State of Gujarat vs Chhaganbhai Bhagwanbhai Soni and Others

Kaushal Jayendra Thaker, J.—This is an appeal by the appellant-State, challenging the judgment and order of the learned Addl. Sessions Judge, Deesa (for short, ''the trial Court''), Dated: 24.10.2003, rendered in Sessions Case No. 132 of 2002, whereby, the trial Court acquitted all the original accused-Respondent Nos. 1 to 3, herein, of the charges under Section 306 and Section 114 of the Indian Penal Code.

For the sake of convenience the parties shall be referred to, as they stood before the trial Court.

The brief facts of the case of the prosecution, as set out before the trial Court, are that the original complainant lodged a complaint before the Dhanera Police Station on 08.03.2002 in connection with the death of his son, namely Ashok, who is stated to have expired on 07.03.2002, at about 02:00 a.m.. It is stated in the complaint that the deceased Ashok was married to the daughter of original accused No. 1, i.e. original accused No. 3, before about two years of the alleged incident. It is alleged in the complaint that, after marriage, accused No. 3 used to come for stay with the deceased for a while, and then, she used to go back to her parental house and if, she is not permitted go back to her parental home, accused No. 3 used to threat the deceased and his family members of committing suicide either by setting herself ablaze or by hanging. It is stated in the complaint that about one and a half year prior to the alleged incident, accused No. 3 had lodged a complaint before the competent Court at Dessa for mental and physical harassment and demand of dowry and in connection with that case, the deceased was arrested also and he was, later on, enlarged on bail. The accused No. 3, thereafter, stopped going to her matrimonial home and instead filed an application for maintenance at Deesa. It appears that the matter was, subsequently, compromised due to intervention of the elders of both the families and their caste. It is stated in the complaint that, though, the deceased was given an independent shop of goldsmith at Sanchor, accused No. 3 did not care to look after his household. It is, then, stated in the complaint that before twenty days of the alleged incident, the brother of accused No. 3 came to take her back to her parental home. Then, on 04.03.2002, one Prabhulal Bheraji Soni, who happened to be a cousin of accused No. 3, came to the house of the complainant at Shivganj and told that he would send accused No. 3 to their home, and hence, the deceased went along with said Prabhulal. After three days, i.e. on 07.03.2002, the complainant received a phone call from his son Pannalal that there was a phone-call of Ramesh from Dhanera and he informed that the condition of the deceased Ashok was very serious and he is admitted in a hospital. On reaching Dhanera, the complainant came to know that the deceased had gone to Runi to bring accused No. 3 back and there, according to the complainant, due to harassment on the part of accused Nos. 1 to 3, the deceased committed suicide by consuming some poisonous substance. Hence, the complainant lodged the complaint in question. On registration of the offence, police carried out investigation into the alleged offence and on finding sufficient evidence, filed charge-sheet against accused-Respondent Nos. 1 to 3, herein. At the time of trial, the accused did not plead guilty and claimed to be tried, and hence, the case was committed for trial.

Before the trial Court, to bring home the charges leveled against the accused, the prosecution examined the following witnesses;

Over and above the oral evidence, the prosecution also produced the following documentary evidences in support of its case;

At the end of the trial, the further statements of the accused Nos. 1 to 3 under Section 313 of the Cr.P.C. came to be recorded, and then, the trial Court passed the impugned judgment and order, as referred to in Paragraph-2, herein above. Hence, the present appeal.

Ms. Shah, learned APP for the appellant-State, submitted that the trial Court committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its true perspective. The trial court failed to appreciate that the evidence of the prosecution witnesses are corroborative to each other, and therefore, the trial court erred in recording the acquittal of the accused persons. She, further, submitted that the deceased Ashok had left a suicide-note incriminating the accused Nos. 1 to 3, which stands established by the evidence of the Handwriting Expert, and hence, the judgment and order of the trial Court deserves to be set aside. She, therefore, prayed that the present appeal be allowed.

As against this, Mr. Prajapati, learned Advocate for Mr. Rathod, learned Advocate for accused Nos. 1 to 3-Respondents, herein, supported the judgment and order of the trial Court and submitted that the trial Court acquitted the accused, after taking into consideration the entire material before it, in the form of oral evidence of the witnesses as well as documentary evidence, and hence, no interference is called for at the hands of this Court.

Heard learned APP for the appellant-State and learned Advocate for the original accused Nos. 1 to 3 and perused the material on record with their assistance including the impugned judgment and order passed by the trial Court.

In order to establish the guilt of the accused Nos. 1 to 3-respondents, herein, prosecution examined the doctor, who had performed PM on the body of the deceased, as P.W.-1. P.W.-1, in his deposition (Exhibit-14), stated that while he was on duty on 07.03.2002, a dead-body of a male was brought to CHC, Dhanera, for PM. P.W.-1 stated that he along with one Dr. Shah carried out the PM on the body of the deceased. Column Nos. 15, 16 and 17 of the PM Note of the deceased reads as under;

This witness, further, submitted that the injuries mentioned at Column Nos. 10 and 17 were simple in nature and same cannot result into death. According to P.W.-1, the cause of death of the deceased was due to acute cardio-respiratory failure due to consumption of hydrocynide acid (metabolic product of sodium or potassium cynide).

P.W.-2, who happened to be the father of the deceased and who had lodged the complaint of the alleged offence, in his deposition (Exhibit-20), stated that the deceased was married to accused No. 3 and after marriage accused No. 3 used to come to their house occasionally. P.W.-2 stated that whenever accused No. 3 used to come to their house, she used to say that she would commit suicide with a view to see that she is allowed to go back to her parental home. After accused No. 3 went to her village Runi, she sent her cousin Prabhulal to bring the deceased, then, the alleged incident took place on 04.03.2002. P.W.-2, then, stated that on receiving the news about the alleged incident, when, he reached hospital at Dhanera along with others, police showed them a note written by the deceased, wherein, it was written that he was committing suicide due to harassment on the part of the accused Nos. 1 to 3. P.W.-2, then, stated that police had come to Shivganj and had asked for papers containing handwriting of the deceased and this witness had given them a diary of the deceased. According to P.W.-2, the deceased committed suicide on account of harassment by the accused persons. In his cross-examination, P.W.-2 conceded that it is true that the accused No. 3 had been residing with accused No. 2 at Runi before 10-15 days prior to the alleged incident. This witness, then, stated that Prabhulal, who happened to be the son of brother of accused No. 1, had come to bring the deceased and after they left, P.W.-2 had inquired that they had reached Runi. P.W.-2 also conceded that accused No. 3 had lodged complaint against him and others for physical and mental harassment, but, the matter was later on compromised and as per the said compromise, the deceased was given a separate shop at Sanchor. However, accused No. 3 stayed with the deceased for only two days at Sanchor and again went back to Runi, and hence, the deceased came to reside with P.W.-2. P.W.-2 denied the suggestion that, since, the business of the deceased was not running well, he and the deceased used to demand money from accused No. 1 frequently and that the complainant forced the deceased to make incriminating writing against the accused on 04.03.2002 and on the very same day also got the letters prepared through the deceased.

P.W.-3, was a panch-witness to the panchnama of seizure of Papers containing handwriting of the deceased (Exhibit-22) from Shivganj, this witness, in his deposition (Exhibit-21), fully supported the prosecution on the aspect of aforesaid panchnama. In his cross-examination, this witness denied the suggestion that he was deposing falsely, since, the complainant is his relative.

P.W.-4, who happened to be the brother of the deceased, in his deposition (Exhibit-34) stated that after marriage, accused No. 3 used to come for stay at their house and at that time she used to frequently quarrel and threat that she would commit suicide with a view to go back to her parental house. P.W.-4 stated that accused No. 3 had lodged a complaint against deceased and others for mental and physical harassment and when the matter was compromised subsequently, as per the terms of the said compromise, a separate shop was opened for the deceased at Sanchor. However, the business was not successful and accused No. 3 went to her parental home and filed an application for maintenance against the deceased. P.W.-3 stated that the aforesaid matter was also compromised and accused No. 3 came to reside with them at Shivganj, but, she again quarreled with them and went back to her parental home. The rest of the evidence of P.W.-4, i.e. the cousin of accused No. 3-Prabhulal came to bring the deceased, and then, they came to know about the alleged incident and on reaching Dhanera, police showed them the body of the deceased and the notes found from the person of deceased etc., is similar to that of P.W.-2 his father, and hence, there is no need to examine the same in detail. According to P.W.-4, the reason for the alleged incident was the harassment of the deceased by the accused persons. In his cross-examination, this witness denied the suggestion that, since, the business of the deceased was not doing well, they used to reprimand and harass the deceased about the same and that the complainant and the deceased frequently used to demand money from accused No. 1.

P.W.-5, who happened to be the uncle of the deceased, in his deposition (Exhibit-35), stated that after the marriage of the deceased with accused No. 3, accused No. 3 used to stay with her parents and when the complainant along with his wife went to bring accused No. 3 to her matrimonial home, accused No. 3 filed cases against them. P.W.-5, further, stated that the matter was subsequently compromised and as per the settlement, the articles given by the father of accused No. 3 were returned to them and the deceased was given a separate house and a shop at Sanchor so that he and accused No. 3 can reside together. Despite that, accused No. 3 quarreled with the deceased at Sanchor and that the deceased, then, closed the shop at Sanchor and came back to reside with the complainant. Then, the evidence of this witness, i.e. the cousin of accused No. 3 came and took the deceased with him and the alleged incident took place etc., are similar to the evidence of P.W. Nos. 2 and 4. In his cross-examination, this witness denied the suggestion that, in his statement before the police, he did not state that there was no harassment to the deceased from the accused persons and that they fabricated the fact of suicide-note at Shivganj and that no such note was received from the person of the deceased.

P.W.-6, who happened to be the mother of the deceased, in her deposition (Exhibit-36), recited the facts and allegations already made by P.W. Nos. 2 and 4, i.e. her husband and son respectively, in their respective statements, i.e. as to how accused No. 3 used to quarrel and used to threaten them of committing suicide with a view to go back to her parental home and as to how she left the deceased at Sanchor, though, the deceased was given a separate house and shop there and as to how accused No. 3 went to her parental home and then send her cousin to bring the deceased there, and then, how the alleged incident took place etc.. In her cross-examination, this witness admitted that, in her statement before police, she stated that accused No. 1 asked to let the deceased and accused No. 3 live separately, and therefore, they did so. This witness denied the suggestion that it is not true that accused No. 3 did not use to quarrel and threat them and that instead the complainant side used to quarrel with accused No. 3.

P.W.-7, who was discharging duties as PSO, Dhanera Police station at the time offence, in his evidence (Exhibit-37) stated that he had merely registered the offence, on the basis of the complaint of the complainant.

P.W.-8, who was a witness to the panchnama (Exhibit-42) of seizure of muddamal from the body of the deceased, in his deposition (Exhibit-40), stated that on 07.03.2002, police had called him to act as a panch-witness in connection with a panchnama of seizure of muddamal from the dead-body of a male, who was ''Soni'' (Goldsmith). This witness, then, muddamal article Nos. 1 and 2, however, he was not sure that muddamal article Nos. 4 and 5, i.e. a currency note of Rs. 100/- and a Rs. 5/- coin, were the same, which were show to him at the time of panchnama. This witness, then, identified his own signature as well as that of Panch No. 2 in the said panchnama. In his cross-examination, this witness stated that he had signed a ready-made panchnama and that nobody produce the aforesaid muddamal articles in his presence. However, he, at the same, admits in his cross-examination that aforementioned muddamal articles were lying on the table.

P.W.-10, who was a witness to the panchnama (Exhibit-22) of seizure of handwriting of the deceased, in his deposition (Exhibit-44), stated that after the death of deceased, he had gone to the house of the complainant and at that time, Gujarat Police had come and has asked for any document, containing handwriting of the deceased, which was given by the complainant to the police. This witness, then, identified his signature on muddamal article No. 6. In cross-examination, the evidence of this witness remains uncontroverted and he denied that he was deposing falsely with a view to support the complainant.

P.W.-11, who was the IO and had carried out investigation into the alleged offence, in his deposition (Exhibit-46), fully supported the prosecution case, narrating the entire procedure of investigation, as to how he recorded the statement of the witnesses and seized the muddamal article etc., and the evidence of this witness remains unshaken on the material aspects.

P.W.-12, who was a handwriting expert, in his deposition (Exhibit-55) stated that he has carefully examined the disputed document Nos. D-1, D-2 and D-3 and the document Nos. N-1, N-2, N-3 and NN-1, NN-2 and NN-3, which contains the natural handwriting, were written by the one and the same person. In his cross-examination, this witness denied the suggestion that no such documents were send to him for examination and that he has given no opinion on the same.

So far as the evidence of P.W.-9 is concerned, he did not support the case of the prosecution and was declared hostile.

Having perused the material on record, in the form of oral evidence of the witnesses and in the form of documents, now, this Court has to examine, as to whether the prosecution can be said to have established its case that the deceased Ashok committed suicide due to the harassment meted out to him by the accused Nos. 1 to 3, beyond reasonable doubt.

In that regard, if, the evidence of the complainant, who happened to be the father of the deceased and who was examined as P.W.-2, is perused, then, it transpires that the accused No. 3 used to frequently quarrel with the deceased for going back to her parental house and she even used to threat the deceased and others, saying that, if, she is not permitted to go back to her parental house, she would commit suicide by either setting herself ablaze or by hanging, herself. The evidence of P.W.-2 to that extent gets support from the evidence of P.W.-4 and P.W.-6, who happened to be the brother and the mother of the deceased, respectively. According to P.W. Nos. 2, 4 and 6, whenever accused No. 3 used to come to stay with them, she used to quarrel and used to go to her parental house and that she had soon after the marriage had also lodged a complaint against the deceased and his family members, about mental and physical harassment and demand of dowry. From the record it appears that the said matter was compromised and as per the terms of the said compromise, firstly, the deceased and his parents had to return all the articles given by accused No. 1 at the time of marriage of accused No. 3 with the deceased and secondly, the deceased was to be given a separate house and a shop at Sanchor so that he and accused No. 3 can reside together. According to P.W. Nos. 2, 4 and 6, though, the deceased and accused No. 3 were sent to reside at Sanchor, accused No. 3 did not stay there also for long and went back to her parental house after a few days, and hence, the deceased came back to reside with the complainant. It is pursuant to this that accused No. 3 came there, who was later on brought back to her parental house by her brother before 10-15 days prior to the alleged incident, and after going there accused No. 3 called the deceased at her parental house through her cousin, where the alleged incident took place.

In the above background, if, the evidence of P.W. Nos. 2, 4 and 6 are carefully perused, then, it is true that they have not narrated, in so many words, the harassment meted out to the deceased by the accused persons. However, at the same time, we have to bear in mind, that P.W. Nos. 2, 4 and 6 come from rural area and they does not appear to be well-educated, and therefore, they might not be knowing as to how to exactly narrate the harassment meted out to the deceased by the accused, and therefore, this Court has to examine the allegations made by them against accused persons by way of their conduct.

Here, the note of the fact may be taken that the alleged incident took place within two years from the date of the marriage of the deceased with accused No. 3. From the record, it is clear that, at the time of marriage, the deceased used to reside with accused No. 3 in a joint family at Shivganj. However, within a few months of marriage, accused No. 3 lodged a complaint about harassment and demand of dowry against the deceased and others in connection with which the deceased came to be arrested and was later on enlarged on bail. Even, the deceased in his suicide note, Mark D-1 and D-3, has written that he was very much distressed on account of his in-laws, who had lodged a false complaint against him under Section 498(A) of the IPC. The deceased has further written, therein, that due to the above, his family was also distressed, though, there was no fault on his part. It appears that the matter under Section 498(A) was compromised due to intervention of the elders of both the families and the caste. As per the said compromise, the deceased and his parents returned the articles given by accused No. 1 to accused No. 3, at the time of her marriage with the deceased. Apart from that, as per the other condition of the said compromise, P.W.-2 made arrangements for a separate shop and house for the deceased at Sanchor so that the deceased and accused No. 3 can reside together. Thus, it is due to this condition of compromise put-up by the original accused Nos. 1 to 3 that the deceased was compelled to leave his family at Shivganj and had to go to reside at Sanchor. However, accused No. 3 did not stay for long with the deceased even at Sanchor and only after a few days, she again went back to her parental house, leaving the deceased alone. From the evidence of P.W. Nos. 2 and 4, it is clear that the business of the deceased as Sanchor was not doing well and he was having financial problems, and therefore, under such circumstances, accused No. 3 was expected to support the deceased by staying with her. However, she did not do the same and instead left the deceased alone at Sanchor and went to her parental house, and then, filed an application for maintenance against the deceased under Section 125 of the Cr.P.C.. In such circumstances, when the business of the deceased was not doing well and he was facing financial problems, the filing of application for maintenance against the deceased can be said to be adding insult to injury. P.W.-4, in his evidence, stated that whenever deceased used to go to bring accused No. 3 back, he used to be beaten-up by the accused persons and even, the accused used to hurled filthy abuses at him, under the influence of alcohol. These facts stand corroborated by the suicide note No. D-1 of the deceased, more particularly, line Nos. 9 and 10, thereof, wherein, he has written that when I go to the place of my in-laws they beat me up and hurl filthy abuses at me under the influence of alcohol. From the evidence of P.W.-12, who was handwriting expert, it stands established that the notes recovered from the dead-body were written by the deceased, himself, whereas from the evidence of P.W.-8 the panchnama of recovery of notes (Exhibit-41) stands established. It is an admitted position that the deceased had not gone to the place of his in-laws on his own, but, the accused No. 3 had called the deceased at Runi village through his cousin, where, the deceased is stated to have committed suicide. Thus, when the deceased was called and he committed suicide at the residence of the accused Nos. 1 to 3, it is incumbent upon them to explain the circumstances under which the alleged incident took place. However, the accused have offered no explanation about the same. The accused No. 3 does not seem to be well-educated and economically independent and she appears to be dependent on her parents, and therefore, looking to the socio-economical background of the accused persons, it cannot be believed that accused No. 3 would frequently quarreled with her husband, i.e. the deceased, and her in-laws without any support from her parents and the brother. This Court is, therefore, of the opinion that the trial Court committed a grave error in recording the acquittal of the accused persons and the order of the trial Court requires interference at the hands of this Court.

In above view of the matter, here, it would be relevant to refer to a recent decision of the Apex Court in Ashok Rai Vs. State of U.P. and Others, , wherein, while highlighting the principles which shall guide a Court while dealing with an appeal, observed as under in Paragraph-10;

"10. Several judgments of this Court have been cited on the principles which should guide the court while dealing with an appeal against the order of acquittal. The law is so well settled that it is not necessary to refer to those judgments. Suffice it to say that the appellate Court has to be very cautious while reversing an order of acquittal because order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view it should not be disturbed, because the appellate court feels that some other view is also possible. A perverse order of acquittal replete with gross errors of facts and law will have to be set aside to prevent miscarriage of justice, because just as the court has to give due weight to the presumption of innocence and see that innocent person is not sentenced, it is equally the duty of the court to see that the guilty do not escape punishment. Unless the appellate court finds the order of acquittal to be clearly unreasonable and is convinced that there are substantial and compelling reasons to interfere with it, it should not interfere with it. We will consider this case in the light of these principles." 28. Further, the apex Court in Anjanappa Vs. State of Karnataka, confirmed the order of the High Court, reversing the acquittal of the original accused passed by the trial Court. In that case, the appellant-original accused, who happened to be husband of the deceased and had married to her just four years before the alleged incident, demanded dowry and received Rs. 5,000/-, a motor-bike, one gold chain and clothes from the father of deceased at the time of marriage. Even, thereafter, the appellant continued to harass the deceased for bringing more dowry. On the date of the alleged incident also, there was a quarrel between the deceased and the appellant over the issue of transferring the property of the deceased in the name of the appellant and at that time, the appellant poured kerosene and set the deceased ablaze. At the hospital, before the Medical Officer, the deceased gave history of setting ablaze by her husband, i.e. the appellant, therein. Hence, the Medical Officer recorded the same informed police, whereupon, a Head Constable, P.W.-5, came to the hospital and recorded the statement of the deceased with the permission of the doctor, wherein, she recited the history given by her to Medical Officer. Then, the Medical Officer made an endorsement on the said statement. However, the parents of the deceased did not support her case, and therefore, the trial Court held that the deceased was not fit to give a statement and acquitted the original accused. In appeal, the High Court held that the case of the prosecution is duly established by the evidence of independent witnesses, i.e. the doctor and the head constable, who were examined as P.W. Nos. 4 and 5, respectively, and who deposed about dying declaration of the deceased implicating appellant.

In the instant case, the prosecution story gets support from the evidence of P.W. Nos. 2, 4 and 6 and stands corroborated by the suicide note Mark-D1 to D3 written by the deceased, himself. The trial Court was, hence, not justified in acquitting accused Nos. 1 to 3 of the charges leveled against them. Hence, Mr. Prajapati, learned Advocate for Mr. Rathod, learned Advocate for the original accused Nos. 1 to 3-respondents, herein, will keep their clients present before this Court on 09.02.2015 so as to hear them on the aspect of sentence. Hence, S.O. to 9th February, 2015.