Gujarat High Court
State Of Gujarat vs Puspaben Bhagavanji Kadiya on 18 October, 2022
Bench: Rajendra M. Sareen
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 814 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
PUSPABEN BHAGAVANJI KADIYA
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Appearance:
MS CM SHAH APP for the Appellant(s) No. 1
MR GHANSHYAM AMIN(123) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE S.H.VORA
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 18/10/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
1. Present Criminal Appeal has been preferred by the
appellant - State of Gujarat under Section 378 of the
Criminal Procedure Code, 1973 against the judgment and
order dated 14/06/1996 passed by the learned Additional
Sessions Judge, Ahmedabad in Sessions Case No.287 of
1992 acquitting the respondent - original accused from the
offence punishable under sections 304B and 498A of
Indian Penal Code.
2. The crux of the case of the prosecution is as under:-
The accused is mother-in-law of the daughter of the
complainant - Alkaben. The marriage of the daughter of the
complainant was performed with the son of the accused -
Pradipkumar on 18/1/1991. After the marriage, Alkaben
was residing at her matrimonial home. There was demand
of dowry from the respondent accused but the parents of
Alkaben was not able to satisfy the demand of money made
by the respondent accused, and hence, there was constant
physical and mental harassment to the Alkaben by the
accused, as a result of which Alkaben consumed poisonous
substance on 13/1/1992 and hence she was shifted to V.S.
Hospital, Ahmedabad where she died on 13/1/1992 and
hence the complaint for the aforesaid offence came to be
given by the complainant - mother of the deceased Alkaben.
3. On the basis of the said complaint, investigation was
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started, statement of witnesses were recorded, inquest
panchnama was carried out, panchnama of scene of offence
was carried out, postmortem report was obtained and after
through investigation, as there was sufficient evidence
against the respondent - accused, Chargesheet was filed
before the learned Metropolitan Magistrate. As the offence
committed by the accused persons was exclusively triable
by the Court of Sessions as per the provisions of Section
209 of Criminal Procedure Code, the learned Judge was
pleased to commit the case to the Court of Sessions and the
case was transferred and placed for trial in the court of
learned Additional Sessions Judge, which has been
numbered as Sessions Case No.287 of 1992. Thereafter,
Charge was framed against the accused for the offence
punishable under sections 304-B and 498-A of Indian
Penal Code. The accused person pleaded not guilty to the
Charges and claimed to be tried. The prosecution, therefore,
laid evidence, oral as well as documentary. After the
evidence was over, Further Statement of the respondent -
accused was recorded under section 313 of the Code of
Criminal Procedure and arguments were heard. At the
conclusion of the trial, the learned Sessions Judge was
pleased to acquit the accused for the charges levelled
against her. Hence, the appellant - State of Gujarat has
preferred the present Criminal Appeal challenging the
judgement and order of acquittal.
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
4. Heard Ms.C.M. Shah, learned APP for the State and
Mr.Ghanshyam Amin, learned advocate for the respondent
accused.
5. Mr.C.M. Shah, learned APP has vehemently submitted
that the Sessions Court has committed a grave error in not
believing the deposition of the witnesses examined by the
prosecution. She has further submitted that the Sessions
Court has erred in acquitting the respondent - accused from
the charges levelled against her. She has further argued
that the prosecution has proved that the respondent has
committed offence under sections 304-B and 498-A of
Indian Penal Code. She has further argued that Sessions
Court has acquitted the respondent accused merely on
some minor contradictions and omissions in the evidence of
the witnesses. She has further argued that the trial court
has erred in not believing the evidence of the investigating
officer who had no reason to implicate the accused falsely in
the case. She has further argued that the offence
punishable under sections 304-B and 498-A of Indian Penal
Code, is made out, however, the same is not believed by the
Sessions Court. She has further argued that though the
prosecution witness has supported the case of the
prosecution, the trial court not believed their evidence and
acquitted the accused erroneously. She has requested to
allow the present appeal.
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
6. Mr.Ghanshyam Amin, learned advocate for the
respondent - original accused has submitted that there is
hardly any substance in the submissions of learned APP.
There is no evidence on record connecting the accused with
the commission of the offence. There are material
contradictions and omissions in the evidence of the
prosecution witnesses. The trial court has rightly
appreciated the evidence on record and held that the
prosecution has failed to prove the case beyond reasonable
doubt and rightly acquitted the accused. He has requested
to dismiss the present appeal.
7. Heard advocates for the respective parties and perused
the impugned judgement and order of acquittal and re-
appreciated the entire evidence on record.
8. Before adverting to the facts of the case, it would be
worthwhile to refer to the scope in Acquittal Appeals. It is
well settled by is catena of decisions that an appellate Court
has full Power to review, re-appreciate and consider the
Evidence upon which the Order of Acquittal is founded.
However, the Appellate Court must bear in mind that in
case of Acquittal, there is prejudice in favour of the
Accused, firstly, the presumption of innocence is available
to him under the Fundamental Principle of Criminal
Jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent Court of
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Law. Secondly, the Accused having secured his Acquittal,
the presumption of his innocence is further reaffirmed and
strengthened by the trial Court.
9. On re-appreciation of the evidence on record, it
appears that it is the case of the prosecution as per the FIR
lodged by the complainant - father of the deceased namely
Chunilal, after the marriage of deceased Alkaben, she was
mentally tortured by persistent demand of money by the
accused for the business of her husband and this demand
was made only by the accused - mother-in-law of the
deceased.
10. The complainant Chunilal Laljibhai has been examined
at Ex.7. he has reiterated the contents of the complaint and
has mainly stated the fact that the accused was demanding
money from the deceased Alkaben and this fact was told by
Alkaben when she visited her parental house. They were
informed about the incident on 10/1/1992. On 31/1/1992
Alkaben expired due to persistent demand by the accused.
11. It is on record in the cross-examination and as
admitted by the complainant that for first time demand of
money was by the accused after six months of the date her
marriage in the month of August, and deceased informed
about the same when she came to her parental house. The
sons of the complainant Nalin and Vijay had obtained loan
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from Ahmedabad Peoples Cooperative Bank, wherein the
father-in-law of the deceased was surety. It is also admitted
in the cross examination that the deceased had never
complained regarding any physical or mental torture by the
accused but only demand of money was made by the
accused for the business of the husband of the deceased.
The complaint which was made by the deceased regarding
demand of money is not placed by the deceased before
father-in-law or husband of the deceased nor before any
member of their caste. The only demand as per the say of
the complainant was Rs.25,000/- to 30,000/- which was for
the business of the husband of the deceased - Pradipbhai.
It is admitted in the cross-examination by the
complainant that before 14/1/1992 in the statement he has
never stated the fact of demand of money.
12. The mother of the deceased Champaben Chunilal has
been examined at Ex.10. She has supported the say of the
complainant and has stated that at the time of
Rakshabandhan when the deceased visited her parental
house, she informed her mother regarding demand of
money by the accused for the purpose of business of
husband of the deceased. On 10/1/1992 they had come to
the house of the deceased at 3.15 PM due to ill-health of
their son-in-law. At that time, father-in-law, mother-in-law
and husband - Pradipbhai and Brother-in-law Hitesh were
pulling the deceased from kitchen to the main room. After
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three days, the deceased expired. She had not uttered a
word due to unconsciousness during that time. She has
also stated that on 10/12/1992 when the police had
recorded statement, she has not mentioned the fact
regarding demand of money and also she is ignorant about
the reason as to why her daughter has consumed poison.
In the cross examination it is admitted that in the
statement before the police recorded on 14/1/1992 for the
first time she has stated regarding demand of money by the
accused except this, she has not stated about the fact
before anybody. It is also admitted that there was no ill-
treatment to her deceased daughter by anybody in the
family but she was not permitted to meet anybody.
13. The brother of the deceased Navinbhai Chunibhai has
been examined at Ex.11 and Vijaybhai Chunibhai has been
examined at Ex.24. They have only stated the fact that the
mother-in-law of the deceased was demanding money for
the business of husband of the deceased Pradip. What is the
reason of consuming the poison is not known to them.
14. Initially investigation was made by Head Constable
Mr.A.R. Pandya who has been examined at Ex.12. He has
recorded statement of parents, brothers of the deceased,
father-in-law, mother-in-law and husband of the deceased
on 10/1/1992. Subsequently, after the death of the
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deceased, the investigation was taken over by the Police Sub
Inspector Mr.Amthabhai Desai who has been examined at
Ex.18. He has admitted that not a single witness has stated
that due to demand of money there was quarrel with the
deceased.
15. Dr.Dilipbhai Manubhai Desai, who performed the
postmortem, has been examined at Ex.27. As per the
postmortem report, the cause of death is due to poisoning
and failure of heart and lungs.
16. Considering the entire evidence which has been
brought on record by the prosecution, it is admitted that the
deceased has died unnatural death within seven months of
her marriage life and the reason behind the unnatural
death of the deceased as alleged by the complainant and his
wife i.e. parents of the deceased is that the deceased was
mentally harassed due to persistent demand of dowry by the
accused. Now whether the demand of money made by the
accused from the deceased for the purpose of business of
the husband of the deceased, as alleged, can be said to be
dowry and the death of the deceased can be considered to
be dowry death or not, is required to be considered.
17. At this stage, definition of "dowry" as per section 2 of
the Dowry Prohibition Act is required to be considered
which reads thus:
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
"dowry" means any property or valuable
security given or agreed to be given either
directly or indirectly:
a. by one party to a marriage to the other
party to the marriage; or
b. by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person;at or before or
any time after the marriage in connection with
the marriage of said parties but does not
include dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies.
Explanation II.-The expression `valuable
security' has the same meaning as in Sec. 30 of
the Indian Penal Code (45 of 1860)."
It is also relevant to consider section 113B of the
Evidence Act:
"113B. Presumption as to dowry death.--When
the question is whether a person has committed
the dowry death of a woman and it is shown
that soon before her death such woman has
been subjected by such person to cruelty or
R/CR.A/814/1996 JUDGMENT DATED: 18/10/2022
harassment for, or in connection with, any
demand for dowry, the Court shall presume
that such person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B, of the Indian Penal Code, (45 of
1860).]"
Considering section 113B, there must be material to
show that soon before the death of the such woman was
subjected to cruelty or harassment for or in connection with
demand of dowry, then only presumption can be drawn that
a person has committed the dowry death of a woman, as
held by G.V. Siddaramesh Versus State of Karnataka,
reported in (2010) 3 SSC 152.
Here in this case, considering the prosecution
evidence, it is nowhere proved on record that the demand
from the deceased Alkaben was for dowry. Nowhere in the
evidence of the complainant - Chunibhai and the mother of
the deceased - Champaben, it has come on record that the
demand by accused was for dowry, but the entire evidence
reveals that the demand was only for the purpose of
business of the husband of the deceased. As such, even if
the case of the prosecution is believed, when there was
demand of money, the demand was not regarding dowry
but it was only for the purpose of business of the husband
of the deceased. As such, the demand of dowry in this case
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has not been proved by the prosecution nor, as stated
hereinabove, presumption under section 113B of the
Evidence Act can be drawn, as no iota of evidence has been
brought on record regarding cruelty for dowry against the
deceased.
18. Now, regarding ill-treatment or cruelty is concerned, as
stated above, no iota of evidence regarding cruelty or ill-
treatment for dowry has been laid down by the prosecution.
The prosecution has alleged regarding cruelty against the
deceased for the offence under section 498A of the Indian
Penal Code and as there is suicide by a married woman
within seven years from the date of her marriage,
presumption under section 113A of the Evidence Act comes
into play. Section 113A reads thus:
"113A. Presumption as to abetment of suicide by a
married woman.
--When the question is whether the commission of
suicide by a woman had been abetted by her husband
or any relative of her husband and it is shown that
she had committed suicide within a period of seven
years from the date of her marriage and that her
husband or such relative of her husband had
subjected her to cruelty, the Court may presume,
having regard to all the other circumstances of the
case, that such suicide had been abetted by her
husband or by such relative of her husband.1[113A.
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Presumption as to abetment of suicide by a married
woman.--When the question is whether the
commission of suicide by a woman had been abetted
by her husband or any relative of her husband and it
is shown that she had committed suicide within a
period of seven years from the date of her marriage
and that her husband or such relative of her
husband had subjected her to cruelty, the Court may
presume, having regard to all the other
circumstances of the case, that such suicide had
been abetted by her husband or by such relative of
her husband."
Explanation.--For the purposes of this section,
"cruelty" shall have the same meaning as in section
498A of the Indian Penal Code (45 of 1860).]
Considered the provisions of section 113 of the
Evidence Act as laid down in the case of Mangat Ram
Versus State of haryana reported in AIR 2014 SC 1782
and considering the evidence of the parents of the
deceased, it is clear that they have specifically stated that
there was no ill-treatment to the deceased and when the
cruelty or ill-treatment is not alleged except the demand of
money by the accused - mother-in-law for the business of
the husband of the deceased, the death of the deceased
cannot be said to be dowry death or there is no abetment to
suicide particularly when when the reason of suicide is not
known to the witnesses. As such, considering the entire
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evidence on record, for the sake of arguments, if the
demand of money by the mother-in-law - accused is
believed, then also the demand was not made at the time of
marriage but the demand was made after six months of the
marriage and also it was for the purpose of the business of
the husband of the deceased. The demand was not for the
accused herself. As such, the demand by the accused
cannot be termed as dowry. Moreover, in absence of iota of
evidence regarding mental and physical torture to the
deceased by the accused, as admitted by the witnesses, the
offence under section 498A and the offence of dowry death
also cannot be said to be proved. Under the circumstances,
considering the evidence on record which has been brought
on record before the trial court, the learned Sessions Judge
has rightly appreciated the evidence on record.
19. Considering the entire evidence on record oral as well
as documentary, we are of the opinion that the prosecution
has failed to prove the case against the accused by leading
cogent and convincing evidence. The judgement delivered by
the Sessions Judge is sound on the aspect of law and facts.
The evidence brought on record by the prosecution before
the trial court has been rightly appreciated by the trial
court. No apparent error on the face of the record is found
from the judgement. The judgement does not suffer any
material defect or cannot be said to be contrary to the
evidence recorded.
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20. It may be noted that as per the settled legal position,
when two views are possible, the judgment and order of
acquittal passed by the trial Court should not be interfered
with by the Appellate Court unless for the special reasons. A
beneficial reference of the decision of the Supreme Court in
the case of State of Rajasthan versus Ram Niwas reported
in (2010) 15 SCC 463 be made in this regard. In the said
case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P.,
(2001) 9 SCC 632 :
"8. The settled position of law on the powers to be
exercised by the High Court in an appeal against
an order of acquittal is that though the High Court
has full powers to review the evidence upon which
an order of acquittal is passed, it is equally well
settled that the presumption of innocence of the
accused persons, as envisaged under the criminal
jurisprudence prevalent in our country is further
reinforced by his acquittal by the trial court.
Normally the views of the trial court, as to the
credibility of the witnesses, must be given proper
weight and consideration because the trial court is
supposed to have watched the demeanour and
conduct of the witness and is in a better position to
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appreciate their testimony. The High Court should
be slow in disturbing a finding of fact arrived at by
the trial court. In Kali Ram V. State of Himachal
Pradesh, (1973) 2 SCC 808, this Court observed
that the golden thread which runs through the web
of administration of justice in criminal case is that
if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is
favourable to the accused should be adopted. The
Court further observed:
"27. It is no doubt true that wrongful acquittals are
undesirable and shake the confidence of the
people in the judicial system, much worse,
however, is the wrongful conviction of an innocent
person. The consequences of the conviction of an
innocent person are far more serious and its
reverberations cannot but be felt in a civilised
society. Suppose an innocent person is convicted of
the offence of murder and is hanged, nothing
further can undo the mischief for the wrong
resulting from the unmerited conviction is
irretrievable. To take another instance, if an
innocent person is sent to jail and undergoes the
sentence, the scars left by the miscarriage of
justice cannot be erased by any subsequent act of
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expiration. Not many persons undergoing the
pangs of wrongful conviction are fortunate like
Dreyfus to have an Emile Zola to champion their
cause and succeed in getting the verdict of guilt
annulled. All this highlights the importance of
ensuring, as far as possible, that there should be
no wrongful conviction of an innocent person.
Some risk of the conviction of the innocent, of
course, is always there in any system of the
administration of criminal justice Such a risk can
be minimised but not ruled out altogether It may in
this connection be apposite to refer to the following
observations of Sir Carleton Alien quoted on page
157 of "The Proof of Guilt" by Glanville Williams,
second edition:
"I dare say some sentimentalists would assent to
the proposition that it is better that a thousand, or
even a million, guilty persons should escape than
that one innocent person should suffer; but no
responsible and practical person would accept
such a view. For it is obvious that if our ratio is
extended indefinitely, there comes a point when
the whole system of justice has broken down and
society is in a state of chaos."
28. The fact that there has to be clear evidence of
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the guilt of the accused and that in the absence of
that it is not possible to record a finding of his guilt
was stressed by this Court in the case of Shivaji
Sahebrao, (1973) 2 SCC 793, as is clear from the
following observations:
"Certainly it is a primary principle that the accused
must be and not merely, may be guilty before a
court, can be convicted and the mental distinction
between 'may be' and 'must be' is long and divides
vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals
against the order of acquittal must keep in mind
the following propositions laid down by this Court,
namely, (i) the slowness of the appellate court to
disturb a finding of fact; (ii) the noninterference
with the order of acquittal where it is indeed only a
case of taking a view different from the one taken
by the High Court."
8. In Arulvelu and another versus State
reported in (2009) 10 Supreme Court Cases 206,
the Supreme Court after discussing the earlier
judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to
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the definite conclusion that the appellate court
should be very slow in setting aside a judgment of
acquittal particularly in a case where two views
are possible. The trial court judgment can not be
set aside because the appellate court's view is
more probable. The appellate court would not be
justified in setting aside the trial court judgment
unless it arrives at a clear finding on marshaling
the entire evidence on record that the judgment of
the trial court is either perverse or wholly
unsustainable in law."
21. As observed by the Hon'ble Supreme Court in the case
of Rajesh Singh & Others vs. State of Uttar Pradesh
reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State
of Madhya Pradesh reported in (2011) 6 SCC 394, while
dealing with the judgment of acquittal, unless reasoning by
the learned trial Court is found to be perverse, the acquittal
cannot be upset. It is further observed that High Court's
interference in such appeal in somewhat circumscribed and
if the view taken by the learned trial Court is possible on the
evidence, the High Court should stay its hands and not
interfere in the matter in the belief that if it had been the
trial Court, it might have taken a different view.
22. Scope of appeal against acquittal is well laid down in
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case of Chandrappa and ors. vs. State of Karnataka
reported in (2007) 4 SCC 415, it was observed:
"42. From the above decisions, in our
considered view, the following general
principles regarding powers of appellate Court
while dealing with an appeal against an order
of acquittal emerge;
(1) An appellate Court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded;
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on
exercise of such power and an appellate Court
on the evidence before it may reach its own
conclusion, both on questions of fact and of
law;
(3) Various expressions, such as, 'substantial
and compelling reasons', 'good and sufficient
grounds', 'very strong circumstances',
'distorted conclusions', 'glaring mistakes', etc.
are not intended to curtail extensive powers of
an appellate Court in an appeal against
acquittal. Such phraseologies are more in the
nature of 'flourishes of language' to emphasize
the reluctance of an appellate Court to
interfere with acquittal than to curtail the
power of the Court to review the evidence and
to come to its own conclusion.
(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly,
the presumption of innocence available to him
under the fundamental principle of criminal
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jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court."
23. Considering the aforesaid facts and circumstances of
the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, no case is made out to
interfere with the impugned judgment and order of
acquittal.
24. In view of the above and for the reasons stated above,
present Criminal Appeal deserve to be dismissed and is
accordingly dismissed.
(S.H.VORA, J)
(RAJENDRA M. SAREEN,J)
R.H. PARMAR
