VIJAYKUMAR KRASHNALAL PATHAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal under Sec.374(2) of the Code of Criminal Procedure has been filed by the appellants-original accused being aggrieved by the judgment and order dated 18-1-2008 passed by the learned Additional Sessions Judge, Dhrangadhara, in Sessions Case No.6 of 2007 whereby both the accused were convicted and sentenced to suffer RI for a period of seven years and to pay fine of Rs.2000/-, in default, to suffer further RI for one year for the offence punishable under Sec.306 of IPC; RI for a period of three years and to pay fine of Rs.1000/-, in default, to suffer further RI for six months for the offence punishable under Sec.498-A read with Sec.114 of IPC and also to suffer RI for one year and to pay fine of Rs.500/- in default, to suffer further RI for three months for the offence punishable under Sec.4 of the Dowry Prohibition Act. All the substantive sentences were ordered to run concurrently. The accused were given set off under Sec.428 of Cr.P.C. for the period undergone in jail.

(2.) CASE in short is that a complaint was filed by the complainant-Ashokkumar Thakar before Dhrangadhra Police Station alleging inter alia that his daughter committed suicide on 19-7-2006 due to ill-treatment and harassment meted out by the appellants, who are husband and mother-in-law of the victim respectively. Pursuant to the said complaint, police started investigation, drew panchnama of scene of incident and at the end of investigation, filed charge sheet against the appellants-accused for the offences punishable under Secs.306, 498(A) and 114 of IPC read with Sec.4 of Dowry Prohibition Act. As the offence was Sessions Triable case, the learned Magistrate committed the case to the Court of Sessions. Charge was framed against the accused on 2-6-2007 at Ex.8. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the guilt against the accused, prosecution examined in all 12 witnesses and has produced and relied upon several documentary evidence such as complaint Ex.26, injury certificate of appellant No.1 at Exs.38 and 44, AD entry at Ex.47 etc. On submission of closing pursis at Ex.56 by the learned APP, the accused sought to examine four witnesses in their defense at Exs.63,64,59 and 61. Thereafter, further statements of the accused under Sec.313 of Code of Criminal Procedure were recorded in which the accused have denied all the charges. Thereafter, on affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment convicting and sentencing the appellants as aforesaid in the earlier part of this judgment giving rise to prefer the present appeal.

(3.) AS regards accused No.2, who is mother of the accused No.1, is concerned, it is submitted by Mr.Dagli that it has come on record that appellant No.2 was staying separately with her husband at Sanosara Village which is 52. km away from the place of incident since last 6-8 months of the incident and husband of accused No.2 was doing 'Yajman Vruti'. This aspect has not been considered by the trial court and committed error in coming to the conclusion that all the defense witnesses are got up witnesses and to escape from criminal liability, a false story was put up by the accused. It is further submitted that the trial court ought to have independently examined the evidence as far as the appellant Nos.1 and 2 are concerned. It is therefore submitted that the charge for the offences punishable under Secs.498(A) or 306 are not proved against the accused No.2. AS regards the charge under the Dowry Prohibition Act, it is submitted that there is nothing on record to indicate that the accused No.2 have ever demanded any dowry either before marriage or after the marriage. It is also further submitted that the trial court has failed to appreciate all these aspects and erred gravely in passing the impugned judgment and order of conviction and sentence against her. It is therefore urged that the impugned judgment and order be quashed and set aside qua the appellant No.2 and she may be acquitted of the charges levelled against her. Mr.Dagli has relied on the following reported decisions: