2009 Supreme(Guj) 14

2009 (2) GCD 1589 (Guj) (DB)
Hon’ble Mr. Justice A.L. Dave &
Hon’ble Mr. Justice J.C. Upadhyaya
Nilesh Purshottambhai Bhanderi & Anr.
Versus
State of Gujarat
Criminal Appeal No. 120 of 20001—Decided on 21/01/2009

Point in Issue :
Whether prosecution has been able to prove the case against accused appellant beyond all reasonable doubts?

Headnote:Head Note :

       [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 304-B, 498-A and 360 — Dowry Prohibition Act — Sections 3 and 4 — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 397/401, 377 and 378 — [Indian] Evidence Act, 1872 — Section 113-B — Dowry death — Cruelty — Conviction — Finding as to — Sustainability — Deceased Hinaben was married to Accused No. 1 and Accused Nos. 2 and 3 were his parents — It is the case of prosecution that since the marriage accused used to demand dowry and deceased was meted out with physical and mental cruelty — She informed her parents when even she went to her parents house — It is further prosecution case is that on 05.07.1998 in the morning deceased informed her mother on telephone that she was being treated cruelty and she was tired of ill-treatment and that she was going to put an end to her life — She thereafter consumed poison and died in hospital — Considering the evidence and hearing the arguments Court acquitted the original Accused No. 3 but convicted Accused Nos. 1 and 2 husband and mother in law of deceased respectively — They were however acquitted of the offence under Section 306 IPC — There are appeals by convicts and appeals by State against acquittal and enhancement of sentence — Considering the medical evidence on record it is clear and there is no dispute about the fact that cause of death of deceased was consumption of poisonous drug like aluminium phosphate — Defence has raised only one dispute about it that deceased by mistake consumed the drug — Defence contention is unacceptable because there is no averment to that effect in the case history Exh. 23 recorded by Medical Officer Dr. Dave — This fact of consumption of poison by mistake does not find place even in telephonic conversation informing parent of deceased about the incident by father-in-law of deceased — Besides it nowhere transpires that Hina was sick and was taking medicine and in that background she by some mistake consumed the alleged poisons tablets — Under such circumstances while appreciating the evidence on record, Learned trial Court rightly concluded that deceased consumed poison to commit suicide — The deceased has alleged to end his life on account of cruelty and ill-treatment caused to her by her husband, mother-in-law and father-in-law — Considering entire prosecution evidence Court held that prosecution has successfully proved it’s case against Accused No. 2 mother-in-law of deceased who used to demand dowry and meted out physical and mental cruelty to deceased — So far as Accused No. 1 is concerned the evidence against him is general in nature and identical like the one against Accused No. 3 who is acquitted by trial Court under the circumstances Accused No. 1 also deserved to be acquitted — For the foregoing reasons conviction of appellant Accused No. 1 is set aside and State appeals against Accused No. 3 and for enhancement of sentence dismissed — Court however affirmed the conviction and sentenced awarded by trial Court to appellant Accused No. 2.

       Held :

       Court is of the considered opinion that the prosecution successfully proved its case against the accused No. 2 - Kanchanben, the mother-in-law of Hina. However, so far as the accused No. 1 - Nilesh is concerned, as stated above, the evidence adduced by the prosecution against him is general in nature and almost identical like the one adduced by the prosecution so far as original accused No. 3 Parshotambhai is concerned. Over and above this, as emerged from the above discussion, the conduct of the accused No. 1 is required to be considered in the sense that it was he who immediately removed Hina to hospital for immediate treatment along with the bottle of aluminium phosphate tablets. Under such circumstances, the trial Court should have given benefit of doubt to the accused No. 1 - Nilesh. [Para 23.2]

       Now in the instant case, the prosecution has successfully proved the proximity test. Moreover, in the instant case, soon before consumption of aluminium phosphate, Hina contacted her parents on telephone and expressed her desire to put end to her life. As discussed above, there is no evidence whatsoever to come to the conclusion that at the relevant time Hina was sick and was taking any medicine prescribed by any doctor and through oversight or by mistake she consumed the tablet of aluminium phosphate. [Para 24.3]

       However, so far as original accused No. 2 - Kanchanben Parshotambhai [Respondent No. 2 in said appeal] is concerned, while fixing the quantum of punishment, the trial Judge took into consideration the relevant aspects and exercised his discretionary powers in fixing the quantum of punishment. Considering the facts and circumstances of the case, Courts does not find any illegal or arbitrary exercise of discretionary powers on the part of the learned trial Judge while fixing the quantum of sentence in respect of offences for which the original accused No. 2 - Kanchanben came to be convicted. Sentence awarded by the learned trial Judge cannot be said to be either unduly harsh or unduly lenient.

        [Para 27]

       Law Laid Down :

       In absence of necessary ingredients with regard offence of dowry death the presumption under Section 113-B Evidence Act can not be attracted.