STATE OF GUJARAT Vs. KADIYA BHAGAVANJI MAVJI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and 9th order dated March, 1995 passed by the learned Assistant Sessions Judge, Jamnagar in Sessions Case No.174 of 1993, whereby the accused have been acquitted of the offences punishable under sections 498A and 306 read with section 114 of the Indian Penal Code.

(2.) THE first informant-Mohan Govind Vaghela lodged a first information report before the Jodiya Police Station to the effect that his daughter Jyotsana was married to the accused No.1-Bhagvanji Mavji, who was a resident of village Bodka. The span of her married life was three years and at the time of her marriage, Jyotsana was aged twenty two years. She could not write and she used to stammer slightly of which her in-laws and husband were aware prior to her marriage. After her marriage, Jyotsana had miscarried once and, thereafter, she did not have any other issue. After about one and a half years of her marriage, the accused No.1 had come with Jyotsana to the house of the first informant and told him that he was going to reside at Mumbai and was going to do the work of diamond polishing and was going to keep a house on rent and would take Jyotsana with him to Mumbai. Hence, he told the first informant that he should permit Jyotsana to reside at his house till he makes necessary arrangements to take her to Mumbai. After leaving Jyotsana at his house, his son-in-law had returned to Bodka and, thereafter, gone to Mumbai and about two months thereafter, had returned to Bodka, however, he had not come to fetch the deceased and had not sent any news to them. It was alleged that the deceased had informed him that since she used to stammer slightly, the accused did not like her and used to taunt her and at times, even, beat her. The accused No.1, despite having returned to Bodka from Mumbai, had not come to fetch the deceased and hence, the first informant had talked about the same to the leader of their caste one Premjibhai, resident of village Banugar. Premjibhai had, thereafter, arranged a meeting of the first informant and the accused, however, prior thereto, a settlement had been arrived at between the families and the accused had assured them that the deceased would not be subjected to any kind of harassment on their part. Hence, about seven months prior to the incident, the accused No.1 and 2 had taken the deceased with them to her matrimonial house. Later on, about a month prior to the date of the incident, in view of the disputes which were going on in the house of the accused, the accused No.1 and the deceased had separated from the accused No.2 and 3 and had taken a room on rent nearby and were residing separately, at which point of time his cousins Chhagan Savji and Damji Karshan had visited Bodka. Thereafter, on 2nd August, 1993, viz., the date on which the first information report came to be lodged, in the afternoon at about 12:30, Parshottambhai, the brother of the accused No.2 had come to the agricultural field of the first informant and told him that his daughter had sustained burn injuries while cooking and that he should accompany him to Bodka. Hence, the first informant, his elder brother Chagan Savji, Gangdasbhai, his wife Narmadaben as well as Punjiben and his sister-in-law Kasturben had gone to the house of the accused No.2 at Bodka, where they learnt that Jyotsana had died on account of burn injuries. Hence, the first informant and the other relatives returned home and the first informant lodged the first information report against the accused. It is further alleged that as the accused did not like the first informant's daughter Jyotsana as she used to stammer, they had subjected her to physical and mental harassment, which she could not tolerate and ultimately she had no option but to commit suicide and shorten her life.

(3.) MR . H. K. Patel, learned Additional Public Prosecutor assailed the impugned judgment by submitting that the span of marriage of the deceased was only three years, hence, the presumption under section 113A of the Indian Evidence Act, 1872 would be applicable in the present case. Referring to the deposition of the first informant, it was submitted that he has duly testified that the accused did not like his daughter as she used to stammer and used to taunt her about it and also subjected her to physical and mental harassment. It was submitted that the accused No.1-husband had, under the pretext that he was going to Mumbai, left the deceased at her parental home saying that he would fetch her after making residential arrangement at Mumbai, but despite having returned to Bodka, did not even inform the first informant and the deceased about it. At that time, the deceased had resided at her parental home for one year. It was only after a settlement came to be arrived at between the families that the accused had taken the deceased to their home with an assurance that they would not subject her to mental or physical harassment. According to the learned Additional Public Prosecutor, the fact that the deceased was not taken to her matrimonial home for a period of one year, would itself constitute cruelty. It was submitted that the first informant has duly deposed that there were disputes with regard to work in the matrimonial home of the deceased and that the accused were subjecting her to harassment. Referring to the deposition of Chaganbhai Savjibhai, the brother of the first informant, it was pointed out that the testimony of the first informant is corroborated by the testimony of this witness who has deposed that the accused used to harass the deceased as she used to stammer. The attention of the court was drawn to the examination- in-chief of the said witness to point out that the deceased had complained to him that she was not being given sufficient food. Therefore, cruelty as envisaged under section 498A of the Indian Penal Code has clearly been made out. Moreover, the prosecution has duly proved that the deceased was subjected to mental and physical harassment which she could not tolerate and took the extreme step and committed suicide. Thus, the provisions of section 306 of the Indian Penal Code would clearly be attracted in the facts of the present case. It was, accordingly, urged that the prosecution has duly proved the charges under section 498A as well as under section 306 read with section 114 of the Indian Penal Code and, as such, the learned Judge was not justified in acquitting the accused.