Gujarat High Court
State Of Gujarat vs Harshadbhai @ Hanso Manibhai Somabhai ... on 19 June, 2024
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R/CR.A/1525/2009 JUDGMENT DATED: 19/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1525 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ?
No
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
No
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
HARSHADBHAI @ HANSO MANIBHAI SOMABHAI KHANT & ORS.
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Appearance:
MR.CHINTAN DAVE, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/06/2024
ORAL JUDGMENT
1. This appeal is filed by the State of Gujarat challenging
the judgment and order of acquittal dated 20-04-2009
passed by the Learned Additional Sessions Judge, Fast
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Track Court No.5, Kheda at Nadiad in Sessions case No.
09 of 2009, whereby the respondent-accused came to be
acquitted for the offence punishable under section 306,
498 A read with section 114 of Indian Penal Code, 1860
(hereinafter referred to as the IPC).
2. It is the case of the prosecution that, daughter of the
complainant namely Nayanben was married with the
accused No.1 namely Harshadbhai @ Hanso Manibhai
Somabhai Khant 6 years ago from the date of the
incident. Out of their wedlock, she gave birth to one
daughter and after the birth of daughter, she was thrown
out from the matrimonial house by the husband after
being assaulted. On inquiring, daughter had informed the
complainant that the husband was demanding money,
and on that ground she was being tortured by all the
accused. The complainant has given an amount of
Rs.20,000/- and she was sent back to the matrimonial
house with an understanding that no further harassment
would be caused by her in-laws. On 17-06-2008 at around
9.30 in the morning complainant was informed that,
daughter hanged herself on the hooks fitted on the
ceiling at the matrimonial house and the complainant and
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his wife were informed to reach immediately. With the
aforesaid allegation, the FIR being I-CR No.88 of 2008
came to be registered for the alleged offence against
husband, brother-in-law and mother-in-law.
2.1. On setting the criminal law in motion, investigation
commenced. The statement of eye witnesses were
recorded and the documentary evidences were collected,
thereafter chargesheet came to be submitted before the
learned competent court. As the aforesaid case was
triable by the learned Court of Sessions, same was
committed to the learned Sessions Court and numbered
as sessions case No.9 of 2009. Learned trial court has
framed the charges below Exh.4 and recorded the plea of
accused below Exh. 5 to 7 wherein the accused pleaded
not guilty and claimed to be tried. To substantiate the
charge, prosecution has examined 8 witnesses and
produced 13 documentary evidences and filed the closing
pursis below Exh.34, thereafter further statement under
section 313 of the Criminal Procedure Code, 1973
(hereinafter referred to as the Cr.P.C.) came to be
recorded and all incriminating material put before all the
accused. In further statement, accused pleaded false
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implications and prayed to be acquitted.
2.2. After considering the material placed and arguments
advanced by the learned advocates for the respective
parties, learned trial court has acquitted all accused for
the offence alleged, which is subject matter of challenge
before this Court.
3. Heard learned APP Mr.Chintan Dave for the State and
though rule is served no one has represented accused
No.1 and 3 and during the pendency of the appeal,
respondent No.2 expired, therefore, appeal was abated
qua respondent No.2 namely Maniben.
3.1. Learned APP Mr.Dave has submitted that, though
prosecution has established the case beyond reasonable
doubt, learned trial court has acquitted the respondent-
accused without any cogent reasons. Learned APP
Mr.Dave submitted that, though prosecution has proved
that, the money which was demanded was provided by
the complainant, the learned trial court did not believe
the case on the ground that, the aforesaid amount was to
meet with the household expenses of the matrimonial
house. Learned APP Mr.Dave submitted that, though
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marriage span of the deceased was below 7 years and
the presumption under section 113(A) of the IPC is
available. Learned trial court has without considering the
presumption, acquitted the respondent-accused from the
charges.
3.2. Learned APP Mr.Dave submits that, though the
prosecution has proved it's case by leading the evidence
of the complainant below Exh.19, the mother below
Exh.21, witnesses below Exh.22 and 23, no major
discrepancies were found during the cross examination
which may falsify the case of the prosecution, learned
trial court has acquitted the respondent-accused from the
charges. Learned APP Mr.Dave submits that, minor
discrepancies were given much weightage by the learned
trial court while acquitting the respondent-accused
without any cogent reasons and therefore the appeal
deserves to be allowed and accused are required to be
convicted for the offence alleged.
4. Considering the submissions made by the learned APP
Mr.Dave and record and proceedings of the learned trial
court, it transpires that prosecution has proved the
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unnatural death of the daughter of the complainant by
the evidence of the medical officer who was examined
below Exh.10 namely Dr.Giriraj Lalabhai Chauhan who
conducted the autopsy of the deceased. From the
aforesaid evidence it comes on the record that, there
were no external injuries on the body of the deceased
and the cause of death was due to Asphyxia i.e. death
due to hanging.
5. To prove the case for the offence punishable under
section 306 read with 107 of the IPC, prosecution has
examined the complainant I,e, father of the deceased
below Exh.19 and the mother of the deceased below
Exh.21. On the examination of the above witnesses it
transpires that, marriage of the deceased was
solemnized prior to 6 years with the accused No.1, one
daughter namely Hinaben was born out of the wedlock
and she was staying with the husband, mother-in-law and
brother-in-law. Deceased was repeatedly sent to the
house of the parents to collect money. On one occasion
she was sent with a demand of Rs.50,000/- and as the
complainant could only arrange the amount of
Rs.20,000/- the complainant had given the said amount
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and assurance was given by the in-laws that now no
harassment would be caused to the deceased. On the
faitful day of 17-06-2008, she committed suicide by
hanging herself and thereafter FIR came to be lodged.
5.1. During the cross examination of the above said
witnesses, it comes on the record that, prior to the
marriage with accused No.1, previously the daughter was
married with another person and had taken divorce. She
was remarried with accused No.1. It was admitted by the
father that, for 2.5 years there was no harassment at the
hands of the accused persons and even on the date of
the deposition also, witness was searching for the real
reason for the suicide of the daughter. The amount which
was provided was borrowed from the teacher of the
village namely Sursangbhai and the same was given for
the purpose of fitting the door in the house of the
deceased. Prior to that there was no door in the house. It
is admitted by the father that repeated demands and
harassment was not stated in the complaint or the
statement recorded before the police. The FIR which was
produced before the learned trial court was exhibited
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below Exh.20. From the cross examination of the mother,
it comes on record that, at the time of borrowing the
amount, an assurance was given that on the maturity of
Fixed deposit the amount will be returned back.
Prosecution further examined the brother namely
Jagdishbhai Manubhai below Exh.22, uncle of the
deceased Bhagvanbhai Bhikhabhai below Exh23, sister-
in-law of the deceased namely Kusum below Exh.24, they
reiterated the same facts as stated by the parents of the
deceased.
5.2. Prosecution further examined the PSO of Nadiad Rural
Police Station namely Arunaben Madhusudan below
Exh.25 who recorded the FIR and made entry in the
station diary. Lastly, the prosecution has examined the
Investigating Officer namely Manjibhai Malabhai Chauhan
below Exh.27 from whose evidence it comes on the
record that prior to the registration of FIR, Janvajog was
given by the husband-accused No.1 which was registered
as accidental death No.15 of 2008. The aforesaid
Janvajog entry was produced below Exh.33, wherein
husband had informed that previous night wife has
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offered meal which was not taken by the husband and in
the early morning he left the house in the rickshaw for his
business and due to the same, the wife has committed
suicide. It is stated by the husband-accused No.1 that, he
is running his rickshaw in school Vardi. The investigation
officer further produced the report of the forensic science
laboratory and during the cross examination, it came on
record that, no witnesses stated before me that there
was harassment at the hands of the in-laws, and on
committing suicide, the husband immediately informed
the police.
6. The provision of section 107 & 306 for which the accused
were tried is produced hereinbelow:
Section 306 - Abetment of suicide.-
If any person commits suicide, whoever abets the
commission of such suicide, shall be punished
with imprisonment of either description for a
term which may extend to ten years, and shall
also be liable to fine.
Section 107 - Abetment of a thing
A person abets the doing of a thing, who:
1. Instigates any person to do that thing; or
2. Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
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if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the
doing of that thing; or
3. Intentionally aids, by any act or illegal omission,
the doing of that thing.
7. Considering the above provisions, it reveals that, the
prosecution has to establish the positive act on the part
of the accused to instigate or aid in committing suicide
and there has to be clear mens rea to commit suicide.
From the evidence placed on record by the prosecution, it
comes on record that there was no active or direct act
which leads the deceased to commit suicide. The demand
of amount appears to be for the installation of the door in
the house. From the evidence of the mother, it comes on
record that, the assurance was given by the husband that
on maturity of the fixed deposit the amount would be
repaid. Except this one incident, no other incident was
placed on record by the prosecution to prove the case of
harassment. The conduct of the husband also appears to
be natural as, on committing suicide, the accused No.1
immediately informed the police officer and gave the
Janvajog and his statement which was exhibited below
Exh.33 reveals that there was minor wear and tear of the
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marriage life. It is true that the marriage span of the
deceased was below 7 years and the presumption under
section 113(A) of the Evidence Act would come into play,
but the presumption in itself would not be an evidence
but only meet the prima facie case for the prosecution in
whose favour it exists. As the word used in section 113(A)
of the Evidence Act is "may presume". The relevant
section is reproduced hereinbelow:-
S. 113 A - 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."
S. 4 - "May presume".
Whenever it is provided by this Act that the Court may
presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it.
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8. A Court, where it "may presume" a fact, as a discretion to
presume it as proved or to call for the confirmatory
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evidence of it, as the circumstances require, in those
cases presumption is not hard and fast presumption
incapable of rebuttal. The prosecution first has to prove
its case beyond reasonable doubt and only then
presumption under section 113 A of the Evidence Act
would come into force. It transpired that previously
marriage of the deceased was solemnized with the other
person and after taking divorce prior to 3 years, she
married to the accused No.1. From the evidence of the
father, it comes on record that for 2.5 years there were
no harassment and on one occasion, an amount of
Rs.20,000/- was provided by the complainant to the
accused person. From the evidence of the brother and
sister-in-law no specific incident was mentioned and
there appears to be general allegations against the in-
laws. Learned trial court acquitted the respondent-
accused from the charges and this court finds no infirmity
or illegality in the impugned judgment and order of the
acquittal.
9. This Court has considered the ratio laid down by the Apex
Court while considering that this being an acquittal
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appeal, as per the law laid down by the Apex Court in
case of Chandrappa and others vs. State of
Karnataka, reported in (2007) 4 SCC 415 wherein
the general principles were laid down regarding the
powers of the Appellate Court while dealing with the
appeal against an order of the acquittal, which are
reproduced hereinbelow:
"(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
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favour of the accused. Firstly, the presumption of
innocence 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 law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court."
10. In view of overall circumstances, this court deems it fit
not to interfere with the impugned judgment and order of
acquittal dated 20-04-2009 passed by the Learned
Additional Sessions Judge, Fast Track Court No.5, Kheda
at Nadiad in Sessions Case No. 09 of 2009 needs no
interference.
11. Resultantly, the present appeal is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
