Sharadbhai Jivanlal Vaniya vs State Of Gujarat

SHARADBHAI JIVANLAL VANIYA .... APPELLANT

Versus

STATE OF GUJARAT .... RESPONDENT

O R D E R

1. The appellant was put on trial for commission of the

offence under Sections 498-A and 304-B read with Section

114 of the Indian Penal Code. Additional Sessions Judge,

Rajkot, by judgment dated 22nd of January, 1997 passed in

Sessions Case No.138 of 1991, acquitted the appellant.

Aggrieved by the same, State of Gujarat preferred Criminal

Appeal No. 335 of 1997 and the High Court by the impugned

judgment dated 6th of May, 2004 and 23rd June, 2004 set aside

the order of acquittal and convicted the appellant for offence

under Section 306 of the Indian Penal Code and sentenced

him to suffer rigorous imprisonment for five years. He was

also held guilty of offence under Section 498-A of the Indian

Penal Code and sentenced to undergo rigorous imprisonment

for one and a half years.

2 2. Aggrieved by the same, the appellant has preferred this

appeal.

3. According to the prosecution, appellant had married

Binaben, the daughter of Jaysukhlal about two years before

her death. She was ill-treated by the appellant and his mother

Jayaben for demand of dowry and for that reason on 2nd of

June, 1990, Binaben committed suicide by setting herself on

fire. A case was registered and after investigation, the police

submitted charge-sheet against the appellant. Ultimately he

was committed to the Court of Sessions where he was charged

of offence punishable under Section 498-A and 304-B read

with Section 114 of the Indian Penal Code. The Trial Court on

appreciation of evidence held that there is no evidence of

cruelty or harassment in connection with demand of dowry

and accordingly acquitted him on both the counts. On appeal

by the State, as stated earlier, the High Court reversed

the finding of acquittal and convicted the appellant

as above. While reversing the judgment of acquittal,

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the High Court has relied upon a letter (Ex.-21) written by the

deceased to her sister-in-law. In the said letter, the deceased

has stated that her husband had beaten her and asked her to

take divorce. Further the appellant is pressing hard to leave

the matrimonial home and go to Jamnagar, her parental place.

4. Mr. Nanavati, learned counsel appearing on behalf of the

appellant submits that the letter which forms the basis of

conviction by the Appellate Court was never produced during

the investigation and for the first time produced by the witness

during the course of trial, when she appeared as a witness. It

is submitted that authenticity of the letter in question has not

been proved and hence the appellate Court ought not to have

reversed the judgment of acquittal and convicted the

appellant. In support of the submission, reliance has been

placed on a decision of this Court in Anand Kumar vs. State

of Madhya Pradesh (2009) 3 SCC 799 and our attention has

been drawn to the following paragraph of this judgment :

9. ".... ....Moreover, this letter had not been

produced before the police during the course of the

initial investigation and had been handed over to the

police after several months. This fact, as also a

reading of the letter, indicates that this was a

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concocted piece of evidence and the work of a legal

mind, as no person would write such a letter meeting

all legal requirements for implicating himself and his

near relatives, in a claim for dowry."

It has also been pointed out that view taken by the Trial Court

was one of the possible views which the High Court in appeal

ought not to have reversed.

5. Ms. Jesal, learned counsel appearing on behalf of the

respondent, however, submits that the letter written by the

deceased to her sister-in-law clearly shows cruelty and

harassment due to demand of dowry and the High Court

rightly reversed the order of acquittal to that of conviction.

6. We have bestowed our consideration to the rival

submissions and we find substance in the submission of Mr.

Nanavati and the judgment relied on supports his submission.

7. As observed earlier, the High Court reversed the finding

of acquittal mainly relying on the letter written by the

deceased to her sister-in-law. The said letter was not

produced during the course of investigation and there is

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nothing on record to establish its authenticity. It is produced

by the prosecution only during the course of evidence. In our

opinion, the order of acquittal ought not to have been reversed

relying on unauthenticated letter. We are further of the

opinion that the view taken by the Trial Court while acquitting

the appellant was one of the possible views. In view of what

we have observed above, we feel it unsafe to sustain the

conviction of the appellant and give him the benefit of doubt.

The appellant is on bail. He shall be discharged of his bail

bonds.

8. In the result, the appeal is allowed, impugned judgment

of conviction and sentence is set aside with the direction

aforesaid.

................................................J.

( HARJIT SINGH BEDI )

................................................J.

( CHANDRAMAULI KR. PRASAD )

NEW DELHI,

FEBRUARY 17, 2011.