(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) State of Gujarat is before this Court being aggrieved by judgement and order dated 20th December 1989 passed by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.60 of 1988. The learned Additional Sessions Judge, Sabarkantha at Himmatnagar was pleased to acquit the accused of the charge for the offence under sections 302, 304(b), 498(A) and 201 of the Indian Penal Code. The case of the prosecution as set out in para 3 of the impugned judgment is reproduced hereunder:
Marriage of deceased-Hasumati has been solemnised with accused no.1, two and half years prior to the incident in question. Complainant-Danabhai Ravabhai had a son, named, Umedbhai and daughters, named, Chandrika, Hasumati (deceased), Bhagwati and Leela. Bhagwati and Leela are younger to Hasumati. Leela is unmarried, whereas, marriage of Bhagvati has been solemnised at Village Ranasan. After marriage, Hasumati used to reside at her matrimonial house and she used to visit her parental house occasionally. She reached her parental home six months prior to the incident in question as people at her matrimonial home nolonger wanted to keep her. Thereafter, the members at her matrimonial home sent messages once or twice asking to send Hasumati. Nevertheless parents of the deceased did not comply having regard to the harassment being meted out to the deceased. Father in law of Hasumati, accused no.2 came to the complainant's house, eight days prior to the incident in question, and insisted that Hasumati be sent. The complainant, however, articulated to him that the complainant wants to get the deceased re-married in the wake of harassment persevered by Hasumati at her matrimonial home, in view of dislike and disapproval towards Hasumati shown by her husband-accused no.1, and in view to the desire of her husband to have an educated wife. But accused no.2-father in law of the deceased has given assurance that hereafter his son-accused no.1 shall keep Hasumati very well. On such an assurance coming forth from and on responsibility having been assumed by accused no.2-father in law, Hasumati had been sent to her matrimonial home with accused no.2-father in law. Eventually, on the day of the incident, Haridas and Ishwarlal, who are accused nos.4 and 12, came to the complainant's house in a jeep stating that, "Hasumati has fallen sick, so come with us taking her clothes". Thereupon all of them accordingly embarked in jeep. On their way in jeep, it was disclosed by accused no.4 that, "Hasumati has expired". Thereafter, they directly reached matrimonial house of Hasumati, to find her carcass lying on a cot and blood like substance was oozing out of mouth. Then, the complainant asked the accused not to burn the girl, because he wants to get postmortem done of the body of his daughter. Thereafter, he went to Idar to take his brother in law (wife's brother) and when they returned, they saw the carcass of Hasumati being cremated in cemetery in presence of accused nos.4 to
13. An altercation had ensued with the accused persons. They have been scolded. Thereafter, an application was addressed to Idar Police Station and to the D.S.P. Then after, they visited the Police Station on 28th May 1988 and lodged complaint. The Police has commenced investigation and drawn necessary Panchnama. The Inspector of Forensic Science Laboratory had collected samples, with a cotton, by scientific method, from the blood stains present on three steps of staircase leading to upper floor. All the muddamal had been sent to the Forensic Science Laboratory. On completion of investigation, charge sheet has been filed by the Police in the Court at Idar. After formal committal-investigation, this case has been committed to the Sessions Court,
2. The prosecution, in order to establish the case, examined the following 15 witnesses:
Sl.
No.
Name of witness PW No.
Exhibit no.
01. Danabhai, son of Ravabhai 01 22
02. Indiraben, daughter of Manilal 02 26
03. Babubhai, daughter of Ravabhai 03 27
04. Shantaben, daughter of Venabhai 04 29
05. Manjulaben, daughter of Amrabhai 05 30
06. Vijaysinh, son of Vakatsinh 06 31
07. Jashwantsinh, son of Darjansinh 07 34
08. Anopsinh, son of Vakatsinh 08 35
09. Natvarsinh, son of Girdharisinh 09 37
10. Adaji, son of Ravaji 10 38
11. Dilipkumar, son of Narandas Patel 11 41
12. Natvarsinh, son of Gambhirsinh 12 42
13. Bhanulal, son of Bhojabhai Parmar 13 43
14. Mohammedbhai, son of Nurabhai Sunasra 14 46 15 Dr.Ramaniklal, son of Maganlal Mistri 15 49 Learned Additional Public Prosecutor, Mr.Pujari strenuously tried to convince this Court that the learned Judge has committed error in acquitting the accused of the charges levelled against them. The learned APP submitted that the learned Judge ought to have appreciated that the marriage span of the deceased with accused no.1 was of about 2 ½ years. The learned APP submitted that the learned Judge ought to have appreciated that the accused in a hot haste had tried to dispose of and in fact has disposed of the dead body rendering the complainant helpless in getting postmortem performed on the dead body.
3. The learned APP submitted that it is true that it is the case of circumstantial evidence. But according to the learned APP, if the circumstances are taken into consideration in totality they lead to only one inference that the deceased, who was not having any illness could not have died of natural death during the night intervening 16th and 17th May 1988. The learned APP also submitted the written submissions made by accused no.1 gives a story that in the night of the incident he was in the field as there was green crop which was required to be protected. But the Investigating Officer has recorded statement of accused no.1 and he has come with an altogether a different story. It is stated by the Investigating Officer in his deposition, exh.43, who is examined as PW-13 that on inquiry it was learnt that accused no.1 had eye sore, therefore, he went to Idar for getting medicines and after having returned from Idar at night he has gone to the first floor to sleep. His wife (deceased) administered eye drops to accused no.1. Thereafter, late night the deceased complained about chest pain, in response to which accused no.1 shown readiness to call doctor, but the deceased did not permit him to do so and said that he may only apply 'balm', which will give her required relief. It is also noted by the Investigating Officer that accused no.1 did apply balm on the chest of his wife after which she fell asleep. In the morning when he tried to wake her up she was found to be dead. Accused no.1 then called his parents and also one Haribhai Kalidas, who brought the dead body down. The Investigating Officer has deposed that these details were learnt by the Investigating Officer from accused no.1 and said Shri Haribhai Kalidas, who is not cited as a witness in the charge sheet.
Curiously enough the prosecution, as usual, has not taken care to bring the best possible evidence on record. The Investigating Officer has not taken care to record the statement of said Haribhai Kalidas as a witness. Besides that sister of mother of deceased was living just opposite to the residence of accused no.1 and the deceased. Not only that even the complainant has deposed that his sister in law (Sali) was present when he reached the place of in-laws of his daughter where the dead body of his daughter was kept on a cot. On perusal of papers it is noticed that statement of Bhikhiben, wife of Maganbhai was recorded by the Investigating Officer, but for the reasons best known, she is not examined as a witness. She could have been best available person to depose ill treatment, if any, given to the deceased. Not only that the prosecution has not examined Dahyabhai Chhaganbhai as a witness though his statement was recorded by the Investigating Officer. Said Dahyabhai is the person, who accompanied the complainant- father of the deceased to the place of in-laws of the deceased and he could have successfully deposed if he is examined. The prosecution could have successfully brought on record that the complainant- father of the deceased and said Dahyabhai requested in-laws not to dispose of the dead body and not to undertake cremation while they went to call maternal uncle of the deceased (the complainant's brother-in-law/ Sala).
4. The learned APP vehemently submitted that the learned Additional Sessions Judge ought to have appreciated that even the doctor gave opinion that it was homicidal death. Though it appears to be an attractive submission, on perusal of Exh.50, the letter written by the Office of the Police Sub Inspector to Civil Surgeon/ Medical Officer, Civil Hospital, Idar makes a curious reading. All what is stated in the letter is that as per the statement of the persons concerned and as is deposed by them the deceased was not having any illness and when the persons whose statements are referred to and relied upon have deposed that there was some swelling on the neck of the deceased and some blood like liquid was coming out of her mouth. Only on these two observations the doctor is asked to opine whether -
(i) Death of the deceased could have occurred on account of any accident?
(ii) Death of the deceased could have occurred in natural course though there was no illness while she was sleeping?
(iii) Whether death of the deceased could be suicidal?
And
(iv) Whether death of the deceased could be homicidal?
The opinion of the doctor is produced as exh.51 and the doctor answered the first three questions in negative and the last question as 'homicidal'. This Court is of the opinion that only on the basis of narration of the opinion/ observations of the persons, who saw the dead body, which was not sent to the doctor, in their own words, but only narrated in the letter on the basis of those observations/ opinion of the persons, who had occasion to see the dead body, the doctor expressed opinion that, 'the death could be homicidal'. This Court is of the opinion that such an opinion is of no weightage and no cognisance can be taken of such opinion as it is found without sufficient credit.
5. Besides, there are flaws in the prosecution resulting from the ineffective investigation inasmuch as the investigating agency did not cite Haribhai Kalidas as a witness in the charge sheet. The prosecution did not examine the persons cited as a witnesses in the charge sheet, namely, Bhikhiben and Dahyabhai Chhaganbhai. The conduct of the complainant is also not found to be very natural. Taking into consideration the fact that there was a 'Sata' marriage, viz. daughter from one family is given in marriage to another family in lieu of daughter of the other family given in marriage to the first family. The complainant was not serious about postmortem of the body of his daughter. Otherwise, he could have assigned the task of calling his brother in law (wife's brother) to somebody else and he could have prevailed over the accused restraining from performing cremation. As is the case of the prosecution the complainant only requested the accused not to go ahead with the cremation and went to call his brother in law, and as the case stands the complainant states that when he came back to the place of the accused he found in the cremation ground dead body was in the process of being cremated. It may not be very comfortable in using expression that father of deceased was not very serious about the incident but the Court has no other alternative than to infer that at the relevant time the complainant was not keen on restraining the accused from undertaking cremation of the dead body. May be that he wanted himself strengthened with the presence of his brother in law (Sala) but then in the result most important evidence is lost and the prosecution is left out only with conjectures and surmises.
6. In order to establish that accused no.1 was not liking the deceased as she was not so educated as he wanted, two friends of the deceased were examined, namely, (i) Indiraben, daughter of Manilal, PW-2, Exh.26 and (ii) Manjulaben, daughter of Amrabhai, PW-5, Exh.30. They only deposed that when she used to come to her parental home they used to meet her, at that time she used to say that her husband does not like her and he wants a more educated girl as his life partner. But what is more important is that this was never disclosed by friends of deceased before stating the same before the Court at the time of deposition. In such circumstances to rely upon such a remote evidence and saddle the accused of the offence of murder or culpable homicide is not safe and therefore, on a careful consideration of the evidence which is placed before us this Court is of the opinion that the impugned judgement and order cannot be upset.
7. In the result the judgement and order dated 20th December 1989 rendered by the learned Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.60 of 1988 is upheld. The Appeal is dismissed. Bail bonds issued against the accused stand cancelled.
(RAVI R. TRIPATHI, J.) (G.B.
SHAH, J.) karim Top