JIGNESHBHAI MANSUKHBHAI ZALAWADIA Vs. SHAILESHBHAI MANUBHAI SOJITRA

JUDGEMENT

(1.) BY way of this application under Section 378(4) of the Code of Criminal Procedure, 1973 ("the Code" for short), the applicant (original complainant) has sought leave to appeal against the judgment and order of acquittal dated 25.05.2012, passed by the learned Sessions Judge, Surat, in Sessions Case No.237 of 2007.

(2.) BRIEFLY stated, the case of the prosecution, based upon the complaint dated 19.07.2007, (Ex.16) is as follows: The complainant, Jigneshkumar Mansukhbhai Zalawadia, who is the present applicant, is the brother of deceased Chetnaben. He lodged a complaint with Kapodra Police Station which was registered as IC.R.No.399 of 2007. The allegations made in the complaint are that the marriage of his elder sister, Chetnaben, (hereinafter referred to as "the deceased") and respondent No.1 (original accused) was solemnized on 11.02.2007, in accordance with the customs and rites of their caste. After marriage, the deceased resided at her matrimonial home, whereas respondent No.1 resided at Surat, where he was engaged in the business of marketing embroidery machines. Respondent No.1 frequently visited his matrimonial home at Village Khilavad, where the deceased resided. The allegation is that respondent No.1 used to pressurize the deceased to make arrangements for an amount of Rs.5 to 6 lakhs from her parents, as such amount was required by him for business purposes, at Surat. According to the complainant, his sister informed them about this demand when she visited her parental house. Respondent No.1 is stated to have told the deceased that if this amount is not given, she would have to undergo a great deal of mental torture. In order to ensure a happy married life for his sister, the complainant obtained loans of Rs.2 lakhs from his uncle Ukabhai Nanjibhai (PW5) and Rs.80,000/ from another uncle Kanubhai Vallabhbhai (PW6), respectively. The applicant himself put in an amount of Rs.1.20 lakhs and, in all, collected Rs.4 lakhs and gave it to respondent No.1. Thereafter, respondent No.1 went to reside with the deceased in Mansarovar Shivdhara Society at Surat. They resided there for about 2 1/2 months before the incident occurred. About 25 days prior to the date of the incident, when the complainant inquired about the health of the deceased, she informed him that respondent No.1 was harassing her by saying that he wanted to marry another girl, and did not want her. It is alleged that respondent No.1 asked the deceased to divorce him or to die, otherwise, he would kill her and in this manner clear his path. The applicant consoled and assured the deceased by saying that respondent No.1 would improve and she should have patience. Thereafter, whenever the complainant called the deceased, she used to inform him that respondent No.1 was continuously subjecting her to mental torture. The deceased was enduring this treatment with a view to maintaining her married life. About ten days prior to the incident, Dilip, the elder brother of the complainant and his younger sister Reena, had gone to fetch the deceased from Surat. Respondent No.1 told Dilip that he has committed a mistake in harassing the deceased which would not be repeated thereafter. Upon this assurance, the elder brother and younger sister of the complainant returned to their village without taking the deceased with them. Even thereafter, they used to telephone the deceased everyday and learn that respondent No.1 was still harassing her. Ramilaben, the mother of the deceased, had even asked Champaben, mother of respondent No.1, to go to Surat to talk to her son, about four days prior to the incident. An assurance was given by Manubhai, father of respondent No.1, that they need not worry and, if need be, he would sell his land and building, but no harm would come to the deceased. He also assured them that he would send his wife to Surat the next day. Thereafter, Champaben informed Ramilaben that she would go to Surat after three or four days, when the agricultural work was over. A day prior to the filing of the complaint, Dilip, the elder brother of the deceased, telephoned the complainant in the afternoon between 11:00 to 12:00 hours and informed him that the deceased had committed suicide, by hanging herself. The complainant, along with his parents, uncles and other relatives, went to Surat. They first went to the hospital and then to the Police Station and lodged the compliant, which was registered as I.C.R.No.399 of 2007, for offences punishable under Sections 306 and 498A of the Indian Penal Code ("IPC" for short) and Sections 3 and 7 of the Dowry Prohibition Act, 1961 ("the Dowry Act" for short).

(3.) MR .Prakash G.Pandya, learned advocate for the applicant, taken the Court through the depositions of the prosecution witnesses and other documentary evidence, and has submitted that clear evidence of dowry demand emerges from the record. The prosecution witnesses have all supported the case of the prosecution. It is submitted that the applicant had paid an amount of Rs.4 lakhs to respondent No.1 by borrowing Rs.2 lakhs from his uncle Ukabhai Nanjibhai (PW 5) and Rs.80,000/ from his uncle Kanubhai Vallabhbhai (PW6). The applicant had put in the remaining amount of Rs.1.20 lakhs from his own pocket. It is further submitted that the deceased was subjected to mental cruelty by respondent No.1 who told her that he did not like her and wanted to marry some other girl. He used to tell the deceased that she should commit suicide, failing which he would kill her. It is further submitted that the marriage span of the deceased was only five months and the post mortem report revealed that she was carrying a pregnancy of five to seven weeks. It is submitted that there is overwhelming evidence against the accused to bring home the charge of cruelty and abetment to suicide, in addition to the demand for dowry. It is further submitted that the Trial Court has not considered the evidence on record in proper perspective, which has resulted in an erroneous finding of acquittal. It is urged that the present is a fit case in which this Court ought to grant leave to appeal.