RANJANBA HARENDRASINH GOHIL v. HARENDRASINH HARVIJAYSINH GOHIL

Police Officer upon the order passed by the trial Court u/s 156 of the Code of Criminal Procedure, 1973 and the charge sheet was filed against the respondent Nos.1 to 3.

7.(cid:9)The evidence of the present applicant was recorded at exh.27. Deposition of the father of the present applicant is recorded at Exh.32 and two witnesses have also been examined by the complainant namely Anopsinh Sajubha Exh.36 and Amarsinh Bhikhubha Exh.37. Two panch witnesses have also been examined at exh.38 and

40. Panchnama is produced at Exh.39. Thereafter, two more witnesses were examined by the complainant namely Jayvantsinh Ravubha at exh.41 and Keshavbhai Tejabhai at Exh.45.

8.(cid:9)Learned advocate for the applicant has pointed out that the trial Judge has not properly appreciated the deposition of the present applicant at Exh.27 and the deposition of father of the applicant at Exh. 32. It is also submitted by the learned advocate for the applicant that from the deposition of the present applicant and her father, it is proved that the respondent Nos.1 to 3 were demanding dowry and they were imparting physical and mental cruelty to the present applicant. This is how the offences punishable u/s 6 and 7 of the Dowry Prohibition Act, 1961 and u/s 498A of the I.P. Code has taken place. This aspect of the matter has not been appreciated by the trial Court and therefore the order passed by the trial Court deserves to be quashed

9.(cid:9)It is submitted by the learned advocate for the applicant there were two letters dated 5-3-1990 and 23-5-1990 written by the present applicant to her father whereupon the father of applicant took custody of the applicant from the house of the husband of the applicant. These two letters corroborate the say of the present applicant as to demand of dowry and physical and mental cruelty imparted by the respondent Nos.1 to 3. Learned trial Judge has also not appreciated the deposition of Anopsinh Sajubha Exh.36 and deposition of Amarsinh Bhikhubha Exh.37. The depositions of these two witnesses make it implicitly clear that there was demand of dowry and physical and mental harassment by the respondent Nos.1 to 3. It is also submitted by the learned advocate for the applicant that several items were given in dowry at the time of marriage ceremony of the present applicant with the respondent No.1 and the same have not been returned to the present applicant and this also tantamounts to cruelty. The learned trial Judge has also not appreciated this aspect of the matter and therefore the order passed by the trial Court deserves to be quashed and set aside. Learned advocate for the applicant has relied upon the following authorities in support of her case. (cid:9)i.(cid:9)(1991) 1 SCC 371 (cid:9)ii.(cid:9)1992 Criminal Law Journal 111 (cid:9)iii.(cid:9)AIR 1994 SC 1418 (cid:9)iv.(cid:9)1995 Criminal Law Journal 340 (cid:9)v.(cid:9)AIR 1999 SC 1491 (cid:9)vi.(cid:9)AIR 1999 SC 2071

10.(cid:9)Learned A.P.P. for the State submitted that no appeal is preferred by the State against the order passed by the trial Court. None the less, he has adopted the arguments advanced by the learned advocate for the applicant and submitted that the order passed by the trial Court is just, legal and correct and does not required to be interfered with by this Court.

11.(cid:9)Learned advocate for the respondent Nos.1 to 3 mainly submitted that there is no infirmity, illegality or error of facts or error of law in the order passed by the trial Court. There is neither perversity nor jurisdictional error in the order passed by the trial Court. On the contrary, the order of the trial Court is true, correct and in consonance with facts and law and is passed on proper appreciation of the depositions of the witnesses and evidence on record and requires no interference by this Court in exercise of revisional jurisdiction conferred upon this Court. Learned advocate for the respondent Nos.1 to 3 submitted that the marriage of the present applicant with the respondent no.1 was solemnized in the year 22-6-1985 and there was birth of child, out of wedlock between the applicant and the respondent No. 1. He has also submitted that the father of the applicant took custody of the applicant on 30-5-1990 and at much belated stage i.e. on 27-9-1995 before the J.M.F.C., Bhavnagar allegations of demand of dowry and physical and mental harassment by the respondent Nos.1 to 3 were made by the applicant. Time gap lapsed from 30-5-1990 since when the present applicant was residing at her parental house continuously and 22-9-1995 i.e. date of the complaint is so much that it creates bar to take cognisance by the trial Court as per the provisions of Section 468 of the Code of Criminal Procedure more particularly Section 468 (2) (c) of the Code of Criminal Procedure, 1973. It is submitted by the learned advocate for the respondent Nos.1 to 3 that imprisonment for the offence punishable u/s 6 and 7 of the Dowry Prohibition Act, 1961 is provided for maximum two years whereas sentence is provided for the offence punishable u/s 498A of the I.P. Code is three years. He has also submitted that as per the provisions of Section 468 of the Code of Criminal Procedure, period of limitation is three years. In the present case, admittedly the complaint - present applicant was residing at her parents' house on and from 30-5-1990 and the complaint was filed at much belated stage i.e. on 22-9-1995 i.e. after period approximately period of 5 years and 4 months. The applicant has alleged as to demand of dowry and physical and mental cruelty imparted by the respondent Nos.1 to 3 which creates statutory bar for the trial Court in taking cognizance. Apart from this aspect of the matter, it is vehemently argued by the learned advocate for the respondent Nos.1 to 3 that there was no demand of dowry by the respondent Nos.1 to 3 but at the time of marriage ceremony whatever articles were given by the parents of the complainant have been returned and this fact has also been admitted by the complainant in her deposition at Exh.27 and this aspect of the matter has also been discussed in paragraph No. 7 of the order passed by the trial Court.

12.(cid:9)It is also contended by the learned advocate for the respondent Nos. 1 to 3 that the letters which are produced by the complainant at the time of her deposition were never given to the police at the time of investigation of the offence. No witness from the post office has been examined by the prosecution and therefore the said letters cannot be relied upon and the said letters were never the part and parcel of the record of investigation of the case. Looking to the deposition of the complainant, several factual aspects of the matter have been mentioned by the complainant, e.g. example the present applicant made complaint before the Mahia Institution but when she was asked to produce the copy of the said complaint during her cross-examination, she has categorically stated that she does not want to produce the copy of the said complaint. Similarly, the complainant has stated that the notice for demand of certain dowry items from the present respondent No. 1 was given but the said notice was not produced by the complainant before the Court. It is also stated by the present applicant in her deposition about physical and mental harassment or cruelty exercised by the respondent Nos. 1 to 3, she has never filed any complaint prior to September, 1995 and after lapse of period of about 5 years and 4 months, the present complainant has preferred the complaint as to demand of dowry and physical and mental harassment imparted by the respondent Nos.1 to 3.

13.(cid:9)Falsehood in the deposition of the complainant is of higher decree than that of truth and is so interwoven that rest of the part of the deposition leads to a conclusion that the complainant is not reliable and trustworthy witness for proving the offences as alleged by the prosecution. In the same manner, the father of present complainant namely Dilavarsinh Dansinh Exh.32 has categorically stated that his daughter i.e. present applicant was residing with him since last more than a decade and he has taken custody of the complainant with effect from 30-5-1990. Thus, on and from 30-5-1990 the present complainant had never gone to the house of the respondent No. 1 i.e. the husband of the present applicant. The complaint was filed on 22-9-1995 alleging that prior to 30-5-1990 there was demand of dowry and there was physical and mental harassment at the behest of, the respondent Nos. 1 to 3.

14.(cid:9)The complainant has also examined Anopsinh Sajubha at Exh.36 and from his deposition Exh.36 nothing against the respondent Nos. 1 to 3 is coming out save and except general allegations without any further details and accuracy. It has been stated by the said witness Exh.36 that the complainant was facing some difficulties after the marriage and there is nothing further than this. Therefore, the said deposition of the said witness Exh.36 is not useful and helpful to the complainant to prove the allegations made against the respondent Nos. 1 to 3 regarding demand of dowry and physical and mental harassment by the respondent Nos. 1 to 3.

15.(cid:9)The complainant has also examined witnesses Amarsinh Bhikhubha at Exh. 37. This witness states in his deposition Exh.37 that the father of the complainant and this witness Exh.37 were serving together in the Custom Department and there was no talk between him and the father of the complainant Exh.36 in respect of the complainant. The said witness Exh.37 has also deposed that subsequently the father of the complainant had stated that Ranjanba daughter of the witness Exh.36 is not happy, but, reason for her unhappiness was never given or conveyed to him. Therefore, the witness Exh.37 is a hearsay witness and rightly not believed by the trial Court.

16.(cid:9)In the same way, panch witness Amarshibhai Ramjibhai Exh.38 has stated that there was a ready made panchnama at the police station prepared by the police and he had signed the same. Similarly, another panch witness Haresh Vinodray has been examined at Exh. 40 who also corroborates the say of panch witness Exh.38 by stating that when he signed the panchnama at the police station it was a ready made panchnama and he was not aware as to the contents of the panchanama Exh.39. Thus the panchnama Exh.39 is not proved in accordance with law.

17.(cid:9)Thus, looking to the cumulative effect of the depositions of the aforesaid witnesses including the complainant, the charges levelled against the present respondent Nos. 1 to 3 as to demand of dowry and physical and mental harassment imparted by the respondent Nos. 1 to 3 have not been proved and the conclusion arrived at by the trial Court is true, correct and in consonance with facts and law after proper evaluation of the overall effect of all the depositions of the witnesses examined by the prosecution. The view taken by the trial Court is not such that it requires to be quashed and set aside. On the contrary, second view is not possible from what is taken by the trial Court and therefore the present revision application preferred by the present applicant deserves to be dismissed. The State has accepted the judgment and order of the trial court. In support of his arguments, learned advocate for the respondent Nos. 1 to 3 has relied upon the following judgments : (cid:9)i.(cid:9)AIR 1951 SC 196 (cid:9)ii.(cid:9)AIR 1951 SC 316 (cid:9)iii.(cid:9)AIR 2000 SC 297 (cid:9)It is submitted by the learned advocate for the respondent Nos. 1 to 3 that the aforesaid first judgment has also been followed in the subsequent years i.e.