Gujarat High Court
State Of Gujarat vs Anilgiri Pratapgiri on 7 January, 2025
Author: Gita Gopi
Bench: A.S. Supehia, Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 883 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
ANILGIRI PRATAPGIRI & ORS.
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Appearance:
MR UTKARSH SHARMA APP for the Appellant(s) No. 1
MR RAXIT J DHOLAKIA(3709) for the Opponent(s)/Respondent(s) No.
1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The Death Certificate of respondent No.3-Kamlaben
W/o. Pratapgiri Goswami, who died on 18.11.2023, is
produced by learned advocate Mr. Raxit J.Dholakia, which is
ordered to be taken on record. Since, respondent No.3 died,
the appeal qua her stands abated.
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2. The challenge under Section 378(1)((3) of the Code of
Criminal Procedure, 1973 is given to the judgment and order
dated 07.03.2003 passed by the learned Additional Sessions
Judge (Fast Track Court) Jamnagar in Sessions Case No.138
of 2002. The learned Trial Court Judge acquitted the four
accused from the charge under sections 498A, 306, 304B read
with section 114 of the Indian Penal Code, 1860 and sections
3 and 4 of Dowry Prohibition Act, 1961. The learned Trial
Court Judge gave benefit of doubt to the accused while
acquitting them.
3. The case, as alleged against the accused is of dowry
death along with instigation to the deceased for committing
suicide. The marriage of the deceased along with accused
No.1 was performed on 07.04.2002 in a 'Samuh Lagna',
which was organized by the representative of the community.
The allegation, as has been alleged against the accused is of
demanding gold chain and finger ring as a dowry. The charge
at Exh.6 framed on 03.10.2002 notes that the marriage span
was of 18 days and the charge of physical and mental cruelty
has also been framed against all the accused for charging
them under section 498A read with section 114 of I.P.C. The
deceased had committed suicide on 25.04.2002 in the
matrimonial house at about 4.00 in the afternoon, therefore,
against all the accused the charge under section 306 along
with section 114 of I.P.C. has been invoked. Further, since the
marriage span was of 18 days and the deceased had
committed suicide by inflaming herself on 25.04.2002 and the
cause of the suicide is attributed to dowry demand, thus, all
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the accused have been charged under section 304B read with
section 114 of I.P.C.
4. Learned APP Mr. Utkarsh Sharma appearing for the
appellant State submitted that the prosecution need not prove
any of the charges since the presumption under section 113B
of the Indian Evidence Act, 1872 could have been drawn, as
the marriage span is only of 18 days. Learned APP submitted
that the provision in the India Evidence Act, 1872 itself is
sufficient for the prosecution to place in service the case
against all the accused, where further evidence would not be
required. Learned APP further submitted that even otherwise
the evidence of the father as well as the sister along with the
FIR proves on record that the deceased committed suicide
because of the harassment, which amounts to cruelty, as there
was dowry demand from all the family members.
5. Learned APP Mr. Utkarsh Sharma referring to the
evidence of the father as well as the sister submitted that the
deceased immediately, prior to her death, had informed them
about the dowry demand by the accused, which itself would
be sufficient evidence for corroboration on record that the
death was owing to demand made by the accused for the gold
chain and finger ring.
6. Learned advocate Mr. Raxit J.Dholakia appearing for the
respondents accused has submitted that the cause of the
death could not be gathered from the evidence on record,
since there would not be any question of dowry demand, as
the marriage had been performed in 'Samuh Lagna', where
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the parties are bound by the condition of the community
members. Learned advocate Mr. Dholaka has referred to the
documents Exh.26 to 29 on record to fortify the fact that the
conditions for the marriage were known to both the parties,
and has further stated that the community members had given
gifts during the marriage and no further demand could be
made by any of the person, who had consented for the
marriage within the community.
7. Learned advocate Mr. Dholakia has further stated that
the delay of five days in filing the F.I.R. has not been
sufficiently explained. The complaint has not been filed in
Kalavad Police Station while has been given in the office of
Dy.S.P., which also creates doubt since two of the nephews of
the complainant are working in police department at
Jamnagar. Mr. Dholakia further submitted that the deceased
prior to the death had also telephonically called her father,
who could not attain the call and the conduct of the father
itself becomes doubtful when he had not made a further call
in response inquiring from his own daughter the cause of the
call. Mr. Dholaka further submitted that there were many
opportunities to the father within those 18 days to put a
complaint before the community member, if there were any
dowry demand from the family members of the deceased.
8. Learned advocate Mr. Dholakia has also raised concern
about the blood stains, which were found at the place of the
death, and submitted that the police has not made any
investigation regarding the blood stains, which was seen in
the room of the deceased, and further referring to the
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Panchnama has stated that the place, where the deceased
committed had suicide, wherein out of the two doors one was
facing the market. Mr. Dholakia stated that further
investigation could have revealed a detail fact to come to a
conclusion about the cause of committing suicide.
9. We have perused the impugned judgment and order
passed by the learned Trial Court as well as the evidence of
the witnesses. The learned Trial Court Judge has referred to
the evidence of the witnesses. The observation, as recorded
notes that on 25.04.2002, the deceased at about 4.00 in the
afternoon had committed suicide by pouring Kerosene on
herself. The accidental death was recorded as Accident Death
No.11/2002 and the information regarding the incident was
given at 17:30 hours at the Police Station. Initially, the
investigation started for accidental death. The father of the
deceased had visited the Hospital, where P.S.I. Shri Vank and
two other police fellows were present, who had inquired from
the father about the relationship. The learned Trial Court
Judge has observed the conduct of the father being strange,
as though he met the police in the Hospital, he had not
informed about the cruelty, as alleged of dowry demands. The
learned Judge thus, observed that this was the first
opportunity, which was to the complainant Mayagiri to inform
the police about the cause of death, when the prosecution
alleges to be the dowry death. Further, the complaint, which
came to be filed after five days of the incident, could not be
specifically explained. The father in his deposition has
deposed that because of the death of his daughter, he was
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mentally disturbed, therefore, there was a delay of five days.
The learned Judge did not find this explanation to be
believable observing that the incident had taken place on
25.04.2002 and the complaint was given on 29.04.2002 at
17:30 hours before the Dy.S.P. Shri Pande.
10. Learned advocate Mr. Dholakia has submitted that
though the police was available at the Hospital, no complaint
was given by the father. Thereafter too, no complaint has
been given at Kalavad Police Station and directly they had
approached Dy. S.P. Shri Pande, where actually the complaint
was to be recorded before the Police Station. Thus, has been
rightly observed by the learned Trial Court Judge, as non-
explained.
10.1 The father had all the support of the nephews, who were
working in the police department and would have been
informed about the procedure. The learned Trial Court Judge
has also recorded about those facts that it would be very
difficult to accept that the father was not in a mental condition
to give the complaint, where the fatal effect delay in giving
the F.I.R. was very well known to the two nephews, who are
working in the police department.
11. The learned Trial Court Judge has also observed that the
statements recorded by the Kalavad Police Station were not
brought on record and the learned Judge, thus, has noted that
the prosecution has withheld the statement of the
complainant. It is required to be noted that the Accident
Death No.11/2002 was recorded by Kalavad Police Station and
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on the basis of that complaint, the police Shri Vank and other
police had approached the Hospital. The statements of the
father and even the mother had been recorded, but those
statements have not been brought on record, which could
have thrown light on the actual facts stated by the
complainant immediately after the incident, this would create
doubt on the prosecution case.
12. The learned Trial Court Judge has also further observed
that the evidence are only of the family members, while the
incident had taken place at matrimonial house, which is at
Khodiyar, which is a residential area. In spite of that, no
evidence or statement of the neighbours or nearby people
though recorded, have not been shown in the charge-sheet.
Thus, the learned Trial Court Judge has raised suspicion in his
observation regarding the investigation.
13. The sister of the deceased, Daxaben Ratan Giri was
examined as P.W.5 at Exh.31. She in her deposition has stated
about the date of marriage. She stated that on the next day, as
per the customs of the family both, the daughter as well as the
son-in-law were invited to visit the parental house. She has
stated that in the 'Samuh Lagna', the gifts were given. The
deposition notes that the deceased Meenaxiben stated that
her both her parents-in-law had asked for the gold chain and a
finger ring for the son-in-law. The witness also stated that two
younger brothers-in-law had also come to take them back and
they too had also asked this witness that their parents have
demanded gold chain and a finger ring for the son-in-law. She
stated that the bride and the bridegroom had visited her
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house approximately after 12 days of the marriage. She stated
that during the lunch hour, the son-in-law i.e. accused No.1
had also demanded gold chain and a finger ring and
thereafter she came to know that Meenaxi died by inflaming
herself. The witness also stated that she could not tell the
cause of the death.
14. In the cross-examination, she has stated that her father
resides at a distance of 5 to 6 Kms. She was at the parental
house, where both the younger brothers-in-law had come to
take the bride and bridegroom back. The strange thing, which
requires to be noted that, after 12 days of marriage, the
allegation was of demand, which was termed as dowry
demand of gold chain and a finger ring, but from the parental
house neither the father nor the witness Daxaben as a sister
had complained before any community member or any of the
members, who had conducted the 'Samuh Lagna'. The
marriage of witness - Daxaben was also held in 'Samuh Lagna'
earlier. Thus, the sister as well as the father of the deceased
would be well aware about the procedure and the system
adopted by the community for those entering into the
marriage in the community function of 'Samuh Lagna'. The
learned Trial Court Judge has noted this fact and has referred
to the documents at Exh.26 to 29 regarding the conditions of
the community with regard to dowry, where the community is
totally against any such dowry demands. The learned Trial
Court Judge has, thus, rightly observed that, had there been
any dowry demand, there would have been immediate
complaint before the community members.
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15. Further it is required to be mentioned that two nephews
of the complainant are working in the police department. The
statements, which were recorded of the complainant and
others after the Accidental Death Entry No.11/2002, have not
come on record. What was the immediate statements of the
witnesses have not been brought and proved by the
prosecution. The complaint was recorded by Dy. S.P. Shri
Pande, where the corroboration could have been brought on
record by bringing the statements recorded after the
accidental death inquiry. The neighbours, who are residing
near the matrimonial house of the deceased could have
mentioned about the matrimonial relation between the
husband and the wife and the family members, and could have
also described the place of offence, where the girl has
committed suicide. The major lacuna in the investigation is
from where the deceased had procured Kerosene to commit
suicide.
16. The allegation, which has been attributed to the mother-
in-law was that, she had stated to the deceased after the
marriage that if she would stay as a daughter, she would be
happy, but if she would treat herself as a daughter-in-law,
then she would remain unhappy. Such a statement has been
analysed by the learned Trial Court Judge observing that
theses are the words often stated by the mother-in-law at the
time of marriage. It would be necessary to observe that it is
generally customary for the mother-in-law to state expecting
that the daughter-in-law would conduct herself as a daughter
of the family. Such words of the mother-in-law, as rightly
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observed by the learned Trial Court Judge, cannot be
attributed as cruelty after the marriage. And such a bare
instance cannot be considered as forming an act of willful
conduct to drive the woman to commit suicide.
17. The learned Trial Court Judge has referred to the
judgment in case of, State of Gujarat Vs. Sunilkumar
Kanaiyalal Jani, (1996) 2 GLR 797, in regard to the solitary
incident would not bring the said fact into aspect of cruelty or
harassment under section 498A of I.P.C. The learned Trial
Court Judge has relied on the judgment of Sunilkumar
(supra), to observe that:
"Merely the fact that husband was treating the wife with cruelty
would not be sufficient to establish abetment. Prosecution to prove
compelling or alarming circumstances as leaving the victim with
no option but to commit suicide. There must also be knowledge
and intention relating to crime and proximate. The case in general
terms is not sufficient here in this case on the day of the incident,
what was the issue, who initiated the quarrel, in what context both
were quarreling and who was at fault for the quarrel."
18. The statement of the mother-in-law of accepting the
daughter-in-law to conduct herself as a daughter being a
solitary incident and further observing the fact that it is a
customary way of welcoming the daughters-in-law. The
learned Trial Court Judge has rightly not considered the same
as cruelty.
19. Section 113B of the Indian Evidence Act, 1872 deals
with the presumption as to dowry death. It is has been
provided that soon before the death, it should be proved that
the woman had been subjected to cruelty or harassment or in
connection with, any demand for dowry. Then, the Court could
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presume that such person had caused the dowry death. There
must be material on record to show that soon before the death
of the woman, such woman was subjected to cruelty or
harassment, or such cruelty or harassment was in connection
with demand of dowry, then only a presumption can be drawn
that the person has committed offence inducing the deceased
for a dowry death. Reliance can be placed on the case of G.V.
Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152. The
words "soon before" in section 113B of the Indian Evidence
Act cannot be limited by fixing time limit. Such aspect has to
be determined by the Court appreciating the facts and
circumstances on record.
20. It has been very vehemently urged by learned APP Mr.
Sharma that 18 days of marriage span could itself be a
sufficient evidence on record to presume dowry death, but as
observed in the case of Kailash Vs. State of Madhya Pradesh,
AIR 2007 SC 107, such determination is for the Court to
appreciate on the basis of facts and circumstances to conclude
that the deceased was "soon before" the death subjected to
cruelty or harassment for any purpose or in connection with
dowry demand.
21. Here, in the present case, the prosecution has miserably
failed to prove the fact that immediately before the death, the
deceased was subjected to any cruelty. There is no complaint
before any community members or any other members of the
society about the dowry demand or any other cruelty or
harassment, as alleged subjected to the deceased. Though,
the father and the sister of the deceased had opportunity to
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complaint before the community members, however, they had
not preferred to do so. The very fact, which becomes glaring
in the present case is that the statement recorded by Kalavad
Police Station in connection with the accidental death entry
has not been brought on record to corroborate the statements
which had been recorded by Jamnagar Police. The learned
Trial Court Judge, thus, has rightly noted that the prosecution
has failed to discharge the initial onus of proving the cruelty.
22. The learned Trial Court Judge has relied on the
judgment of Basappa Dattu Hegade Vs. State of Karnataka,
1994 Criminal Law Journal 1602, wherein it is held that, the
presumption for abetment of suicide by husband or the
accused can only be drawn when the prosecution has
discharged the initial onus of proving cruelty. The learned
Trial Court Judge has also referred to the judgment in case of
Ravindra Pyarelal Bildan and Others, Vs. State of
Maharashtra,1993 Criminal Law Journal 3019, to observe as
under:
"If cruelty is by itself established and the fact of suicide is also
established; it would not be sufficient to bring home the guilt of
committing cruelty as defined in explanation(a). A reasonable
nexus has to be established between the cruelty and the suicide in
order to make good the offence of cruelty. Alternatively, the
cruelty established has to be of such a gravity as is likely to drive a
woman to commit suicide. If suicide is established, it has further to
be established that it was of sufficient gravity so as to lead a
reasonable person placed in similar circumstances to commit
suicide."
23. The learned Trial Court Judge thus, has rightly referred
to the judgment to observe that a reasonable nexus has to be
established between the cruelty and the suicide in order to
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make good offence of cruelty. Alternatively, it has to be
established that the cruelty meted out to the deceased were
such a grave nature that would have been likely to drive the
woman to commit suicide. Here, the suicide has been
established, but further it was required for the prosecution to
establish that the cruelty alleged was sufficient to consider as
grave to lead her to a circumstance, where the deceased
would have no other alternative except to commit suicide.
Here, this factum of the evidence has not been proved and the
learned Trial Court Judge has rightly appreciated the
provisions of section 304B read with section 113B of the
Indian Evidence Act, where the initial burden of proving the
presumption has not been discharged. Thus, the question of
rebuttal would not arise.
24. Further fact, which goes along with the evidence on
record is the inordinate delay in filing the FIR. The father of
the deceased had enough time to file the FIR. He immediately
had occasion to met the police at the Hospital, but had failed
to give any complaint regarding the dowry demand or the
cruelty, while the report was of accidental death. The fact,
which could draw the attention was that the deceased was
taken to the matrimonial home for the last rites and the
parents had also joined in-laws in the performance of the after
death rituals, which itself shows that the father of the
deceased had no such grievance at that relevant time against
the in-laws of the deceased. All these relevant facts, which
have been brought on record during the trial, could only lead
to the conclusion that the FIR so registered, is an
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afterthought. The facts, as have been alleged, could not be
proved during the course of the trial. The cause of the death,
as stated was on account of dowry demand, could not be
proved nor any cruelty of a grievous nature could be proved
by the prosecution.
25. The learned Trial Court Judge has rightly appreciated
the evidence on record and the acquittal, as has been ordered
by way of the judgment is appropriate. No interference is
required in the judgment of acquittal. Thus, we find that this
appeal lacks merits and hence, the same stands dismissed.
26. In light of the above, the appeal stands dismissed.
Record & Proceedings be sent back to the concerned Trial
Court forthwith.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
Pankaj/2(suppl.I)
