State Of Gujarat vs Govindbhai Nagajibhai Asari

R.P.Dholaria, J

The appellant â€" State of Gujarat has preferred the present appeal under Section 378(1)(3) of the Code of Criminal Procedure against judgment

and order dated 28.11.2008 passed by learned Additional Sessions Judge and 4th Fast Track Court, Himmatnagar camp at Idar in Sessions Case No.

180 of 2006, acquitting the respondent accused for the offence punishable Sections 306, 498(A) and 201of the Indian Penal Code.

As per the prosecution case, since the deceased was not bearing child though there was a long-standing married life, she was being harassed and

treated with cruelty by the respondent accused, which led her to commit suicide. Thereby, the respondent accused committed an offence punishable

under Sections 306, 498A and 201 of the Indian Penal Code.

After registration of complaint, investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned

Magistrate. As the case was triable by learned Sessions Court, the same was committed to the Court of learned Sessions Judge. Thereafter, the

charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.

3.1 In order to bring home the charges against the accused, the prosecution examined the witnesses and produced the documentary evidence.

3.2 Thereafter, after filing of closing purshis by the prosecution, further statement of the accused under Section 313 of the Code of Criminal

Procedure, 1973 was recorded. The accused denied the case of the prosecution and submitted that a false case is filed against him.

3.3 At the conclusion of trial and after appreciating evidence on record, the learned trail court delivered the impugned judgment. Being aggrieved by

said judgment and order dated 28.11.2008 passed by learned Additional Sessions Judge and 4th Fast Track Court, Himmatnagar camp at Idar in

Sessions Case No. 180 of 2006 acquitting the respondent accused, the appellant â€" State of Gujarat has preferred the present appeal before this

Court.

Learned Additional Public Prosecutor Ms. Hansa Punani for the appellant â€" State of Gujarat has taken this Court through the entire record &

proceedings and read over the evidence of material witnesses. Learned APP has argued that the evidence of the complainant is fully getting support

and corroboration from the other evidence on record. Learned APP has further argued that as the deceased was not bearing child, the accused used

to harass and treat her with cruelty and that fact is also emerging out from the evidence of near relatives, which is totally overlooked by the learned

trial court. Learned APP has ultimately urged to convert the judgment of acquittal into conviction.

On the other hand, learned advocate Mr. Darshit Shah for the respondent accused has argued that at the place of incident, the complainant was

very much present and upon his verification, after death ceremony of the deceased was carried out. Learned advocate has further argued that as

there was no postmortem report, the cause of death is not at all emerging out on record nor in the inquest panchnama. Learned advocate has also

argued that as there was a long-standing married life of about 15 years and the deceased was not bearing child, she was under treatment, due to

which, she was vomiting and ultimately, she naturally died. Learned advocate has argued that the evidence of the complainant in light of clear

admission made in the cross-examination is clearly in the nature of hearsay and whatever he has stated in the complaint and deposed in the

examination-in-chief gets washed out from his cross-examination and no related evidence is available on record so as to link the respondent with the

crime in question. Learned advocate has also argued that the same fact is stated by the other near relatives in their evidence. Learned advocate has

ultimately argued that the learned trial court while delivering the judgment which runs into 51 pages, rightly dealt with the evidence on record, which

calls for no interference.

This Court has minutely gone through the entire record & proceedings, impugned judgment and order as well as evidence of material witnesses.

Prosecution witness No. 1 â€" Vikrambhai Rupsingbhai Bhagora â€" brother of the deceased deposed that he was serving in the Forest

Department. He deposed that the deceased was his sister and she had no child. He deposed that the accused got married with his sister prior to 15

years from the date of incident. He deposed that as and when his sister visited the parental home, she complained that the accused used to harass and

treat her with cruelty as she was not bearing child. In the cross-examination, he admitted that he also used to visit the house of the deceased where

the accused and the deceased were happily residing and were also treating him happily. Similarly, the deceased and the accused also used to visit his

house and they were exchanging the things. He deposed that on the day of incident, he saw the dead body and at that time, her sister â€" deceased

was not smelling any poisonous substance and the same was also the opinion of other people who gathered there. He also admitted that he had not

insisted for carrying out autopsy over the dead body of the deceased. It was left to the discretion of the complainant.

Prosecution witness No. 2 â€" Somabhai Kamjibhai Bhagora â€" son of brother of the complainant had not involved the accused as regards the

allegations of harassment and treating the deceased with cruelty.

Prosecution witness No. 3 â€" Madhubhai Savjibhai Bhagora deposed in the parallel lines as deposed by prosecution witness No.2.

Prosecution witness No.4 â€" Rupsingbhai Dhulabhai Bhagora â€" father of the deceased deposed her daughter â€" deceased got married with

the accused prior to 15 years from the date of incident and were residing together. He deposed that on the day of incident, the death of his daughter

was found to be suspicion and therefore, he insisted for carrying out autopsy. He deposed that his daughter was harassed and treated with cruelty by

the accused as she was not bearing child. In the cross-examination, he admitted that he had not stated before the police that he insisted for carrying

out autopsy over the dead body of the deceased.

Prosecution witness No.5 â€" Dahiben Rupsingbhai Bhagora â€" sister of the deceased deposed that her sister got married with the accused for

about 15 years prior to the date of incident and she was not bearing any child. She deposed that on 01.10.2006 i.e. on the day of incident, she visited

the place of incident and the dead body of her sister was found to be suspicion. She deposed that she suspected that as she was not bearing child for

about 15 years, she was treated with cruelty and harassment by the accused. She admitted in the cross-examination that she had not stated before the

police that she insisted for carrying out autopsy over the dead body of the deceased.

The record & proceedings clearly indicates that on 01.10.2006, the deceased was found to be dead and such information was transmitted to all

near relatives of the deceased including the parents of the deceased and they had examined her body. Though factually it was suspected that she

consumed poisonous substance and committed suicide, it was not found to be true as neither her face nor her body was smelling any poisonous

substance. Consequently therefore, as per the say of the complainant and other relatives, her death was found to be natural. It was apprised to the

complainant and other relatives that as to whether her dead body would be required to be sent for postmortem report or not. At that time, none of the

persons from the complainant's side had insisted or showed desire to send her dead body for postmortem. In view of aforesaid nature of evidence, the

learned trial court has rightly recorded a finding that nothing is emerging out on record so as to record a finding that the deceased committed suicide as

a result of instigation or inducement meted out to her by the accused.

So far as other aspects of the matter as regards the harassment and cruelty to the deceased are concerned, as she was not bearing child in long-

standing married life of 15 years, isolated version of her near relatives is emerging out that as and when she visited parental home, she apprised them

that the accused was harassing her and treating her with cruelty as she was not bearing child. Indisputably, no sort of specific detail as regards

harassment or treating her with cruelty is supplied by any of them in their depositions or even before the police. On the contrary, in the cross-

examination, all of them have admitted that the deceased used to visit the parental home 4-5 times in a month and was happily residing with her

husband. Similarly, the complainant and other near relatives used to visit the home of the deceased where she was happily residing with the

respondent accused.

In view of aforesaid nature of evidence, it would be hazardous to believe the hearsay testimony which is quite contrary to the version emerging out

in the cross-examination. In that view of the matter, the learned trial court has rightly recorded a finding that the prosecution miserably failed to

establish any sort of harassment upon the person of the deceased by the accused.

For the reasons recorded above, the appeal being devoid of merits deserves dismissal and is dismissed.

The record & proceedings be sent back to the concerned trial court forthwith.