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2009(1) GCD 753(Guj)(DB)
Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice J.C. Upadhyaya
Rajesh @ Rameshbhai Manubhai Makwana [Kheda]
Versus
State of Gujarat
Criminal Appeal No. 807 of 2004—Decided on 26/11/2008
[Indian] Penal Code, 1860(Central Act 45 of 1860) — Sections 498-A & 306 — Evidence Act — Section 113-A — Abetment to suicide — Conviction — Appreciation of evidence — Finding as to — Sustainability — Prosecution case is that accused appellant was maintaining illicit relationship with one ‘G’ and for that purpose used to cause cruelty to his wife the deceased for which she consumed poisonous pesticide resulting in her death — Prosecution case mainly hangs on oral dying-declaration alleged to have been made by deceased before her brother — Court observed that it is a weak piece of evidence and except the statement of deceased brother, it is not corroborated from any other contemporaneous evidence — Even the Doctor to whom the deceased was taken on being ill rules out any such statement by deceased to her brother — The brother of the deceased who asserts that deceased made oral dying-declaration that she had consumed pesticide because of her harassment by her husband has not stated the nature of harassment caused to her by her husband — That apart if the certificate issued by Doctor is read together with the evidence of deceased brother it would be clear that certificate does not support statement of her brother — The prosecution has further failed to examine one ‘R’ who is alleged to have gone to deceased with her brother prosecution has instead examined his brother ‘P’ who says that deceased brother had not asked deceased anything about the cause of consuming pesticide — In the case span of marriage period was only six months but in the facts and circumstance no adverse inference can be drawn against the accused appellant — On the contrary it has come in evidence that accused deceased used to visit her brother without making any complaint of her harassment — Last but not the least the allegation of appellant maintaining illicit relation with one ‘G’ causing harassment to deceased is not proved beyond reasonable doubt — In the light of above evidence Court held that conviction of appellant can not be maintained for the alleged offences.
Held :
Dr. Bipin Vyas is examined at Exhibit 12. He is the doctor, to whom the deceased was taken on being ill. He has stated in his deposition that the deceased was brought to his hospital with a complaint of diarrhoea and vomiting and he gave treatment for the same initially. In later part, when froth came out of the mouth and nose of the deceased, he inquired about food-poisoning or consumption of any poisonous substance and the deceased refused to answer. When her condition worsened, he again vehemently asked the deceased and at that point of time, he was told by the deceased that she had consumed poisonous pesticide, commonly used for cultivation of cotton crop. He, therefore, immediately informed the police. He denies that the deceased made any dying declaration before her brother Bhikhabhai in his presence. [Para 7]
If the evidence of Bhikhabhai and the medical certificate are read together, it would be clear that the certificate, which is a contemporaneous record of an independent witness, maintained in the ordinary course of business, does not support the case of Bhikhabhai. Witness Bhikhabhai says that he had reached the place by 10.00 O’clock in the morning, whereas, the Doctor’s certificate says that only the in-laws and the husband of the deceased were present till 2.00 p.m., and the patient insisted on calling her parents. The Doctor has denied, in terms, in his deposition the presence of Bhikhabhai and the deceased having made oral dying declaration before him. The factum of oral dying declaration, therefore, becomes a matter of doubt. [Para 7.1]
The story of Bhikhabhai about the deceased having made oral dying declaration before him stating that she had consumed pesticide because of harassment by her husband, therefore, loses credence, because it does not get any support from any contemporaneous or independent evidence. The prosecution has also failed to adduce the evidence of Rajubhai, who could have supported the version of Bhikhabhai, because he was the person, who accompanied Bhikhabhai to the Hospital. Rajubhai is not examined, but, his brother Pravinbhai is examined at Exhibit 19. On reading his deposition, we find that he has stated in his deposition that he was informed by Bhikhabhai at about 3.00 P.M that Jyotikaben is admitted in a hospital at Anand. He, therefore, went to Anand hospital and found Jyotikaben dead. He says that Bhikhabhai had not asked deceased Jyotikaben anything about the cause for consuming pesticide. Remarkably, Pravinbhai is silent about the presence or absence of his brother Rajubhai. Had Rajubhai accompanied Bhikhabhai, he would have been there, and as per the case of Bhikhabhai, Rajubhai was with him. That story also, therefore, does not get any support or corroboration. All these factors taken collectively, would go to show that the prosecution has not been able to prove beyond reasonable doubt the factum that the deceased consumed poison because of the harassment by her husband, as is sought to be proved with the help of oral dying declaration. [Para 8]
It has come in the evidence of Bhikhabhai that during this span of six months, the deceased and the appellant used to come to his house frequently and till this, there was no dispute. It has also come in the evidence that the deceased had come to attend Savitaben, who had sustained fracture, just 15 days before the incident and stayed with them for about 10 days. [Para 10]
This aspect has to be viewed with the fact that though Bhikhabhai was present in the hospital when the police arrived at the time when the death occurred and at the time of cremation where also the police was present, first informant Bhikhabhai does not tell the police anything about any harassment or cruelty meted out by the appellant to the deceased or any illicit relationship with Gitaben maintained by the appellant, the cause for the deceased consuming poison. He does not even disclose the intention of lodging FIR, and suddenly on the next day, i.e. 10.10.2001 at about 2.00 p.m., he lodges the FIR. [Para 11]
Last but not the least, the allegation of the appellant maintaining illicit relationship with Gitaben is not proved beyond reasonable doubt. Interestingly, the investigating officer admits in his cross-examination that he has recorded the statement of Gitaben, who denied having any illicit relationship with the appellant. The Investigating Officer remained contented with that statement and made no further probe into the question of illicit relationship of the appellant with Gitaben, overlooking the fact that no lady would admit such an illicit relationship. The investigation, therefore, has not been made efficiently. Court rest at saying that the evidence about illicit relationship between the appellant and Gitaben is not reliable. It is a bare allegation of the appellant talking to Gitaben and the possibility of the deceased having imaginative idea of illicit relationship between them cannot be ruled out. [Para 12]
Law Laid Down :
Simply because the marriage span was less than seven years, provision of Section 113-A of Evidence Act could not be resorted to.
A.L. Dave, J.—The appellant was the accused before the Sessions Court, Kheda at Nadiad, in Sessions Case No. 60/2002 facing charges for the offences punishable under Sections 498-A & 306 of the Indian Penal Code. He was charged to have abetted the suicide of his wife Jyotikaben, which she committed on 09.10.2001 by consuming poison. F.I.R in this regard was lodged by Jyotikaben’s brother Bhikhabhai on 10.10.2001. The police having found sufficient material, filed charge-sheet in the Court of learned J.M.F.C., Anand, who, in turn, committed the case to the Court of Sessions and Sessions Case No. 60/2002 came to be registered. The charge against the accused was framed at Exhibit 5, to which, he pleaded not guilty and claimed to be tried.
2. The Sessions Court, after appreciating the evidence led by the prosecution, came to the conclusion that the prosecution was successful in proving the case against the accused for both the offences and recorded conviction of the accused-appellant for both the offences. The trial Court, by judgment and order dated 01.04.2004, sentenced the appellant to undergo R.I for three years and fine of Rs. 1000/-, in default to undergo S.I for three months, for the offence punishable under Section 498-A, IPC. For the offence punishable under Section 306, IPC, the trial Court sentenced the appellant to undergo R.I for ten years and to pay a fine of Rs. 1000/-, in default, to undergo S.I for six months. Both the sentences were ordered to run concurrently. Aggrieved by the said judgment and order, the present appeal is preferred.
3. We have heard learned advocate Mr. U.A. Trivedi for the appellant, and Mr. U.R. Bhatt, learned A.P.P., for the respondent-State.
4. Learned Advocate Mr. Trivedi for the appellant submitted that the trial Court has committed an error in appreciating the evidence. The allegation against the appellant, as per the prosecution case, was that he was maintaining illicit relationship with one Gitaben, and this aspect has not been proved by the prosecution at all. Mr. Trivedi submitted that so far as the cruelty aspect is concerned, the allegations are too general, non-specific and vague. The evidence in that regard is also inconsistent and scanty, which ought to have been considered by the trial Court. It was also submitted by Mr. Trivedi that the provisions of Section 113-A of the Indian Evidence Act could not have been resorted to in light of the above defect in the evidence, simply because the marriage span was of less than seven years. Mr. Trivedi submitted further that the case hangs, mainly, on oral dying declaration claimed to have been made by the deceased before his brother Bhikhabhai Chimanbhai. This aspect is stated by Bhikhabhai Chimanbhai in his deposition recorded at Exhibit 16, but, this weak piece of evidence, as it is, is not getting any corroboration from any other evidence. On the contrary, contemporaneous evidence rules out the possibility of such an oral dying declaration. Mr.Trivedi submitted that the medical certificate issued by Dr. Bipinbhai Vyas clearly indicates that till 2.00 O’clock Bhikhabhai was not present. On the other hand, Bhikhabhai claims to have reached the place at 10.00 O’clock in the morning. The condition of the deceased after 2.00 O’clock was very critical, as can be seen from the medical papers. The Doctor does not support the story of Bhikhabhai about the deceased having made oral dying declaration before him. Therefore, the evidence regarding cruelty and illicit relationship cannot be said to have been proved beyond reasonable doubt. The trial Court has overlooked this aspect and has recorded the conviction. The appeal may, therefore, be allowed.
5. Learned A.P.P. Mr. Bhatt has opposed this appeal. According to him, the evidence of Bhikhabhai Exhibit 16, coupled with the evidence of his wife Niruben, would go to show that the appellant was maintaining illicit relationship with Gitaben and for that purpose, used to cause cruelty to the d
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