2020 Supreme(Guj) 502

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Mahesh @ Munno Chhaganbhai Jethwa & other – Appellants
Versus
The State Of Gujarat – Respondent
R/Criminal Appeal No. 233 of 2005
Decided on : 22-06-2020

Point of Law:
The demand of dowry is an essential ingredient to attract section 304-B IPC, whereas under section 498-A IPC the demand of dowry is not the basic ingredient of the offence. Therefore, even if there is acquittal under section 304-B IPC, still conviction under section 498A can be recorded under the law.

Headnote:

Criminal Law – Criminal Trial – Criminal Procedure Code, 1973 – Sections 313 and 374 – Indian Penal Code, 1860 – Sections 498 (A) and 306 – Offence of Cruelty and Suicide – Appeal against conviction – Alleged that they used to taunt her and were saying that you did not bring anything in dowry. Accordingly, the accused were causing physical and mental harassment to the deceased. It is alleged by the prosecution that she consumed acid and by pouring kerosene over her body, committed suicide – Held, It appears that Trial Court based it’s finding on assumption, presumption and conjectures. It appears from the judgment that learned trial Court has not considered the evidence in proper perspective as nothing is disclosed in further statement under Section 313 of Code of Criminal Procedure, regarding the letters as well as allegations regarding doubting chastity of the deceased. On perusal of the further statement of three accused, it clearly transpires that they have specifically stated in their further statement that no letters or papers were got prepared forcibly by the accused nor accused no.1 has doubted the chastity of his wife. It appears that learned trial Judge has not read entire further statement of the accused. Of course, learned trial Judge has made observations philosophically regarding demand of dowry and cruelty but it is of paramount importance for the prosecution to lead evidence on touchstone to prove case beyond reasonable doubt. There must be legal and valid evidence on record to convict the accused. Now, in this case, as observed herein above, witnesses examined by the prosecution are not reliable and trustworthy – It clearly transpires that there is no cogent, reliable and trustworthy evidence regarding demand of dowry as well as cruelty to the deceased by the accused. The evidence on record is not cogent and reliable and, therefore, on the evidence available on record, no conviction could be made either under Section 498-(A) or under Section 306 of IPC – Impugned judgment of the trial Court is not sustainable in the eyes of law and the same deserves to be quashed and set aside – Impugned judgment and order quashed and set aside – Appellants-accused acquitted of all charges levelled against them – Appeal is allowed. (Paras 19, 22 and 23)

Facts of the case:

Case of the prosecution in short is that accused no.1 is husband of deceased and accused nos.2 and 3 are father-in-law and mother-in-law of deceased. Accused no.1 had married the deceased – Case of the prosecution that the accused were having doubt over the character of the deceased. It is also alleged that they used to taunt her and were saying that you did not bring anything in dowry. Accordingly, the accused were causing physical and mental harassment to the deceased. It is alleged by the prosecution that she consumed acid and by pouring kerosene over her body, committed suicide. With these allegations, complaint was lodged by the complainant before Talala Police and on the basis of such complaint, police started investigation. The case was registered as I-C.R.No.62/2003 and as there was sufficient evidence against the accused, the accused were arrested and charge sheet came to be filed against the accused in the Court of learned Magistrate for the offences punishable under Sections 498 (A), 306 and 114 of the Indian Penal Code. As case was sessions triable, same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.

Findings of the court:

It appears that Trial Court based it’s finding on assumption, presumption and conjectures. It appears from the judgment that learned trial Court has not considered the evidence in proper perspective as nothing is disclosed in further statement under Section 313 of Code of Criminal Procedure, regarding the letters as well as allegations regarding doubting chastity of the deceased. On perusal of the further statement of three accused, it clearly transpires that they have specifically stated in their further statement that no letters or papers were got prepared forcibly by the accused nor accused no.1 has doubted the chastity of his wife. It appears that learned trial Judge has not read entire further statement of the accused. Of course, learned trial Judge has made observations philosophically regarding demand of dowry and cruelty but it is of paramount importance for the prosecution to lead evidence on the touchstone to prove the case beyond reasonable doubt. There must be legal and valid evidence on record to convict the accused. Now, in this case, as observed herein above, the witnesses examined by the prosecution are not reliable and trustworthy. Under these circumstances, the impugned judgment of the trial Court is not sustainable in the eyes of law and the same deserves to be quashed and set aside – Impugned judgment and order quashed and set aside – Appellants-accused acquitted of all charges levelled against them.

Result: Appeal is allowed.