1) This appeal is directed against the judgment and order dated 28th June, 1996 passed by the learned Assistant Sessions Judge, Junagadh in Sessions Case No.4 of 1995.
2) The case of the prosecution is that one Harijan Harjivan Devjibhai Sankhat, resident of Simarvada had came to the Una Police Station at 8:30 in the morning on 24th September, 1994 and informed that his brother Mahendra Devji’s wife Bhanumati, whose marriage had taken place three years ago and was residing separately, had delivered a child two months prior thereto, was alone at home and had sustained burn injuries and expired. On the basis of such information, the P.S.O. of Una Police Station made an entry in the station diary under section 174 of the Code of Criminal Procedure, 1973. Thereafter, further investigation was handed over to Head Constable Khengarbhai Danabhai Parmar, who went to the scene of offence and drew the panchnama and seized the Muddamal. Later on Inquest Panchnama of the deceased was also drawn. The offence in question was a visitation offence and hence, the Divisional Police Officer was informed and he had taken over the investigation. The first informant, Bhagwanjibhai Lakhabhai, resident of Vadviyadi, lodged a complaint before the Divisional Police Officer Shri Ganeshsingh Subedarsingh on 25th September, 1994 alleging that he was residing at Vadviyala, taluka-Una and was doing the work of agricultural labour. His younger daughter Bhanu was married to Meghji @ Mahendra Deva of Simar village three years ago. After her marriage, his daughter Bhanu was residing at her matrimonial home and had two daughters. The elder daughter was approximately one and a half years old and the last delivery had taken place about a month prior to 25th September, 1994, on which occasion also, she had given birth to a daughter. After her marriage, time and again, his daughter used to visit them and lastly she had come in the month of Vaishakh. At that time, she had told the first informant’s younger brothers Bachu Lakha and Bhaya Lakha as well as both their wives and the first informant’s wife Maniben, that her husband Mahendra, her mother-in-law Kamuben and father-in-law Deva Aja used to tell her that if she gives birth to a daughter, they would subject her to harassment and would not let her live and after staying for about four to five days, his daughter went back to Simar at her matrimonial home. Thereafter, before the seventh or eighth day of the month of Shravan, his daughter Bhanu had given birth to a daughter and on the 6th day, his wife Maniben had gone to his daughter’s house and had stayed there for a night and on the next day when she returned home, she had told the first informant as well as both his brothers and their wives, that after their daughter gave birth to a female child, her husband, mother-in-law and father-in-law had started harassing her and they did not give her any food and that they were very displeased with the fact that Bhanu had given birth to a daughter and were asking her as to why she had not given birth to a son and that now they would not let her live and they would bring another wife for their son. That the first informant’s wife had informed the first informant about the aforesaid facts, however, he had thought that things would improve and did not pay much attention to it. On 24th September, 1994, in the morning at about 9:00 O’clock, one Dhanji Aatu of Simar came there with a note which was given by Devjibhai wherein it was written that Bhanuben’s health was not good and they were told to come to Simar immediately. The said note was shown to the family members of the first informant and, thereafter, the first informant, his wife Maniben and several others, namely, Devu Khoda, Govind Karshan and Kanu- the son of the complainant all went in a rickshaw to Simar village and reached there at about 1:00 O’clock. When they went to the house of their daughter’s in- laws, their son-in-law and his parents were present there and their daughter’s dead body was lying in a room. Upon seen the dead body, it was apparent that their daughter Bhanu had sustained burn injuries. The reason for the incident was that their daughter Bhanu, who already had one daughter, had given birth to another daughter and their son-in-law and his parents were harassing their daughter and instigated her to commit suicide by pouring kerosene on herself and setting herself on fire.
3) Pursuant to the aforesaid first information report, investigation came to be carried out and charge-sheet came to be submitted in the court of the learned Judicial Magistrate, First Class at Una. Thereafter, the case came to be committed to the Sessions Court, Junagadh, where it was registered as Sessions Case No.4 of 1995. Upon conclusion of the trial, the learned Sessions Judge found that the prosecution has not established the charges against the accused beyond reasonable doubt and acquitted them of the charges levelled against them.
4) Mr. K.P. Raval, learned Additional Public Prosecutor took the court through the entire evidence on record and, more particularly, the depositions of P.W.3-father of the deceased, P.W. 7-mother of the deceased, P.W.11-uncle of the deceased and P.W.14- the Investigating Officer. It was pointed out that the fact that the deceased was subjected to harassment by her in-laws on account of her having delivered a second daughter, has been duly established by the prosecution through the deposition of P.W.7- Maniben, the mother of the deceased, who has deposed that in the month of Vaishakh, her daughter had come to her parental home and had informed them that her husband and in-laws had told her that if another daughter is born, they would kill her. That on the 6th day after the daughter was born; she had visited her daughter at her matrimonial home, whereupon her daughter had told her that since she has given birth to another daughter, she was being subjected to harassment and that her in-laws were not giving her food to eat and were beating her and were threatening to kill her. She has also deposed that she had persuaded her daughter and told her that her in-laws would not kill her. At that time, she had stayed with her daughter for two days. Thus, the said witness had duly deposed that the deceased had told her that she was being subjected to undue harassment, which had resulted into her committing suicide. Thus, the offence under section 306 is clearly made out. It was submitted that considering the nature of harassment, it would only be the family members of the deceased, who would be aware of the same and that there would be no independent witness to such harassment. Therefore, there was no necessity to examine the independent witnesses as such facts would be disclosed to the parents alone. It was urged that when the offence regarding cruelty being meted out to the deceased after the birth of the second daughter has been duly established and there is no contradiction brought out by the defence in the cross-examination of the mother of the deceased, the mere fact that the first information report was lodged a bit late, would not be of much consequence. As regards the delay in lodging the first information report, it was submitted that the same has been duly explained inasmuch as immediately after the incident, the first informant was not in a mental state to lodge the first information report and, as such, a slight delay in lodging the same should not be given undue weightage. It was submitted that the facts of the present case are gross inasmuch as within 16 days of the birth of the second daughter, the deceased has committed suicide by pouring kerosene on herself and setting herself on fire. Considering the fact that she had two daughters of tender age, the deceased, unless she was left with no other option but to commit suicide, would not have taken such an extreme step. Referring to the impugned judgment and order passed by the learned Assistant Sessions Judge, it was submitted that the learned Judge has arrived at erroneous findings as he has given undue weightage to minor inconsistencies. That the prosecution has successfully established the charges levelled against the accused and, as such, the appeal deserves to be allowed and the accused are required to be convicted for the alleged offence.
5) Opposing the appeal, Mr. Param Buch, learned counsel for the respondents supported the impugned judgment and order by submitting that the learned Judge has given cogent, convincing and sufficient reasons for acquitting the respondents and that in the absence any perversity being pointed out in the findings recorded by the learned Judge, there is no warrant for interference by this court.
6) Referring to the deposition of the first informant, it was pointed out that in his cross- examination he has admitted that he has only put his thumb mark on the first information report and that the facts had been narrated by his brother Bachubhai. It was submitted that the first informant, in his cross-examination, has admitted that he had gone to the police station only at the instance of Bijalbhai Chanabhai Parmar, who was the leader of their community. Referring to the defence of the accused, it was pointed out that after the marriage, the husband was residing elsewhere, namely, at Mumbai and he had come to Simar village only because of the birth of his second daughter. It was pointed out that his wife, time and again, used to visit her parental home and that she was not subjected to any harassment at the hands of the accused. It was further pointed out that since the husband was residing at Mumbai, the deceased wanted to go with him at Mumbai when he was returning to Mumbai on the day of the incident, however, he had told her that he did not have the necessary residential accommodation for taking her along with him. It was further pointed out that it has come out from the cross-examination of the witnesses that when the first daughter was born, the accused had performed a religious ceremony to celebrate the birth of the daughter. Thus, it is apparent that there is no displeasure on the part of the accused on account of the birth of the second daughter and, as such, the allegations made in the first information report are false and frivolous. The learned Judge was, therefore, justified in holding that the prosecution has not established its case against the accused beyond reasonable doubt.
7) Reference was made to the decision of a Division Bench of this Court in the case of State of Gujarat v. Bharatbhai Balubhai Lad & Ors., 2006 (1) G.L.R 514 for the proposition that mere harassment or cruelty which drive the woman to commit suicide is not sufficient to constitute the offence under section 306. The attention of the court was drawn to paragraph 23 of the said decision, wherein the court has reiterated the principles which would govern and regulate the hearing of the appeal by the High Court against an order of acquittal passed by the trial court as laid down by the Supreme Court in the case of Ajit Savant Majagavi Vs. State of Karnataka, AIR 1997 SC 3255. It was submitted that under the circumstances, unless this court, after reappraising the evidence on record comes to the conclusion that the findings recorded by the trial court are against the weight of the evidence on record, namely, that they are perverse, the court would normally not interfere.
8) A perusal of the evidence on record shows that during the course of trial, the prosecution has examined as many as fifteen witnesses. However, the testimonies of P.W.3-Bhagwanbhai Lakhabhai-father of the deceased, P.W.7-Maniben Bhagwanbhai-mother of the deceased, P.W.11-Bachubhai Lakhabhai-uncle of the deceased, P.W.14-Najabhai Chanabhai Chauhan and P.W.14-the Investigating Officer, are more significant.
9) P.W.3 has deposed to the effect that his daughter-deceased Bhanu, after her marriage, was initially treated well by the accused. However, after his daughter gave birth to a second daughter, her sufferings had started. After her marriage, his daughter used to visit his house. Prior to her death, in the month of Chaitra or Vaishakh, she had come to his house, at which point of time, she had stayed there for five to six days. When she came to his house, she personally did not tell him anything; however, she had told his wife as well as her uncle Bachubhai about the same. His daughter had told his wife that the accused had told her that if she gives birth to a son, she would by happy. However, if she delivers a daughter, she would have to suffer. Thereafter, in the month of Shravan, his daughter had given birth to a second daughter. The elder daughter was about one and a half years old at that time. His daughter had expired about 16 to 17 days after the birth of the second daughter. At the time when the second daughter was born, his wife had gone to meet their daughter and had stayed at her matrimonial house for two days. After she returned, she had informed him that their daughter had problems about the food and now that she has given birth to a daughter, her position would not be good. That, her in-laws used to ask her as to why she did not give birth to a son and gave birth to a daughter. However, his wife had assured her that things would improve in a short while. About 17 to 18 days after his wife returned, they had received news about the death of their daughter. Thereafter, he had gone to his village Vadviyala from Una and on the third day thereafter, the police had approached him and had recorded his complaint. He had gone to Una police station and lodged the first information report. The first information report had been recorded as stated by him and he had put his thumb impression below the same. He has further deposed that his daughter Bhanu had died because of her sufferings.
10) In his cross-examination by the learned advocate for the accused, this witness has admitted that for her first delivery, his daughter had come to their house. He has also accepted that when his daughter gave birth to her first daughter, her husband and her mother-in-law had gone to Chotila for a religious function and had offered a Chundadi at the temple of Chotila Mata and, thereafter, they had come to their house at Vadviyala. He has also accepted that his son- in-law did not have any sister and as the first time a daughter was born in the family was the time when his daughter gave birth to her first child, her son-in-law had gone to the temple of Chotila Mata. He has also admitted that after his daughter’s marriage, his son- in-law and his brother had gone to Mumbai for the purpose of business. He has admitted that when the dead body of his daughter was handed over after performing the postmortem, he was at Una and both, his son-in-law and his father were present there. In his cross-examination, it has further been reveled that when his daughter had visited them earlier, his wife had gone to drop her. At that time, his wife had not informed him about the conduct of his daughter’s in- laws towards her. From the time his wife had gone to leave his daughter till she expired, he did not have any occasion to talk with his daughter. He has further accepted that on the next day after his daughter gave birth to a second daughter, his son-in-law Mahendra had returned from Mumbai. That prior to the death of his daughter, his son-in-law used to frequently visit them. He has further accepted that he had not lodged any complaint in respect of his daughter’s death before the police at Simar village. When the police made inquiry at Simar, he had informed that after her second delivery, his daughter had to face sufferings from her in-laws house. That he had not given any statement before the police at Una since he was not in a proper frame of mind at that time. He has admitted that when his daughter used to come to his house from her matrimonial home, she would stay for a shorter time that she had initially intended to stay. He has accepted that after the 6th day ceremony at his daughter’s place till the time she died, no member of his family had visited his daughter at her matrimonial home. In his cross-examination, it has further been revealed that both his brothers live in different villages and are agriculture labourers who are doing agriculture work at his village. It is further revealed that his wife had not informed him as to who had attended the 6th day ceremony and anything in relation thereto. It has further come out in his cross-examination that on the day when the first information report came to be registered, he had gone to Una at about 10:00 O’clock in the morning. He was accompanied by his brothers Bachubhai and Govindbhai. On that day, they had gone to Una Police Station on their own. He has admitted that at the time when the first information report came to be lodged, Bijalbhai Chanabhai Parmar was also present there and that he was a leader of their community. He has further admitted that Bijalbhai Chanabhai Parmar had come to Vadviyala to call him for the purpose of going to Una. He has also accepted that when he had gone with Bijalbhai to Una Police Station, he had stayed at the said police station for about five to six hours. He has further accepted that the police had taken only his thumb impression on the first information report, whereas the facts recorded in the first information report had been dictated by his brother Bachubhai.
11) P.W.7-Maniben Bhagwanbhai, who is the mother of the deceased, is the principal witness. She has deposed to the effect that prior to her death, her daughter had visited them in the month of Vaishakh, at which point of time, she had told her that her husband, mother-in-law and father-in-law are saying that she already has one daughter and if another daughter is born, they would kill her. However, she had assured her daughter that they would not do such a thing. She has further deposed that her daughter had disclosed the aforesaid facts to her uncle Bachubhai and Bhaya Lakha as well as to her aunts Kanchanben and Santokben. At the time when her daughter came to visit them in the month of Vaishakh, she had stayed for four to five days. After her daughter went to her matrimonial home, she had given birth to a daughter in the month of Shravan. Therefore, she had gone to visit her daughter at her matrimonial home. When she went there, her daughter told her that she was being harassed by her mother-in-law, father-in-law and her husband. That such harassment was meted out because she had given birth to another daughter. That she was not given food and was being beaten up and was threatened that she would be killed and would not be permitted to live. That she had pacified her daughter and told her that her in-laws would not kill her. That she had stayed for two days with her daughter at her matrimonial home. On the next day after she returned home, she had apprised her husband, brother-in-laws Bachubhai and Bhaya Lakha as well as sister-in-laws Kanchanben and Santokben about the aforesaid facts. She has further deposed that her daughter had died because her husband, mother-in-law and father-in-law were subjecting her to harassment. That her daughter had set herself on fire and died. In her cross- examination, it has come out that both her granddaughters were residing with her daughter’s in- laws and that they had not even brought the second daughter to live with them. She has accepted that it was her daughter, who for the first time, gave birth to a daughter in the family and that except for her daughter’s daughters, the family of her daughter’s in- laws did not have any other daughter. After her marriage, her daughter, time and again, used to visit them. Between the time that she got married and till her death, she had visited her about six to seven times and at the time of her first delivery, she had stayed with her for about a month. She has further deposed that her daughter time and again used to come to visit them. However, since their financial position was poor, she would not talk to them about her sufferings. She has accepted that at the time when her daughter came to visit her in the month of Vaishakh, her daughter’s husband was doing business at Mumbai and that when her daughter came to stay with them, she had brought her elder daughter with her. She has denied the suggestion that she has not stated in her police statement that Bhanu had told her that her mother-in-law, father-in-law and husband had told her that if a second daughter is born, they would kill her. She has further admitted that she has not stated in her statement before the police that she had told her daughter that they would not kill her. She has admitted that at the time when her daughter gave birth to a second daughter, her in-laws had sent a message to them, pursuant to which, she had visited her daughter for the 6th day ceremony.
12) The prosecution has also examined Kanchanben Bhayabhai at exhibit-42. She has deposed that at the time when the deceased came to her parental home in the month of Vaishakh, she had told them that her mother-in-law, father-in-law and her husband were threatening her that if a daughter is born, they would kill her and would not let her live. She has further deposed that after her sister-in-law Maniben returned from the deceased’s matrimonial home, she had informed them that the deceased’s in-laws were harassing her because she had given birth to a second daughter.
13) The prosecution has also examined Bachubhai, uncle of the deceased, who has deposed to the effect that when the deceased came to her parental home in the month of Vaishakh, she had stayed with them for about four to five days and had told him and his wife that her in-laws were threatening her that if she gives birth to a daughter, they would kill her. His elder brother’s wife Maniben had visited the deceased after she had given birth to a second daughter. When she returned home, she had informed them that the deceased’s in-laws were harassing her as she had not given birth to a son. He has deposed that his sister- in-law Maniben had told him that the deceased’s in- laws were harassing her and that they had told her that they would kill her and had also told her that her (the deceased’s) husband wanted to get a second wife. That the deceased expired one and a half to two months after his sister-in-law told them the above facts.
14) The Investigating Officer Najabhai Chanabhai Chauhan has been examined at exhibit-58. In his cross-
examination, certain contradictions in the statements made by the witnesses and in their depositions have been brought out.
15) A perusal of the first information report shows that it was the case of the first informant that his daughter, after her marriage, used to time and again visit them. However, she would never talk about anything. The last time when she visited them in the month of Vaishakh, she had not told her anything. However, she had told his younger brothers Bachubhai and Bhaya Lakha and their wives as well as his wife that her in-laws used to tell her that this time she would have to give birth to a son, else they would harass her or take any other extreme step and would not let her live. That she had stayed at his home for about four to five days and then returned to her matrimonial home at Simar. Thereafter, on the seventh or eighth day of Shravan, his daughter had given birth to a second daughter and on the sixth day, his wife had gone to Simar to visit her and stayed there for a night. When she returned home, his wife had told him and both his brothers that after the deceased gave birth to a second daughter, her husband, mother-in-law and father-in-law had started harassing her and were not giving her any food and that the deceased was crying and saying that her husband, mother-in-law and father-in-law, all three of them, were displeased on account of her having given birth to a second daughter and were asking her as to why she did not give birth to a son and that they would not let her live, and that the deceased’s husband wanted to remarry. The deceased had narrated the above facts to his wife, who had informed them about it. However, he had thought that things would improve and did not pay much attention to it. That on 24th September, 1994, when he was at home, a boy named Dhanji came from Simar with a letter, wherein it was stated that the deceased’s health was not good and hence, they should immediately come to Simar. When they went to Simar, they found that all her daughter’s in-laws were present and that his daughter’s dead body was lying in a room in a burnt condition. Accordingly, he had lodged the first information report alleging that his daughter’s husband Mahendra and her father-in-law and mother-in- law had subjected her to harassment and instigated her to commit suicide by pouring kerosene on herself.
16) On a perusal of the evidence on record, it is apparent that the only evidence regarding harassment being meted out to the deceased is by way of the testimony of P.W.7-Maniben, namely, the mother of the deceased. Insofar as the other witnesses, viz., father, aunt and uncle of the deceased are concerned, they have deposed to the effect that when the deceased had visited her parental home in the month of Vaishakh, she had told them that her in-laws were threatening her that she should give birth to a son and if a daughter is born, she would have to suffer. Thus, insofar as remaining witnesses are concerned, all that comes out from their depositions is that the deceased had been threatened that she would be harassed in case she gives birth to a daughter.
17) Thus, the only witness as regards harassment being caused to the deceased is Maniben, who has deposed that when she went to meet the deceased on the 6th day ceremony of her second daughter, she had informed her that she was not being treated properly by her in-laws and was not given food and was being asked as to why she had not given birth to a son but had given birth to a daughter, and that they were threatening to kill her and to get her husband remarried. Insofar as the remaining witnesses are concerned, their evidence on this aspect is in the nature of hearsay evidence inasmuch as all of them have deposed that the mother of the deceased had informed them about the same.
18) From the evidence which has come on record, it appears that the in-laws of the deceased did not have any other daughter in the family. The first time when a daughter was born in the family was when the deceased gave birth to her first daughter. On that occasion, to celebrate the birth of the daughter, the accused had visited the temple of Chotila Mata and had given offerings there. It has also come on record that when the deceased gave birth to a second daughter, her husband, who at the relevant time was residing at Mumbai for business purposes, had immediately come home. Thus, the say of the first informant that the accused were not happy with the birth of a second daughter, does not appear to be true. If the accused were not happy with the birth of a second daughter, there was no reason for the husband of the deceased to immediately return from Mumbai upon coming to know of the birth of his second daughter. Besides, though there are allegations of harassment, nothing has been brought on record as to what was the nature of such harassment except for the bare say that the deceased was not given sufficient food.
19) Besides, though the incident taken place on 24th September, 1994, the first information report was lodged after some delay on 25th September, 1994. From the deposition of the witnesses as recorded hereinabove, it is apparent that the first informant did not of his own, go to lodge the first information report. The leader of their community one Bijalbhai Chanabhai had come to the house of the first informant and taken him along with him for the purpose of lodging the first information report. The record also reveals that it was not the first informant, who had given the complaint to the police but it was his brother Bachubhai, who had dictated the first information report, on which the first informant had merely put his thumb impression. Thus, it cannot be ruled out that the first information report has been lodged after due planning with a view to incriminate the accused. On an overall view of the evidence, which has come on record, namely, that the accused, after the birth of the first daughter had celebrated the occasion and had given offerings at the Chotila Mata temple; the husband of the deceased had immediately returned from Mumbai upon the birth of the second daughter; all the accused were present when the first informant and his family went to her matrimonial home after her death; as well as the fact that both the daughters are still residing with the accused and not with the parents of the deceased, give rise to a belief that the accused were not unhappy about the birth of the second daughter.
20) It may further be noted that in their defence, the accused had stated that the deceased wanted to go Mumbai with her husband. He, however, had asked her to the understand that their daughter was only twenty days old and that he did not have any proper residential accommodation at Mumbai and hence, it was not possible for him to take her along with him. Examining the evidence on record, the version of the witnesses that at the time when the deceased came to visit them in the month of Vaishakh, she had told them that her in-laws were threatening her that she should give birth to a son, failing which, she would have to suffer, does not inspire any confidence inasmuch as before the birth of a son or daughter, there would be no reason for the accused to say such things. Normally, harassment, if any, would follow the delivery of a girl child. However, till a child is born, people normally do not proceed on such a presumption. For the aforesaid reasons, the trial court found that the version given by the witnesses is not believable as there was no reason for the accused to give such threats prior to the birth of the child.
21) Moreover, as noticed earlier, the only piece of evidence regarding harassment being meted out to the deceased is by way of the deposition of her mother Maniben, who has deposed that when she went to visit her daughter on the 6th day ceremony, she had told her that her in-laws were ill-treating her and that she was not being given sufficient food. However, it may also be noted that the said witness has stayed with her daughter for about two days at the time when she visited her after the birth of her second daughter. However, the said witness does not depose as to what was the conduct of the accused in relation to the accused. There is no material on record to the effect that at that time when the witness stayed with her daughter, her in-laws had subjected her to any harassment or that they were taunting her for giving birth of a daughter.
22) True it is that the deceased has committed suicide by pouring kerosene on herself and setting herself on fire. However, considering the fact that the deceased wanted to accompany her husband to Mumbai but was told that it was not possible, it is not possible to rule out that she could have been hypersensitive about the same and have committed suicide. Having regard to the aforesaid fact as well as the fact that her husband had immediately returned home upon the birth of the second daughter; and considering the conduct of the accused at the time when the first daughter was born when they had celebrated the occasion by giving offerings at the Chotila Mata Temple, this court is of the view that on the basis of the evidence, which has come on record, it would not be wise to base a conviction thereon.
23) Moreover, a perusal of the deposition of the Investigating Officer shows that the defence has brought out various contradictions in the statements of the witnesses inasmuch as in their depositions, they have stated things which were not stated in their statements before the police.
24) Having regard to the overall evidence, which has come on record, it is not possible to state that the view taken by the learned Assistant Sessions Judge is not a plausible view so as to warrant interference. The learned Judge has given cogent, convincing and sufficient reasons for the purpose of holding that the prosecution has not established its case against the accused beyond reasonable doubt. This court is in agreement with the reasoning adopted by the learned Judge and does not find any reason to take a different view.
25) For the reasons stated hereinabove as well as for the reasons recorded by the learned Judge in the impugned judgment and order, this court is of the view that the prosecution has not proved the charges levelled against the accused beyond reasonable doubt.
26) In the light of the aforesaid discussion, the appeal fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) Vahid