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2020 Supreme(Guj) 277
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Kailashchandra Bansilal Joshi – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 704 of 2002
Decided On : 02-06-2020
Advocate Appeared:
For the Appellants : Mr. Gautam H. Gadhavi, Mr. Y.H. Motiramani.
For the Respondent: Ms. Jirga Jhaveri.
Point of Law:
Ligative mark over neck above thyroid cartilage on both side of neck. On Rt. Side - 13 cm from midline of neck going laterally, backwards, upwards ends behind ear at nape of neck. Widest 3 cm on it. Side 12 cm from midline and tapering gradually. It ends at mastoid process. Widest 1.5 cm ligature is more deep on Rt. Side than on Lt. Side. Groove is pouchment like Red-purple in colour.
Headnote:
Criminal Procedure Code, 1973 - Section 374 - Indian Penal Code - Sections 306 and 498A - Appellant-original accused has preferred this appeal against judgment and order has been convicted for offences punishable said offence respectively in default to sentence for further rigorous imprisonment for months respectively - Prosecution that one complaint was filed by who is a brother of deceased - Allegations complainant-brother of deceased filed complaint and same was registered for offence punishable against accused - After closure of evidence statements of alleged offence - Held, Court reflected in that judgment that seeking financial assistance would not per se constitute demand for dowry has been rejected by a later judgment of a three Judge Bench of this Court in case - Upon considering case of certain other authorities was held in case has been said by these two decisions - Days or months are not what is to be seen - What must be borne in mind is that word soon does not mean immediate - A fair and pragmatic construction keeping in mind great social evil that has led to enactment of would make it clear that expression is a relative expression - Time lags may differ from case to case - All that is necessary is that demand for dowry should not be stale but should be continuing cause for death of married woman - Court decisions relied upon by advocate are same for appellant on legal aspects as to when accused can be convicted - Court appears that the learned Trial Court has not considered the evidence on record in proper perspective and has committed error of facts and law - Impugned judgment of Trial Court is not sustainable in eyes of law - Appeal allowed (Paras 23 and 40)
Facts of the Case:
It is alleged that Mamtaben Kailashchandra Joshi D/o Bhanvariben Ramkishan (deceased) and the present accused - Kailashchandra Bansilal Joshi had married on 07.03.1988. Accused No. 2 - Jagdishchandra Nandlal Vyas happened to be uncle-in-law of deceased Mamtaben. Accused No. 3 - Sundarben is the mother-in-law and accused No. 4 - Bansilal Gokulchandji Joshi is father-in-law respectively of deceased Mamtaben. Accused No. 5 - Indiraben and accused No. 8 - Manjuben Omprakash Shambhulal Upadhyaya are the sisters-in-law of deceased Mamtaben. Accused No. 6 - Omprakash Bansilal and accused No. 7 - Omprakash Shambhulal are brothers-in-law of deceased Mamtaben.
Finding of the Court:
Court reflected in that judgment that seeking financial assistance would not per se constitute demand for dowry has been rejected by a later judgment of a three Judge Bench of this Court in case - Upon considering case of certain other authorities was held in case has been said by these two decisions - Days or months are not what is to be seen - What must be borne in mind is that word soon does not mean immediate - A fair and pragmatic construction keeping in mind great social evil that has led to enactment of would make it clear that expression is a relative expression - Time lags may differ from case to case - All that is necessary is that demand for dowry should not be stale but should be continuing cause for death of married woman - Court decisions relied upon by advocate are same for appellant on legal aspects as to when accused can be convicted - Court appears that the learned Trial Court has not considered the evidence on record in proper perspective and has committed error of facts and law - Impugned judgment of Trial Court is not sustainable in eyes of law.
Result: Appeal allowed
JUDGMENT :
A.P. THAKER, J.
1. The appellant-original accused has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 20.08.2002 passed by the learned City Sessions Judge, Court No. 1, Ahmedabad (hereinafter be referred to as “the Trial Court”) in Sessions Case No. 267 of 2000, whereby, he has been convicted for the offences punishable under Sections 306 and 498A of the Indian Penal Code (hereinafter be referred to as “the IPC”) and sentenced him to undergo rigorous imprisonment for five years and one year respectively for each offence and a fine of Rs. 1,000/- and Rs. 500/- for the said offence respectively, in default, to undergo sentence for further rigorous imprisonment for three months and one month respectively. Both the sentences ordered to run concurrently.
2. Brief facts of the prosecution case are as under.
2.1 It is alleged that Mamtaben Kailashchandra Joshi D/o Bhanvariben Ramkishan (deceased) and the present accused - Kailashchandra Bansilal Joshi had married on 07.03.1988. Accused No. 2 - Jagdishchandra Nandlal Vyas happened to be uncle-in-law of deceased Mamtaben. Accused No. 3 - Sundarben is the mother-in-law and accused No. 4 - Bansilal Gokulchandji Joshi is father-in-law respectively of deceased Mamtaben. Accused No. 5 - Indiraben and accused No. 8 - Manjuben Omprakash Shambhulal Upadhyaya are the sisters-in-law of deceased Mamtaben. Accused No. 6 - Omprakash Bansilal and accused No. 7 - Omprakash Shambhulal are brothers-in-law of deceased Mamtaben. It is the case of the prosecution that the present accused - Kailashchandra (husband of deceased) and accused No. 5 - Indiraben Omprakash had illicit relationship. Therefore, the accused were harassing deceased Mamtaben. The accused were making demand of dowry from the deceased. It is also alleged by the prosecution that the accused killed Mamtaben at 3.00 am on 25.10.1998 in her house at Block No. 98/466, Gujarat Housing Board, Hatkeshvar, Ahmedabad. In the alternative, there is also a charge against the accused that the deceased committed suicide because of the harassment caused by the accused.
2.2 It is the case of the prosecution that one complaint was filed by Devilal Ramkishan Oza (Sharma), who is a brother of deceased-Mamtaben on 27.10.1998 at about 22.00 hours before P.S.O. Amraiwadi Police Station, which was registered as C.R. No. I-698/1998.
2.3 Initially, on the aforesaid allegations, the complainant-brother of the deceased filed complaint and same was registered for the offence punishable under Sections 498A, 302, 120B and 34 of the IPC against the accused.
2.4 On registration of the FIR, the Investigating Officer has started investigation. During the investigation, all the accused were arrested and the Investigating Officer has recorded the statements of various witnesses and prepared necessary panchnama thereof and got necessary documentary evidence.
2.5 After completion of investigation, the police has filed charge-sheet before the concerned Metropolitan Magistrate for the alleged offences. Thereafter, as one of the offence was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No. 267 of 2000.
2.6 The charge against the accused came to be framed by the Trial Court, vide Exhibit 3 for the aforesaid offences. The accused pleaded not guilty to the charge and pleaded for trial.
3. To prove the case, the prosecution has examined the following witnesses:-
| 1. | Bhanvriben Ramkishan | Mother | Exh.23 |
| 2. | Naranlal Kisturchand Tiwari | Witness | Exh.24 |
| 3. | Hiralal Laluram | Witness | Exh.25 |
| 4. | Devilal Ramkishan Sharma | Brother | Exh.31 |
| 5. | Radheshyam Gopilal Pande | Panch Witness | Exh.43 |
| 6. | Sureshkumar | ||
