rs. 80,000/- were paid for the purpose of establishment of factory for the appellant and even a premises was hired at Navsari for

said purpose.

7.4. Under such circumstances, in the instant case, not only delay in lodgement of FIR is not satisfactorily explained by the prosecution, but

considering the discussion regarding the A.D. Inquiry and the facts regarding the statements recorded by police during the course of said inquiry, as

discussed above in this judgment, the delay in lodgement of FIR creates reasonable doubt about the case of the prosecution.

Moreover, considering the panchnama of the scene of offence exh. 112, it clearly transpires that in the house where the incident occurred, one

stove [primus] known as Ashok stove was lying and the lid of the wicks was open and patches of dried kerosene were found on the floor.

Adjacent to the stove, one aluminium bowl containing tea leaves was there and surrounding to it, some tea leaves were scattered on the floor. No

marks of ash were visible. The burnt match-sticks were found near the stove. The above facts rather support the defence of the appellant that at

the time of preparing tea deceased accidentally caught fire. In the case of Satpal v. State of Haryana reporyed in 1998 S.C.C. [Cri] 1372 in a

matter arising in connection with offences punishable under Sections 498-A, 306 and 304-B of the IPC, Hon''ble the Apex Court observed in

para. 2 as under:

Simply because aluminium phosphate, a poison was found in the viscera of the deceased, it cannot be held that the deceased has consumed the

said poison for the purpose of committing suicide. Unless accidental consumption of such poison and administration of such poison by someone

are ruled out, the case of suicide cannot be held to have been established beyond reasonable doubt.

Thus, in the instant case the prosecution shall rule out the possibility of accidental fire and shall prove its case of suicide beyond any reasonable

doubt. In light of the above discussions, it cannot be said that the prosecution satisfactorily ruled out the possibility of accidental fire. In the result,

the prosecution failed to prove beyond any reasonable doubt the factum of suicide having been committed by the deceased. As per the case of the

prosecution, at the time of incident, Ankita, minor daughter of deceased Manjulaben abruptly came in contact with Manjulaben and she also

sustained severe burn injuries.

Last but not the least, it is pertinent to note that almost identical allegations were made by the prosecution against the accused No. 2-Keshavji

Motibhai, the father of the appellant and father-in-law of deceased Manjulaben. The Ld. Trial Judge on the same set of evidence, convicted the

appellant, but recorded acquittal of the co-accused Keshavjibhai. The State did not challenge the acquittal by preferring any appeal.

In light of the above discussions, we are of the considered opinion that the appeal deserves acceptance. The impugned order of conviction

recorded by the Ld. Trial Judge deserves to be set aside.

For the foregoing reasons, the appeal is allowed. The conviction of the appellant as recorded by the Presiding Officer, 4th F.T.C., Rajkot at

Morbi by judgment dated 10/6/2005 rendered in Sessions Case No. 65 of 1997 is set aside. The appellant is acquitted of charges levelled against

him. He be set at liberty forthwith if not required in any other case. Fine, if paid, be refunded to him.