STATE OF GUJARAT Vs. BAROT PRAVINBHAI HAMIRBHAI

JUDGEMENT

(1.) The present appeal is filed under Section 377 of the Code of Criminal Procedure against the judgement and order of acquittal dated 20.11.1993 passed by the Ld. Judicial Magistrate First Class, Kalawad in Criminal Case No. 625 of 1992. The accused were husband-Pravinbhai Hamirbhai of the complainant, accused no.2 - Danabhai Hamirbhai was `Jeth' (elder brother of the husband) & accused no.3 - Amrutben wife of Danabhai Hamir is `Jethani' (wife of elder brother of the husband). The accused were charged for the offences under Section 498-B, 333, 504, 506(2) read with Section 114 of the Indian Penal Code and also Section 3 of Dowry Prohibition Act, 1961. The prosecution examined Sudhaben, wife of Anilkumar as PW1. She deposed that she knew the accused being the elder brother of my husband. She has also stated that they all were residing in the said locality at Kalavad. She has also deposed that Ushaben had gone to Porbander for "celebrating Agiyaras" (a religious ceremony). She has further deposed that Pravinbhai was keeping Ushaben very well. The prosecution has then examined Manilal Bhimji as PW2 who is cousin of the complainant. In his cross-examination he has stated that the complainant was married to the accused no.1 before 4 years. The complainant did not have any grief or harassment from the accused. Before the complaint was filed, the deponent had come to Kalawad and had taken the complaint. He has further deposed that he was called by Dana Hamir (elder brother of the husband of the complainant) to pay the sum of Rs.2000.00 which Dana Hamir owed to the deponent. At that time, the complainant was at Kalawad at her in-laws place. He had met the complainant (Ushaben) as her brother had told that if the complainant wanted to visit her parents place she may be brought. The deponent informed the complainant-Ushaben about the same. She expressed her willingness. Danabhai and Praveenbhai willingly allowed Ushaben to go with the deponent. The deponent took Ushaben to Porbander. What is important is that, the deponent has stated that, `on the way to Porbander, the complainant did not make any complaint about the grief or harassment to her.'

(2.) The prosecution then started with the deposition of the complainant-Ushaben wife of Praveen Hamir. During her chief, after the deponent deposed that she has studied upto 7th Standard, that she was being harassed at her in-laws place, that she was writing letters to her parents. The Additional Public Prosecutor sought an adjournment to get the original letters and the same was granted. What follows is important that after the said adjournment, the complainant has not remained present before the Court. The other witnesses mentioned in the charge sheet were issued summons but the witnesses have not remained present before the Court. The accused have remained present before the Court on all the dates. As the prosecution was not able to keep the witnesses present, the Learned Judge was pleased to close the oral evidence. The Learned Judge then proceeded with the judgement on 20.11.1993. The Learned Judge has recorded the details of the evidence given by the two witnesses of the prosecution which were examined. It is also recorded that despite giving sufficient opportunity and the Court having taken sufficient care by issuing summons, the witnesses have not remained present. The Additional Public Prosecutor also made an attempt by sending Yadi to the witnesses to remain present by of no avail. The Court was, therefore, constrained to pass the order at Exh.22 for closure of evidence. The Court has recorded that Sudhaben who is `Derani' (wife of younger brother of husband) has deposed that the complainant did not have any grief or harassment and that the accused were not demanding any dowry. In view of that, the Learned Judge recorded the finding that, `the charge is not proved.'

(3.) Mr.K.T.Dave, Additional Public Prosecutor assailed the judgement and order of the Ld. JMFC, Kalawad by saying that the judge was not alive to the seriousness of the offence with which the accused were charged. Mr.Dave submitted that the Ld. Judge ought to have taken necessary steps to secure the presence of the witnesses before the Court and ought to have examined the truth in the complaint filed by the complainant. He also submitted that the Ld. Judge has taken a casual approach in the matter.