Z.K.SAIYED, J. - (1.) THE present appeal, under section 378(1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 21.11.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Veraval, Camp at Una, in Sessions Case No.9 of 2007, whereby the accused persons have been convicted and sentenced for the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code. Learned Sessions Judge ordered the appellants to undergo three years rigorous imprisonment and fine of Rs.5000/ -, in default, further simple imprisonment of six months for the offences punishable under Sections 498(A) and 114 of the Indian Penal Code. For the offences punishable under Sections 306 and 114 of the Indian Penal Code, the appellants were ordered to undergo 10 years rigorous imprisonment and fine of Rs.12000/ - each, in default, further simple imprisonment of one year. The appellants were acquitted for offences punishable under Section 304(B) read with Section 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The appellants have been given set off for the undergone period. All the sentences shall run concurrently. The appellant No.1 has been already released from the jail, as he completed his sentence imposed by the learned Sessions Judge.
(2.) THE brief facts of the prosecution case are as under: 2.1 The niece of the complainant namely Nimishaben married with accused No.1 appellant No.1 Hitesh before five years from the incident. Present appellant Nos.2 and 3 are mother -in -law and sister -in -law of the said Nimishaben. After marriage, said Nimishaben was residing with the appellants in joint family at Kodinar and initially, their marriage life was going on smoothly for a period of one year. Thereafter, the appellants started torture by saying that Nimishaben did not work properly and she was not liked by them and she did not bring any dowry. Said Nimishaben told the same about the harassment caused by the appellants to the complainant. The complainant also persuaded Nimishaben and sent her to matrimonial home. As per the case of prosecution, before two years, said Nimishaben was driven out from her matrimonial home and therefore, she stayed at Kanta Stri Vikas Gruh at Rajkot. The complainant met her at there, where said Nimishaben told him that the appellants told her to bring Rs.20000/ - and thereafter, the maternal uncle of Nimishaben sent her to Kodinar after making compromise. Thereafter, after a month, said Nimishaben was driven out by the appellants from her matrimonial home and therefore, one case was registered before Amreli Nari Suraksha Gruh. Thereafter, after two months, the father -in -law and husband of Nimishaben brought her at Kodinar after making settlement. As per the case of the prosecution, after a month, said Nimishaben was driven out by beating her from her matrimonial home and therefore, Nimishaben filed complaint before Babra Police Station and maintenance application was filed before Babra Court. Thereafter, the husband of Nimishaben made settlement with her in the Court and brought her at Kodinar. Thereafter, again after one month, the appellants had driven out the appellant by beating and therefore, Nimishaben filed case Amreli Mahila Vikas Gruh, where her maintenance was fixed, but mainteance was not paid by the appellants. As per the case of the prosecution, the father of said Nimishaben was not alive and her mother was suffering from mental disease and therefore, she went to Gondal Bala Ashram, where she stayed upto 8 days and thereafter, she went to her matrimonial home at Kodinar with a view to see her minor daughter namely Amiben. As per the case of the prosecution case, on 12.11.2006, at about 11:30 hrs. when the complainant was going to his service place, he came to know that Nimishaben consumed poison. Thereafter, the daughter of complainant made phone to the complainant about the death of Nimishaben and at that time, the complainant was at service. Therefore, the complainant immediately rushed to the Government Hospital at Veraval, where he found dead body of Nimishaben in Post Mortum Room. Therefore, the complainant filed complaint being I C.R. No.172 of 2006 before the Kodinar Police Station against the appellants. Thereafter, further investigation was carried out and drawn the panchnama scene of offence. The statements of witnesses were recorded and accused were arrested. The charge -sheet was filed against the accused. Ld. Judicial Magistrate First Class, Kodinar, has committed the said case to the Court of Sessions, under Section 209 of the Code of Criminal Procedure. Then statements were recorded by the learned Sessions Judge and Sessions Case was listed for evidence. 2.3 To prove the case against the present accused, the prosecution has examined witnesses JUDGEMENT_102_LAWS(GJH)2_2015.htm The prosecution has produced following documentary evidence : JUDGEMENT_102_LAWS(GJH)2_20151.htm The defence side has examined following witness JUDGEMENT_102_LAWS(GJH)2_20152.htm The defence has also produced dying declaration at Exhibit 147. 2.4 The statement under Section 313 of the Code of Criminal Procedure were recorded, wherein the accused stated that the false compliant is filed against them and they have been wrongly implicated in the alleged offence. They have also stated that the deceased consumed poison by mistake and the complainant filed wrong complaint by keeping grudge against them. 2.5 At the end of trial, after hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted and sentenced the respondents as stated above. 2.6 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the concerned trial Court, the appellants preferred the present appeal.
(3.) LEARNED advocate for the appellants fairly submitted that the appellant No.1 is already released from the jail, therefore, present appeal is not pressed qua the appellant No.1. So far as appellant Nos.2 and 3 are concerned, he submitted that they are innocent and they are mother -in -law and sister -in -law of the deceased. Learned advocate Mr. Gondaliya appearing on behalf of the appellants submitted that the learned Sessions Judge held guilty the appellants on wrong basis and without appreciating the evidence properly, the learned Sessions Judge imposed sentence upon the appellants. He also submitted that the evidence of the witnesses examined by the prosecution are interested witnesses and they are not reliable and trustworthy. He also submitted that there are material contradictions between the evidence of the witnesses and documents produced on record. He also submitted that even in the dying declaration, there was no allegation against the accused. Even before the Doctor, the deceased did not make any allegation against the accused. He also submitted that the deceased was in habit of leaving her matrimonial home and used to reside at Nari Vikas Gruh. He also submitted that there was no any independent evidence in support of the case of the prosecution produced, though there were number of independent witnesses were available. He read the oral evidence of P.W.6 Rameshbhai Jaganlal Pandya and submitted that said witness stated that he is uncle of the deceased and father of the deceased was died and mother and younger brother of the deceased is suffering from mental disease. This witness also stated in his evidence that the father of the appellant No.1 and father -in -law of the deceased was serving as PSI at Ahmedabad. During the marriage span, the deceased gave birth one daughter namely Amiben, who was five years old at the time of incident. Learned advocate further submitted that this witness admitted in his cross -examination that the appellants were harassing mentally and physically the deceased by raising demand of dowry. Therefore, due to harassment caused by the appellants, the deceased consumed poison and died, but the real fact is as such that the deceased was also suffering from mental disease and by mistake, she consumed poison and died. Here the harassment or cruelty on the part of the appellants are not proved by any of the evidence of the witnesses examined by the prosecution during trial. Learned advocate submitted that looking to the complaint which was lodged by the deceased herself on 12.11.2006, clearly established that the deceased consumed poisonous tablet due to mistake and immediately, the appellant No.1 took her to the hospital for medical treatment. Even the complaint reveals that the deceased was not harassed by the appellants. Therefore, learned advocate submitted that the deceased herself stated that due to mistake, she consumed poison, then it would be presumed that the benefits of doubt is required to be considered in favour of the appellants. He also submitted that looking to the oral evidence of P.W. 7 Kiranben Rameshbhai Pandya, who is wife of the complainant, P.W.9 Sandipbhai Bharatbhai Pandya, who is brother of the deceased and neighbour, all are interested witnesses, and naturally they supported the version of the complainant. Therefore, it cannot be said that the appellants instigated the deceased to commit suicide. He also submitted that the main ingredients of instigation, abetment and provocation are not proved at all by the prosecution. He further submitted that as per the provisions of Section 113(A) of the Evidence Act, the abetment on the part of the appellants are not proved. He also stated that looking to the oral evidence P.W.3 Dr. Purviben Shitalgiri, it appears that the deceased was suffering mental disease like schizophrenia and therefore, she consumed such poison and there is possibility of depression. This witness also stated that the said disease is inheritable and therefore, it is clearly established that the mother of the diseased was suffering such disease and therefore, the deceased got the same from her mother. Learned advocate further submitted that from the evidence of the witnesses, nothing found about the cruelty meted out by the appellant upon the deceased except the interested witnesses and learned Sessions Judge has wrongly relied upon the versions of the interested witnesses. Learned advocate Mr. Gondaliya further submitted that from the dying declaration of the deceased recorded at Exhibit 119, it clearly appears that the deceased consumed poisonous tables, which was kept for the protection of the wheat. The dying declaration further reveals that said poison was consumed by her own. She further stated in dying declaration that there was no problem from the appellants to her. Learned advocate further submitted that when said dying declaration was recorded, the deceased was fully conscious and therefore, it is established that no cruelty was meted out by the appellants upon the deceased. He also drew the attention to the documentary evidence complaint, panchnama, inquest panchnama, dying declaration etc. and submitted that no corroboration is made to prove the case against the appellants and there are several contradictions in the evidence of the witnesses. Even in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellants sufficiently made their attempt about wrong their implication in the offence, but the learned Sessions has not considered the same. He also submitted that from the defence side, D.W.1 Kishorbhai Kantilal Mehta examined by the prosecution and said witness also stated that there was no any harassment by the appellants to the deceased and due to mistake, the deceased consumed poison. He drew the attention of this Court to the evidence of D.W. 2 Dilubha Albha Dayatar and submitted that this witness also stated that the poisonous tablets with water were in the glass of the water and deceased drunk the same as drinking water due to mistake. He submitted that from the overall evidence, it can be said that the prosecution could not establish the case against the appellants. He, therefore, submitted that the impugned judgment and order is required to be quashed and set aside by allowing present appeal and appellants are required to be acquitted of the charges as levelled against them.;