State Of Gujarat vs Meraman Kara Mer & Ors

Ilesh J. Vora, J

Here is the Appeal by the State against the judgment and order of acquittal.

Being dissatisfied by the judgment and order passed by the learned Sessions Judge, Jamnagar passed in Sessions Case No.121 of 2002, dated 31.05.2003, acquitting the respondents from the offence under Sections 498A, 306, 304B read with Section 114 of the IPC, the State has preferred instant appeal under Section 378 of the Cr.P.C.

This Court has heard Mr. J.K. Shah, learned Additional Public Prosecutor and Mr. P.M. Lakhani, learned advocate for the respective parties.

Brief facts giving rise to file the present Appeal are that, the respondents accused were tried and prosecuted for the charge of cruelty, abetment of suicide and dowry death. The dead body of deceased Puriben, who happened to be wife of the respondent no. 1, was found in the well situated in the accuseds’ farm at village: Kanalus. The marriage span was 8 to 9 months. The time of death was between 27.03.2002 to 29.03.2002. The deceased and the respondent no. 1 at the time of incident, living separately from the family i.e. respondents. As per the prosecution case, the husband accused was harassing the deceased on the aspect of insufficient dowry and repeatedly asking the deceased to bring cash amount from his father – complainant PW-1. In such circumstances, in view of the continuous harassment meted out to her by the accused, she decided to end her life by jumping into the well of the farm. The missing complaint by the husband was being lodged. According to prosecution case, in the search process of the deceased, the PW-1 father saw the respondent accused at the well of the farm and after seeing him, the accused ran away. He suspected something and had carefully seen the well where he found the dead body of the deceased. The dead body was fished out by the village people. The Meghpar Police informed and accordingly, the case came to be registered as accidental death. The dead body was sent for postmortem and according to PM report, the cause of death was aspexia on account of drawing. The PW-1 lodged an FIR on 30.03.2002, inter-alia, alleging that, the deceased was subjected to harassment after the marriage and she was physically and mentally harassed on the aspect of insufficient dowry and there was a demand of cash amount from the husband and the husband having full support from the other family members i.e. in-laws and due to continuous harassment, the deceased committed suicide by jumping into the well. The accused after the registration of the offence, came to be arrested and upon due investigation of the case, they were chargesheeted. After committal of the case to the court of Sessions, the charges came to be framed against the accused, which they pleaded not guilty and claimed trial.

In the course of trial, the prosecution adduced the following oral as well as documentary evidence in support of its case:

Oral Evidence :

PW 1 – Exh.18

Parbat Vastabhai, Complainant

PW 2 – Exh.20

Devabhai Vastabhai Keshvala

PW 3 – Exh.21

Kariben Parbatbhai

PW 4 – Exh.22

Kasam Ismail

PW 5 – Exh.23

Mukesh Heerabhai Solanki

PW 6 – Exh.27

Harbham Bhikhabhai

PW 7 – Exh.28

Leeluben Mulubhai

PW 8 – Exh.29

Kantilal Virjibhai Dukhal

PW 9 – Exh.40

Likhalal Veljibhai Rajyguru

PW 10 – Exh.42

Dr. Sunil Bipinchandra Bhatt

PW 11 – Exh.45

Rajendrakumar Jayantilal Barot

Documentary evidence :

Exh.19

Police report given by accused regarding his

missing wife

Exh.24

Panchnama of place of offence

Exh.25

Panchnama of clothes of deceased

Exh.26

Inquest panchnama

Exh.30

Report given accused regarding finding of wife

body inside well

Exh.31

Meghpar Police station additional report

Exh.32

AD message to DYSP

Exh.33

Yadi for presence of Executive Magistrate

Exh.34

Yadi fo PM

Exh.35

PM yadi and police report

Exh.36

Receipt of handing over of body

Exh.39

Complaint

Exh.41

Station diary entry no.7 copy

Exh.43

PM Note

Exh.44

Forensic Medicine Short report

Exh.46

FSL Yadi

Exh.47

Certificate

Exh.48

List of articles Yadi

Exh.49

Receipt of articles by FSL

Exh.50

Covering letter

Exh.51

FSL Report

Exh.52

Serological report

Exh.53

Yadi to Judicial magistrate F.K. Lalpur

On conclusion of oral evidence, the trial Court recorded further statement of the accused as provided under Section 313 of the Code, wherein, the husband claimed that, he lodged missing complaint in the presence of his father-in-law and there is no custom in their community on the aspect of dowry and despite of this, the complainant being father of the deceased, due to his sentiment and emotional mindset, false criminal prosecution is being initiated against him and his family members. The other accused on the same line, put their defense. The sister-in-law, in addition to that, stated that she married prior to the incident and she does not have any connection with the alleged demand of dowry and harassment.

The learned Sessions Judge after appreciating and examining the oral as well as documentary evidence acquitted the accused herein for the offences with which they were charged, on the ground that, the allegation of demand of dowry is not proved and so far as cruelty is concerned, the oral evidence of the family members of the deceased is not sufficient to prove the guilt of the accused. So far as dowry death is concerned, the trial Court observed that, the essential ingredients of Section 304B are not proved and established.

In view of the aforesaid facts and circumstances, this acquittal appeal has been preferred by the State.

In the facts of the present case, the most of the witnesses are family members of the deceased i.e. father, mother, sister, uncle. There is no dispute about the span of marriage. The deceased died due to asphexia on account of drawing and her dead body found in the farm well, belonged to the accused Meraman. The deceased and the husband were living separately from his family. The witnesses namely PW-1 – Parvat Vasta, PW-2 Deva Keshwala, PW-3 Kaliben, PW-7 Liluben, have deposed against the accused – respondents, stating inter-alia that, deceased was subjected to harassment as there was constant demand of money. In such circumstances, we do not deem it fit to refer the entire testimonies of the witnesses.

Mr. J.K. Shah, learned Additional Public Prosecutor for the appellant – State assailing the judgment and order of acquittal, has submitted that the findings of acquittal are contrary to law and evidence on record and the findings recorded are palpably erroneous and based on the irrelevant material. The trial court failed to appreciate the facts that the death was occurred otherwise than under normal circumstances within 7 years of marriage and soon after the death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. It is boundant duty of the trial Court once the foundation facts of the offence is proved and established, the court shall have to presume that the alleged suicide was being abetted by the respondents accused. Thus, it seems that, the trial court in a mechanical manner, has failed to appreciate the evidence of the prosecution in its true prospective and therefore, the findings of the acquittal are seems to be contrary to the evidence on record and palpably wrong.

In such circumstances, as referred above, it has been submitted that while acquitting the respondents accused, the trial Court has discarded and ignored the truthful, reliable and acceptable evidence and as such, no cogent reasons being assigned while discarding such evidence. Therefore, it is submitted that the conclusion of acquittal recorded by the Trial Court is contrary to the evidence on record and upon erroneous understanding of law. Thus, it is prayed that the prosecution has succeeded in proving the charge against the respondents accused and the judgment and order of acquittal be set aside and accused may be convicted and sentenced for the offence as referred above.

Mr. P. M. Lakhani, learned advocate appearing for the respondents accused has submitted that the High Court in a case of Appeal against the acquittal, can interfere only when there are compelling substantial reasons for doing so and more particularly, the findings are without reasons and unreasonable and contrary to the evidence. In the facts of the present case, findings in respect of insufficient dowry and demand of further dowry after the marriage are based on the evidence on record, as there are general allegations of demand of cash amount and as per the version of defense witnesses in the Mer community, there is no custom to give dowry at the time of marriage to the daughter. Thus, the trial Court has rightly held that, the demand of dowry has not been established by the prosecution and the elements of cruelty is not established against the accused.

In such circumstances, referred to above, learned counsel appearing for the respondents accused, has submitted that the Trial Court while acquitting the accused has assigned cogent and sufficient reasons and therefore, the judgment of acquittal passed is well reasoned, legally sustainable and does not suffer any infirmity warranting interference by this Court.

Before proceeding to address the rival submissions, we would like to place on record the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the judgment of acquittal. The Appellate Court should bare in mind the presence of innocence of the accused and further that, the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner, where the other view of possible should be avoided, unless there are reasons for interference.

In the present case the issue falls for our consideration as to whether the trial Court was justified in acquitting the accused?

We have carefully examined the oral as well as documentary evidence and perused the findings of acquittal rendered by the Trial Court. In the facts of the present case, the deceased died due to aspexia on account of drawing. The question for consideration is whether the evidence adduced by the prosecution is sufficient to prove the charge for the offences punishable under Section 498A, 304B and 306 read with Section 114 of the Indian Penal Code?

In our opinion, the witnesses examined before the trial Court did not have specifically mentioned that on which date and time, the deceased was physically and mentally harassed by the husband on the aspect of demand of cash amount. The allegations of harassment seem to be general in nature. So far as demand of dowry is concerned, there is no custom in the community of the accused to give dowry at the time of marriage. In such circumstances, the foundational facts to prove the dowry death i.e. soon before the death, she was subjected to cruelty and harassment in connection with demand of dowry, has not been proved and established by adducing sufficient and admissible evidence against the accused. Unless and until, the foundational facts are proved, the question does not arise to invoke the presumption clause against the accused under Section 113A of the Evidence Act. The respondent nos. 2 to 5 were living separately and as such there is no any direct allegation that, they had demanded the dowry and on this count, the deceased was harassed by them physically and mentally. Thus, therefore, the view of the Trial Court as to the demand of dowry and harassment is possible and plausible view and the Trial Court while analyzing the evidence has assigned cogent and sound reasons while acquitting the accused and therefore, findings of acquittal are reasonable and based on the evidence on record and we do not find any perversity in the findings of acquittal so as to interfere. Thus, in our considered opinion, the Trial Court was justified in acquitting the accused and we are in complete agreement with the findings, ultimate conclusion and resultant order of acquittal recorded by the Court below and hence finds no reason to interfere with the same.

With the observations as aforesaid, the appeal is accordingly dismissed. The Registry is directed to send back the R & P to the Trial Court. Bail bonds are cancelled, if any, and surety is discharged.