Lilaben Chandrakantbhai Mochi & 1 Other(s) vs State Of Gujarat

PW-1,Dungar bhai Nanjibhai Parmar,Exh-17

PW-2,Javant bhai Kanjibhai Solanki,Exh-22

PW-3,"Akbar khan Hussain khan

Pathan",Exh-24

PW-4,"Ashwina ben Pravin bhai

Makwana",Exh-27

PW-5,"Dr. Vikran bhai Kalidas

Parghi",Exh-32

PW-6,"Ramkumar Jagat palsing

Rajput",Exh-82

PW-7,"Natwarsinh Daulatsinh

Jetavat",Exh-88

PW-8,"Pratapsinh Kotaliyabhia

Vasava",Exh-103

Vardhi received from Civil Hospital dated 26.5.2001,Exh-83,

Report of registration of crime dated 26.5.2001,Exh-84,

Inquest Panchnama,Exh-26,

Panchnama of scene of offence date 26.5.2001,Exh-86,

Panchnama of seizure of letter dated 26.6.2001,Exh-93,

Panchnama of physical condition of the accused dated

9.6.2001",Exh-89,

P.M.Note dated 26.5.2001,Exh-33,

Forwarding letter to FSL dated 26.5.2001,Exh-90,

Mudamal Receipt dated 26.5.2001,Exh-91,

Opinion of FSL dated 20.6.2001,Exh-92,

Natural handwriting of the deceased,"Exh-105 &

106",

Letter addressed to the handwriting expert by the Dy.

Police Commissioner",Exh-104,

Opinion of handwriting expert dated 18.10.2002,Exh-107,

Reasons for opinion,Exh-108,

Affidavits of the neighbours and the relatives as regards

natural handwritings",Exh-199,

same evidence, the other accused have been acquitted from the charges leveled against them. He has also submitted that prior to the incident, the",,

husband and wife were residing separately from the joint family and the present accused were not residing with them. He has submitted that the entire,,

prosecution case is based on the sole evidence of the complainant i.e. father of the deceased and evidence of child witness Ashwina. While referring,,

evidence of both these witnesses, learned advocate has submitted that the evidence are in the nature of hearsay so far as it relates to the evidence of",,

father and there are material contradictions in his evidence. He has also submitted that the child witness is projected as eye-witness by the prosecution,,

but on perusal of her evidence it clearly transpires that she is not trustworthy and for 40 days, she has kept silent and no fact has been narrated by the",,

child witness to the appellant regarding she being the eye-witness and seen the strangulation made by the accused and administering poison to the,,

deceased. He has also contended that as per the evidence of the father, after filing the complaint, the police has also recorded his statement twice.",,

According to the learned advocate Mr. Kharadi for the appellant-accused, in those statement the complainant has not made any whisper though on the",,

next date of the death of the deceased, the child witness Ashwina has informed him that she has seen the entire incident of strangulation of her",,

mother by the accused and administering of the poison to the deceased. Learned advocate Mr. Kharadi has also vehemently submitted that child,,

witness is tutored one and no reliance can be placed upon her evidence.,,

10.1 He has also contended that the deceased has wrote chit wherein she has specifically stated that due to her ill-health, she was fed-up of the life",,

and, therefore, she is committing suicide and there is hand writing expert’s opinion that those chits are written by the deceased and the hand",,

writing therein is of the deceased. According to the learned advocate for the appellant that this very fact has not been properly considered by the,,

learned trial Court and the impugned judgment of the trial Court convicting the present accused is based on the assumption and presumption and,,

conjectures.,,

10.2 He has also submitted that the marriage life of the parties was of 10 years. He has also contended that necessary medical papers have been,,

placed on record and defence witnesses have specifically stated in their evidence that the deceased was being properly taken care of by her husband.,,

He has also contended that the entire conviction is based on the sole testimony of the complainant i.e. father of the deceased. He has also contended,,

that the learned trial Court has not properly appreciated the evidence on record in its true perspective and has committed serious error of facts and,,

law. According to him, the impugned judgment convicting the present appellant-accused are not sustainable in the eyes of law and the same deserves",,

to be set-aside. Alternatively, he has submitted that if the Court comes to the conclusion that the conviction of the present accused is proper then the",,

sentence may be reduced upto the period which has been undergone by them. While relying upon the following decisions, he has prayed to allow the",,

present Appeal:,,

(1) State of Gujarat v. Bharatbhai Balubhai Lad and Ors, reported in 2006 (1) G.L.H. 718;",,

(2) Subhashbhai Chandubhai Patel v. State of Gujarat, reported in 2006(3) G.L.H 724;",,

 (3) State of Gujarat v. Yogeshbhai Labhshanker Joshi, reported in 2017 (2) GLR 1621.",,

Per contra, learned APP Ms. Jirga Jhaveri for the State has vehemently submitted that the learned trial Court has properly appreciated the entire",,

facts and circumstances of the case and has given cogent reason for convicting the present accused. She has, while referring the evidence on record,",,

has submitted that the specific averment has been made in the complaint regarding the cruelty and the fact of the incident is duly corroborated by the,,

eyewitness who is a child witness. According to her submission, the neighbours may not be knowing anything about what is happening in the four",,

corners of the marriage life of the deceased with her husband. While referring the impugned judgment and evidence on record, the learned AGP Ms.",,

Jirga Jhaveri has also vehemently submitted that the prosecution has been able to prove the charges against the accused beyond reasonable doubt.,,

She has also contended that earlier also in the year 1999, there was incident of consumption of poison by the deceased due to cruelty meted out to her",,

in her matrimonial home. According to her submission, this fact is also required to be taken into consideration while appreciating the evidence on",,

record and even if there is compromise between the parties regarding the said incident, even in that case, the fact remains that there was cruelty",,

meted out to the deceased in the past also and the conduct of the accused is also required to be taken into consideration. She has also submitted that,,

the accused side has put up a story that the deceased has consumed poison and, therefore, on that basis the complainant has narrated this fact in his",,

complaint. However, no poisonous substance was found from the FSL Report. According to her version, even if poison is not found then in that case",,

also, considering the medical evidence which is in nature of the Postmortem of the body of the deceased, it clearly reveals that there is a mark on her",,

throat which suggest that she has died due to strangulation. She has also submitted that it is the accused who can say as to how the strangulation,,

marks over the throat of the deceased was formed. She has stated that learned trial Court has not committed any error of facts and law and,",,

therefore, the impugned judgment may not be interfered with and the same be confirmed. She has prayed to dismiss the present Appeal.",,

11.1 Regarding the decisions relied upon by the accused side, learned APP Ms. Jirga Jhaveri for the prosecution State has vehemently stated that the",,

facts of these judgments are different from the facts of present case and, therefore, the decisions relied on by the accused side are not applicable to",,

the facts of the present case.,,

It is well settled by catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which",,

the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the",,

accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be",,

presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption",,

of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.",,

Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of",,

acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not",,

ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived,,

at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse.",,

Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court",,

below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is",,

perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court,",,

in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the",,

accused is connected with the commission of the crime with which he is charged.,,

In the case of State of Gujarat v. Bharatbhai Balubhai Lad and Ors (Supra), the Division Bench of this Court has observed and held as under:",,

“12.It is settled principles of law so far as Section 498-A IPC is concerned that to constitute an offence of cruelty as explained under Section 498-,,

A of IPC, willful conduct which is of such a nature as is likely to drive the woman to commit the suicide should be cogently established to hold the",,

accused persons guilty of the said offence. In the instant case, there was no demand for dowry nor abetment of suicide nor cruelty to the deceased is",,

established. Some unhappy note / incident during the short married life between the husband and the wife cannot be the circumstance to constitute an,,

offence of cruelty or harassment within the meaning of Section 498-A IPC.,,

The law so far as Section 498-A IPC is concerned needs to be examined considering the following two decisions of the Supreme Court :-,,

(i) Gananath Patnayak Vs. State of Orissa â€" 2002 SCC (Criminal) 461.,,

(ii) Inderpal Vs. State of M.P. - 2002 Cri.L.J.926.,,

The ratio of both the decisions is to the effect that all the statements made by the deceased to her family members regarding the alleged,,

harassment and cruelty meted towards her would fall within the purview of hearsay evidence. It is an admitted fact that none of the witnesses,,

examined by the prosecution have said that they have with their eyes seen the accused persons assaulting the deceased or treating her with cruelty.,,

All the witnesses have deposed on the strength of the information which the deceased used to provide when she used to come at her parental home.,,

Such a statement is not admissible in evidence for the offence punishable under Section 498-A of IPC and has to be termed as being only a hearsay,,

evidence.,,

Section 32 of the Evidence Act is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating",,

to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall,,

within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused persons for the offence",,

punishable under Section 498-A of IPC.,,

In case of Subhashbhai Chandubhai Patel v. State of Gujarat (Supra), it appears that the above view has been reiterated.",,

In the case of State of Gujarat v. Yogeshbhai Labhshanker Joshi (Supra), the Court observed that when the early evidence relied upon by the",,

witness on the strength of the early statement made by the deceased is in the nature of the hearsay the same cannot be relied upon.,,

Having considered the contention of both the sides and perusing the decisions cited at bar as well as material placed on record and the impugned,,

judgment, it is crystal clear that the entire case of the prosecution is based on the evidence of complainant i.e. father of the deceased and purported",,

child witness namely Ashwina. Further, as observed hereinabove, the present accused have been acquitted from the charges under Section 306 and",,

302 of the IPC. They have been convicted under Section 498A only and, therefore, the evidence suggesting the involvement of the present accused",,

for commission of the offence under Section 498A only is required to be considered, especially when they are acquitted under Section 306, 302 has",,

not been challenged by the prosecution by filing the cross Appeal. On perusal of the evidence of father namely Dungarbhai Nanjibhai Parmar, PW-1,",,

at Exh- 17, it revealed that while narrating the relationship between the parties and the marriage life of his late daughter Kantaben with accused no.2,",,

he has stated that initially his daughter was residing in joint family and thereafter one year prior to the incident, her daughter and sister-in-law were",,

residing separately from the joint family. He has stated that for 2 to 3 years the marriage life was smooth and thereafter there was quarrel in the,,

family and due to that the deceased used to come to his house and was sending her back to her matrimonial home. He has also stated that the in-laws,,

were doubting her chastity and this fact was narrated by the daughter to him and family members and thereafter, the deceased was persuaded to go",,

to her matrimonial home. He has also stated that due to harassment of the in-laws, his daughter has consumed poison in 1999 and for that complaint",,

was lodged against in-laws and thereafter at the instance of the head of the community, compromise was arrived at and the in-laws had given in",,

writing that they will behave properly with the deceased.,,

18.1 He has stated that the incident has happened on 26.5.2001 and his relative from Vadaj had telephonically informed him that his daughter has,,

consumed poison and she is admitted in Civil Hospital and therefore, he went straight way to the Civil Hospital. He has stated that at the hospital he",,

saw his daughter and tried to call her but she didn't reply and ultimately she died at 11 - 11.15 hours in the morning and at that time blood was oozing,,

from her mouth. He has stated that, therefore, he has filed complaint against the accused.",,

18.2 During his cross-examination, he has admitted that the marriage life of her daughter was of 10 years and his daughter used to take money from",,

him for her medical treatment. He has denied the suggestion that the deceased was suffering from many serious diseases and, therefore, she has",,

committed suicide. He has denied the suggestion that in the earlier case, the accused are acquitted by the Court. He has stated that he has not",,

informed any elder person of the community regarding the doubting of chastity of the deceased by the accused. He has also stated that her in-laws,,

were telling for household work to the deceased and according to their community, this is cruelty. According to his version, whenever his daughter",,

went outside even for purchasing of vegetables or for grinding corns and if she is late by 5 minutes, the in- laws were making inquiry and were",,

quarreling with his daughter. He has stated that this is the cruelty meted out to his daughter. He has admitted that on such occasion he was not,,

present however, he voluntarily stated that his daughter was telling these facts to him. He has stated that at the time of meeting of the community, all",,

these facts were discussed. He has also admitted that the fact of delay of 5 minutes and making quarrel with her daughter by the in-laws has not been,,

narrated before the Police. According to him, the Police has inquired from him regarding the poison being consumed by his daughter but nothing was",,

written down by the Police. He has admitted that the information regarding consumption of poison by his daughter was given to him by his near,,

relative. He has stated that when his daughter was alive, at about 9.00 am to 9.30 a.m. Police met him and his complaint was recorded. He has stated",,

that Narsinhbhai is his near relative and is residing nearby.,,

18.3 When the question asked by the accused side that when did he came to know as to the fact of how his daughter has died, he has stated that after",,

cremation, when they went to their house, the daughter of the deceased had told him that her mother has been murdered and at that time Ashwina had",,

given name of the accused. He has stated that he cannot say as to whether his late daughter was sensitive or not however, he admitted that the",,

deceased was his pet daughter. He has also admitted the fact that on 29.5.2001 and 4.6.2001, the Police had called him and his statement was",,

recorded. According to him, he has given statement after due consideration. He has admitted that he has not concealed any facts from the police as",,

well as in the Court. He has stated that the statement of Ashwina was recorded after,,

15 to 20 days and the same was recorded at his instance and at that time he was present. He has stated that he has not stated before the Police the,,

fact that whenever deceased came late, the accused were quarreling with her.",,

18.4 Thus, on perusal of his evidence, it clearly transpires that he has not narrated the facts of quarreling by the accused with the deceased when the",,

deceased came late. It also reveals from his evidence that child witness Ashwina, as alleged by him, informed him on the next day of the death of the",,

deceased that the deceased was beaten by the accused at late night and was strangulated, and yet he has not narrated this very fact in his two other",,

statements recorded on 29.5.2001 and 4.6.2001. It also appears from the evidence that statement of the child witness was recorded after,,

14 days and he was present at that time during recording of her statement. Further, it also reveals from the evidence that there was compromise",,

between the parties for the earlier FIR filed and since last one year deceased was residing with her husband, separately from her in-laws. It also",,

reveals from his evidence that as per their community, if something is told to daughter in her matrimonial home regarding her day-to-day work, then, it",,

is assumed as cruelty. It also reveals from his evidence coupled with the perusal of the FIR that his relative Narsinhbhai had told him that the,,

deceased had consumed poison. Thus, version of this witness, as made in the FIR, clearly shows that Narsinhbhai has told him these facts. On perusal",,

of his entire evidence on record, it appears that he has made improvement in his evidence and narrated the extra facts which were not mentioned in",,

the FIR and his statement. His evidence is not trustworthy and reliable as the factum of beating by the accused on late night to the deceased and,,

strangulating her and putting poison in her mouth was stated to him by witness Ashwina on the very next day. However, he did not even cared to",,

narrate this fact in his two statements alleged to have been recorded on 29.5.2001 and 4.6.2001.,,

The other material witness is child witness namely Ashwinaben Pravinbhai Makwana, PW-4, at Exh-27. She has stated that her father resides at",,

Juna Vadaj and her matrimonial uncle's house is at Saraspur. She has stated that before one day of the incident, she was brought from her matrimonial",,

uncle's home to his parental home. She has stated that the incident had happened on 26.5.2001 and on that day her mother had distributed mangoes in,,

the street. She has stated that at that time Paljidada, who is her mother's uncle-in-law, has used filthy language against the deceased and it was in the",,

evening time. She has stated that after watching movie, her elder uncle Sikhabapu, Kanabapu, Grand-mother, paternal sister-in-law, had beaten her",,

mother and throttled her throat and fist blow was given and thereafter her grand-father had administer medicine in her mouth. She has also stated that,,

thereafter they have brought her mother to the hospital. She has stated that police has not inquired her.,,

19.1 During her cross-examination, she has admitted that all the above facts have not been narrated to anybody and she is telling this fact for the first",,

time. It also reveals from her evidence that even in chief-examination she has not stated regarding any harassment or cruelty being meted out to her,,

deceased mother by the present accused. At this juncture, it is pertinent to note that it is not the case of the prosecution that grand-father has",,

administered poisonous medicine or any other accused have throttled her throat. On reading of her entire evidence, it clearly transpires that though her",,

statement was recorded by the Police and she completely dis-owned the fact of her inquiry by the Police personnel. It is also pertinent to note that,,

when we compare the evidence of the complainant with this child witness, it clearly mtranspires that the fact of beating as well as administering of the",,

poisonous medicine by grand- father, are not narrated by the complainant and there is contradictions in the version of both the witnesses. In her cross-",,

examination, on behalf of accused no.6, she has stated that she did not know that the police personnel came after 15 days to record the statement of",,

the neighbours.,,

19.2 It is pertinent to note that the child witness has stated that on the night of the incident,she didn't slept with her father, her grandfather, her paternal",,

aunty and their children, but slept with her mother.",,

On perusal of evidence of Dr. Vikram Kalidas Parghi, PW-5, at Exh-32, it appears that he has performed Postmortem of the dead body of the",,

deceased and he has opined that cause of death was due to cardio respiratory failure after strangulation. Thus, the factum of unnatural death of the",,

deceased is proved. However, as the learned trial Court has acquitted the accused from the charge under Section 302/ 306 of the IPC and no appeal",,

against that acquittal has been filed, there is no need to scrutinise the evidence with regard to murder or instigation to commit suicide by the deceased.",,

On perusal of the entire evidence on record, it also transpires that the prosecution has seized certain letters and chits alleged to have been written",,

by the deceased vide Panchnama and seizure of letter dated 6.6.2001 at Exh-93 and natural writing of the deceased at Exh-105 and Exh-106. All,,

these documents were sent to handwriting expert, who in turn has, vide Exh-107 opined that the handwriting of the letter seized through the",,

Panchnama are written by the deceased. On perusal of those letters, it clearly transpires that she has narrated her entire agony as to her suffering",,

from many diseases and of taking medicines and the poor condition of her husband as well as her parents. Of course, in such letters, she has",,

submitted that no case be filed against her in-laws and she will take revenge at her own. She has also addressed her husband and expressed her,,

desire that her husband should not marry with any other lady. According to these letters, the deceased was tired of her life due to suffering from so",,

many diseases in her body. The defence has mainly relied upon this document. Now, in view of the facts that all the letters which were sent to FSL, it",,

proves that the letters which were seized under Panchnama at Exh-93, can be considered to be dying declaration of the deceased as in the present",,

case, her death comes under question. Therefore, the factum narrated in these letters cannot be brushed aside.",,

It is pertinent to note that as per the evidence of the complainant, according to him as per their community, even if anything is told to a daughter in",,

her matrimonial home regarding day- to-day work, then the same amounts to cruelty.",,

However, in the present case, except the earlier filing of complaint, no other evidence is produced on record by the prosecution. The evidence of the",,

father is based on the hearsay evidence, against which there are letters which can be treated as dying declaration of the deceased, expressing her",,

agony for suffering from many diseases and it is also pertinent to note that the deceased and her husband were residing separately from deceased in-,,

laws. Of course, they were residing adjacent as per the Panchnama of the scene of offence at Exh-86, but that fact itself is not sufficient to convict",,

the present accused with the alleged harassment by them to the deceased. Moreover, when child witness has not stated anything regarding past",,

cruelty, and the fact that she has immediately on the next day informed the complainant regarding beating to her mother by the accused side and",,

strangulating her and administering poison to the deceased and yet the complainant has not mentioned this fact in his subsequent two statements,,

recorded at 29.5.2001 and 4.6.2001, clearly suggest that the statement of the child witness has been created after passing of almost 14 days. The",,

earlier episode on which the prosecution is relying, cannot be taken into consideration as, as per the version of the complainant himself, compromise",,

was arrived at and thereafter husband and wife were separated from joint family.,,

On perusal of the impugned judgment, it appears that the learned trial Court has not considered the aforesaid aspect of the matter and has mainly",,

based on the facts of previous litigation and the factum of narration by the child witness, but on re-appreciating the evidence on record, it clearly",,

transpires that there is no iota of evidence to connect the present accused with the offence punishable under Section 498(A), therefore, the present",,

appeal qua these 2 accused-appellants is required to be allowed and the impugned judgment of the learned trial Court passed by the learned Additional,,

Sessions Judge, Court No.8, Ahmedabad in Sessions Case No.233 of 2001 is required to be quashed and set-aside qua these two appellants.",,

In view of the above, the present Appeal is hereby allowed. The impugned judgment dated 4.3.2004 passed by the learned Additional Sessions",,

Judge, Court No.8, Ahmedabad in Sessions Case No.233 of 2001, convicting the present two accused under Section 498(A) of the IPC, is hereby",,

quashed and set-aside. Both the accused are acquitted from the charges levelled against them under Section 498A of IPC. Fine, if any paid, be",,

refunded to them. Bail bonds stand cancelled. R&P to be sent back to the trial Court forthwith.,,