State Of Gujarat vs Dharmendrasinh Dashrathsinh Rathod

Gujarat High Court

State Of Gujarat vs Dharmendrasinh Dashrathsinh Rathod on 27 February, 2025

Author: Gita Gopi

Bench: Gita Gopi

                                                                                                                NEUTRAL CITATION




                          R/CR.A/1254/2009                                      JUDGMENT DATED: 27/02/2025

                                                                                                                 undefined




                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 1254 of 2009

                      FOR APPROVAL AND SIGNATURE :

                      HONOURABLE MS. JUSTICE GITA GOPI

                      ================================================================

                                  Approved for Reporting                       Yes           No
                                                                                       ✔
                      ================================================================
                                              STATE OF GUJARAT
                                                    Versus
                                  DHARMENDRASINH DASHRATHSINH RATHOD & ANR.
                      ================================================================
                      Appearance:
                      MS ASMITA PATEL, ADDITIONAL PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      MS POONAM M MAHETA(11265) for the Opponent(s)/Respondent(s) No.
                      1,2
                      ================================================================

                        CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                         Date : 27/02/2025
                                                         ORAL JUDGMENT

1. The present appeal filed under Section 378(1)(3) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 15.11.2008 passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.4, Ahmedabad (Rural) in Sessions Case No.103 of 2005 acquitting the accused for the offences punishable under Sections 323, 294-B, 306, 509 read with Section 114 of the Indian Penal Code, 1860 (IPC).

NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined

2. The brief facts that could be drawn from the record suggests that on 05.03.2005, the complainant - lodged a complaint before the Sabarmati Police Station, Ahmedabad vide I-C.R. No.82 of 2005 for the above alleged offences. As per the case, the deceased and the complainant being a legally wedded couple were residing at Block No.3/1 in Ranip Police Lines, Ahmedabad. About one and half months or two months prior to the complaint, on 28.02.2005 in absence of the complainant, the accused used to go to the house of the complainant and repeatedly used to take undue liberty of the complainant's wife (the deceased), i.e. Arunaben. Likewise on 28.02.2005 at about 10 a.m. when Arunaben and her daughter were passing near Water Tank, Opposite Flour Mill, Ranip Police Lines, the accused alongwith other absconding co-accused-Bhanvarsinh knocked on the door of the complainant. Further, thereafter, on 03.03.2005, at 12.30 hours in the midnight, when the accused knocked on the door of the complainant's house, the wife of the complainant- Arunaben did not open the door. However, the accused being obstinate continued to knock on the door, as a result, the deceased started shouting and therefore, the neighbours and persons residing in the vicinity of the house of the complainant gathered there.

NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined

3. On 04.03.2005, when the complainant returned back home from service, he came to know about the incident, he scolded the absconding accused-Bhanvarsinh, who got excited and started using abusive language to the complainant and gave kick and fist blows and as a result of which, the complainant fell down and thereafter, the quarrel took place.

4. On 05.03.2005, the wife of the complainant-Arunaben was going to the flour mill for grinding the grain, the accused threatened and told Arunaben to forget about the incident, as a result of which she got frightened and got home and in absence of the complainant (her husband), she wrote an informal letter disclosing the fact and ultimately noted about the repeated sexual harassment meted out to her by the accused. It is the case of the prosecution that on account of the feeling of stigma and ill-fame and because of being threatened by the accused, committed suicide by hanging herself from a ceiling fan. Thereafter, a complaint was filed before the Sabarmati Police Station by her husband-the complainant-Kunalgiri Laxmangiri Goswami.

NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined

5. Learned APP submitted that the learned trial Court Judge has erred in acquitting the accused, the judgment is contrary to law and the evidence on record and also on the principles of justice. It is submitted that there are direct and indirect evidence to connect the present accused with the crime and inspite of that, the learned Judge has failed to appreciate the evidence. The deposition of the complainant and the daughter proves the facts of the case. It is further submitted that the absconding accused-Bhanvarsinh had also beaten the complainant himself and on the day when the deceased had committed suicide, all the accused had stopped the deceased, and told her to forget about the incident which had taken place on the earlier night. It is further submitted that the proximate cause of suicide is the instigation of the accused which had led the deceased to commit suicide. It is also submitted that all the relevant evidence which are on record suggests that the statement of the complainant-Kunalgiri Laxmangiri Goswami is corroborated by the statement of Pravinsing Vaghela, on that day, many people had gathered there he was sleeping in the house and about midnight in the outside the house of the complainant, there was noise and therefore, he had come out to see and saw exchange of words between Bhanvarsinh and Amarsinh near the house Page 4 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined of the complainant. He has also specifically clarified that Amarsinh was trying to prevail upon Bhanvarsinh not to knock the door of the neighbours at midnight and therefore, Bhanvarsinh started shouting and quarreling with him. It is further submitted that this deposition proves the incident which had taken place on the earlier day which is supported by the evidence of the complainant who had gone to instruct Bhanvarsinh not commit the said acts. It is submitted that it is the complainant who has received injuries from Bhanvarsinh and that the informal chitti was proved by the hand writing expert and inspite of that, the learned Judge has acquitted the accused which is illegal, incorrect and erroneous and deserves to be quashed and set aside.

6. Per contra, learned advocate for the respondents Ms. Poonam M. Maheta submitted that the prosecution has failed to establish the case against the present accused beyond reasonable doubt. Initially the present accused were not named in the complaint and on overall appreciation of the evidence, it was held by the learned Judge that the deceased was harassed by Bhanvarsinh and not by the present accused. The evidence proves that the deceased has not named the present accused in the Chitti and further, no role is described by any of the Page 5 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined witnesses qua the present accused. Therefore, it is submitted that the learned trial Court has rightly acquitted the present accused by giving benefit of doubt.

7. Learned advocate Ms. Poonam M. Maheta further submitted that the evidence of minor PW2-Komalben Laxmangiri also does not name the present accused. On the contrary, she has described the incident in a different manner than the other eye witness and thereafter, her deposition has not been rightly believed by the trial Court. There are material contradictions in her evidence with regard to the vital aspect of opening the door. Further, there was no light in the front and backside of the door. It is further submitted that the child would not have identified the accused. It is also submitted that the Investigating Officer was thus, required to put the accused under the Test Identification Parade but that aspect has gone unexplained and therefore too, the learned Judge has not believed the version of the prosecution.

8. Learned advocate Ms. Poonam M. Maheta submitted that the prime accused is Bhanvarsinh, the charge-sheet was separated and the trial was conducted and ultimately he Page 6 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined was convicted. The appeal confirmed conviction. It is further submitted that it was Bhanvarsinh who was going to the house of the deceased and used to harass her. The original complainant nor her daughter have named the present accused by describing the allegations and role of the present accused. On the contrary, it is submitted that in his oral evidence that the name of the present accused have been given on the next date. When his further statement was recorded, learned advocate Ms. Poonam M. Maheta submitted that it became crystal clear that the present accused were not in picture and were later on falsely implicated by the investigating agency since the original accused-Bhanvarsinh was absconding at the relevant time and in the name of speedy investigation, the present accused has been falsely implicated.

9. It is further submitted that the evidence of PW6-Amarsing Devsing Chavda cannot be believed and has not named the present accused, who is shown to be an eye witness. According to his statement, when there was noise he had not seen the present accused and it was only Bhanvarsinh that he had seen at that time. It is further submitted that the evidence of PW7-Subhash Chauhan does not connect the present accused. It is further submitted that Page 7 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined nothing had stopped the deceased to have named the accused in the suicide note and the suicide note refers to only one person which itself proves that the present accused have been falsely implicated. Except the child witness, no other person have named the present accused. It is further submitted that no conviction should lie on the basis of the statement of the child witness as the same could be tutored and also that there was no name of the accused in the suicide note written by the deceased.

10. Learned advocate Ms. Poonam M. Maheta has referred to the deposition of Kanubhai Chauhan who has named the present accused only on the ground that they were roaming with the main accused Bhanvarsinh. Thus, it is submitted that the present accused have been implicated as they were the associates of Bhanvarsinh but no explicit role has come on record, to show any sexual harassment by the present accused.

11. Learned advocate Ms. Poonam M. Maheta further submitted that the present accused were doing the police duty and were on service immediately after the alleged incident which itself suggests that there was no Page 8 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined involvement of the present respondents in the act. It is further submitted that the conduct of the main accused was required to be appreciated since he had remained absconding for five years after having committed such an offence and the main allegations are against the prime accused-Bhanvarsinh who had been convicted by the judgment dated 16.04.2012 in Sessions Case No.94 of 2010.

12. Having heard learned advocates appearing for the respective parties and considering the submissions canvassed as also on perusing the records of the case, and on appreciation of deposition of the witnesses, the whole act has been appreciated by the learned Judge which shows that it was Bhanvarsinh who was harassing the deceased Arunaben. On the day of the incident, Bhanvarsinh had knocked the door of the complainant, the complainant was not present in the house and he was on service. The child witness was about 13 years old and who has stated that three persons used to come to their house in absence of their father. She has further stated that the present accused as well as Bhanvarsinh used to say something to her mother. The child witness has also narrated the incident of 03.03.2005. When she returned home from her school, she saw her mother Page 9 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined hanging on the ceiling fan and the neighbors telephoned the police and the police had come and investigated the room where they found chits upon the T.V. which was in her mother's handwriting. The said chits were seized by the police. In the cross examination, the child witness stated that there was no one present with her when the statement was recorded and she has also admitted that when the door was knocked, her mother did not open it. Her further deposition states that there was no light outside the house or at the backside nor at the rear side of the house. She also does not have any memory to state that the present incident was prior to three months from the earlier incident. She has further stated that when she returned from school, she was at the place of incident where her mother had committed suicide and there was a mob of 500-600 persons near her house. She has also stated at the time of recording of statement no chits were shown to her and she has also admitted that there was no test identification parade at any point of time in the past. She has also further stated that when the police had come to record her statement, no accused were accompanying her. She does not remember the time when the police had come for recording the statement. The evidence of the child witness cannot be taken into consideration unless there is Page 10 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined corroboration at material point, where she has alleged that all the present accused were saying something to her mother and on the day three months prior to the incident of suicide, there are allegations that the door of the house was knocked, however, the child could not say in particular as to which person had knocked the door and the test identification parade would not have much value to her evidence in the absence of the direct evidence. The only allegations against the respondents is that they were saying something to her mother but what was being said by the accused has not come on record or whether there was any sexual abuse / harassment by the present accused is not coming on record through the child witness. The said fact has come on record by way of evidence of the complainant who was not a witness to the incident that had taken place in the midnight and he was rather informed that it was the accused-Bhanvarsinh who had knocked on the door at midnight and the deceased had seen from the window and ascertained that it was Bhanvarsinh who was forcing her to open the door but she did not open and owing to the shouts, the deceased gave one slap to Bhanvarsinh in the presence of others. Thereafter, Bhanvarsinh went away and the complainant had gone to the house of Bhanvarsinh and had scolded him but Bhanvarsinh started using abusive Page 11 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined words towards the complainant, ultimately which resulted into a quarrel and giving kick and fist blows. On 05.03.2005, at the time of incident, the complainant had gone to work and he was on night duty and when he came back, he came to know that his wife had committed suicide.

13. The witness PW6-Chavda Amarsinh who had stated about the knocks on the doors of the house of the complainant only names Bhanvarsinh going to the deceased's house in the midnight. The appreciation of evidence of PW6-Chavda Amarsinh shows that he has not named the present accused nor is there any allegation about the alleged presence of the present accused.

14. The deceased in her suicide note has referred to only one person. The learned Judge has appreciated referring to the deposition of the expert witness PW18- Manohar Mohandas Dahililani at Exhibit 66 who was the Assistant Examiner of Questioned Documents in FSL, Gandhinagar. From the evidence of this witness, it was concluded that chits and the hand writing of the deceased does not show of any context of the present accused and it does not lead to any conclusion that Page 12 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined because of the present accused, the deceased had committed suicide. All the witnesses have observed that they have stated about the incident of the knocking of door but neither of them had witnessed any of the present accused harassing the deceased. The allegations are totally against Bhanvarsinh only. There is no direct evidence to show the ingredients of Section 107 of IPC to prove any abetment from the side of the present accused or that the accused were either directly involved with the suicide. There is nothing on record to prove that the present accused have abetted the suicide. Merely on the strength of the chit and the manuscript, the present respondents cannot be held responsible when there is no clear cut evidence of the involvement of the present accused and hence, no conviction can follow. The allegations are totally against Bhanvarsinh. Exhibit 37 is the handwriting which has been produced on record and only on the 10th line, a mention is made about one person. On page 3 of Exhibit 37, in the 3rd line, the name of Bhanvarsinh is specifically mentioned by the deceased and again on the 7th line on the same Page, only mention is made about 'one person'. Reference is also required to be made that on the same page, there is also mention about the knocking by Bhanvarsinh but name of the present respondents in the knocking has not Page 13 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025 NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined been noted in the chit nor mention is made of the names of the present accused. The writing which was found in the house of the deceased does not link the present accused. Hence, considering all the evidence on record, it cannot be said that any abetment has been made by any of the present respondent to instigate the deceased within the meaning of Section 107 of IPC for the charge of abetting suicide under Section 306 of IPC.

15. The trial against Bhanvarsinh in Sessions Case No.94 of 2010 has resulted into conviction and the Appeal, i.e. 963 of 2012 against conviction has confirmed the conviction.

16. This Court also relies on the decision of the Hon'ble Apex Court in the case of Mallappa and Others v. State of Karnataka reported in AIRONLINE 2024 SC 80 wherein it was held in Paragraph 36 as under:-

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which comes into play while deciding an Appeal from acquittal could be summarized as :

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

NEUTRAL CITATION R/CR.A/1254/2009 JUDGMENT DATED: 27/02/2025 undefined

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

17. This Court does not find any reason to interfere with the reasoning given by the learned Judge. Thus, on an overall appreciation of the evidence, I do not find any infirmity or perversity in the order passed by the learned Sessions Judge. Hence, I am not inclined to disturb the acquittal of the accused.

18. The present Appeal hence, is dismissed. Record and proceedings shall be returned forthwith.

Sd/-

(GITA GOPI, J) CAROLINE / Per Court Board #8 Page 15 of 15 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Sat Mar 01 2025 Downloaded on : Mon Mar 03 22:08:32 IST 2025