Gujarat High Court ==================================== vs Chandrashekhar Ratankumar on 6 August, 2014
R/CR.A/776/1999 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 776 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
1 Whether Reporters of Local Papers may be allowed to see NO the judgment?
2 To be referred to the Reporter or not? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment?
4 Whether this case involves a substantial question of law as NO to the interpretation of the constitution of India, 1950 or any order made thereunder?
5 Whether it is to be circulated to the civil judge? NO ====================================
STATE OF GUJARAT….Appellant(s)
MR KL PANDYA, APP for the Appellant(s) No. 1
MR RAJESH M AGRAWAL, ADVOCATE for the
Opponent(s)/Respondent(s) No. 1
MR SUNIL M AGRAWAL, ADVOCATE for the
Opponent(s)/Respondent(s) No. 1
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R/CR.A/776/1999 JUDGMENT CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 06/08/2014
1. Present appeal under Section 378(1)(3) of the Criminal Procedure Code, 1973 (‘the Code’ for brevity) has been directed against judgment and order dated 04/06/1999 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 157 of 1997 whereby, the learned trial Judge was pleased to acquit the respondent herein – original accused from the offences punishable under Sections 498A and 306 of the Indian Penal Code.
2. Heard Mr. K. L. Pandya, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr. Rajesh M. Agrawal, learned advocate for the respondent – original accused.
3. Brief facts of the prosecution case are that on 14/06/1994 deceased Vanita, who was the daughter of complainant Shri Mangilal Lalluramji Gupta, resident of Ujjain, Madhya Pradesh, got married to the respondent herein – original accused. Out of the said wedlock, they had a boy child. Initially their married Page 2 of 13
R/CR.A/776/1999 JUDGMENT life was smooth. The respondent – husband was serving in a firm situated at: Dhar, Dist.: Pithampur, Nr. Indore, who later shifted to Ahmedabad and got job in Arvind Mill. At the time of marriage, the complainant had given the respondent dowry in cash and kind. However, after they shifted to Ahmedabad, the respondent – accused had started giving physical and mental torture repeatedly demanding dowry. When it became unbearable to the deceased, she committed suicide on 17/05/1997 by setting her ablaze at her matrimonial house and accordingly, a complaint for the alleged offences had been lodged against the respondent – original accused.
4. In support of the case, the prosecution recorded statements of witnesses and collected several documentary evidence and after having found sufficient evidence and material against the accused, he came to be chargesheeted for the alleged offence.
5. As the case was exclusively triable by the sessions Court, on the case being committed, the learned Sessions Judge framed Charge against the accused for the alleged offences. The Charge was read over to the respondent – original accused to which, he pleaded not guilty and claimed to be tried.
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6. In order to bring home the charge against the respondent – original accused, the prosecution has examined as many as 14 witnesses and also produced several documentary evidence.
7. On submission of closing pursis, the statement of the accused under Section 313 of the Code was recorded. The accused denied involvement in the crime. After hearing both the sides and on appreciation of the evidence adduced before the trial Court, the accused came to be acquitted.
8. Mr. K. L. Pandya, learned Additional Public Prosecutor, submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. He submitted that the prosecution has examined in all 14 witnesses who have supported the case of the prosecution, however, the learned trial Judge has not properly appreciated the evidence of the said witnesses and thereby, the finding recorded by the learned trial Judge that the prosecution has Page 4 of 13
R/CR.A/776/1999 JUDGMENT failed to prove the charge against the accused by leading legal, reliable and impeachable evidence, is contrary to the evidence available on record. He further submitted that the learned trial Judge ought to have considered the fact that when the incident took place, as per the Dying Declaration of the deceased, her husband i.e. the respondent herein was present, however, he did not try to extinguish the fire and this speaks volume about the conduct of the respondent – accused. Moreover, after the incident, the respondent did not inform the parents of the deceased about the incident. He further submitted that the learned trial Judge ought to have appreciated the fact that though there was a gas connection, why the deceased preferred to prepare tea by stove. Further, for the sake of argument, if it is believed that due to spillage of kerosene from the stove, she caught fire and got severe burn injuries and ultimately succumbed to the injuries. However, the fact remains that there was a standing kitchen and if at all the deceased caught fire while preparing tea due to spillage of kerosene, the kerosene would have spilled down i.e. nearby her legs and thereby, her legs and lower portion of the body would have wet with kerosene and not the upper part, as is reflected from the documents on record and this also creates Page 5 of 13
R/CR.A/776/1999 JUDGMENT doubts against the respondent – accused. He further submitted that the parents and sister of the deceased have supported the case of the prosecution in clear terms however, the learned trial Judge has materially erred in not believing their evidence. He further submitted that the learned trial Judge has committed a grave error in not properly appreciating the fact that as the complainant was under impression that it being a police case, police would definitely take some actions in the matter and that is why only, he had not filed the complaint immediately after occurrence of incident and since the police did not do further in the matter, the delay was occurred in filing the complaint. The learned Additional Public Prosecutor further submitted that almost all the witnesses have supported the case of the prosecution but the learned trial Judge has not believed their evidence and has eventually, acquitted the respondent – accused. Last but not the least, he submitted that the present appeal may be allowed in the interest of justice.
9. Per contra, Mr. Rajesh M. Agrawal, learned advocate for the respondent – original accused, submitted that the trial court has rightly appreciated the evidence which is forthcoming on the record and the reasons recorded for recording a finding of Page 6 of 13
R/CR.A/776/1999 JUDGMENT acquittal are reasonable and justifiable. He further submitted that there are glaring and major contradictions and material improvements without any explanation in the deposition of the prosecution witnesses and therefore, the respondent has rightly been acquitted by the trial court. He further submitted that this being an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. Eventually, he submitted that the present appeal may be dismissed.
10. I have considered the abovereferred rival submissions of the learned advocates for the parties and also gone through the record and proceedings of the case on hand. As referred above, as per prosecution case, the deceased, who was daughter of complainant Mangilal L. Gupta, resident of Ujjain (M.P.), was married to respondent No. 1 – original accused No. 1 on 14/06/1994 and their initial marriage life was smooth, but later, she became victim of mental and physical torture for dowry by her husband, which led her to commit suicide on 17/05/1997 at her matrimonial house. It is not in dispute that during the said period, the deceased was pregnant of 08 months and later on, Page 7 of 13
R/CR.A/776/1999 JUDGMENT after the above incident she gave birth to a child on 26/05/1997, who died immediately after birth. The deceased also succumbed to the burn injuries on 28/05/1997. After the said incident, Yadi, addressed to the Executive Magistrate, for recording the Dying Declaration of the deceased was sent which has been produced vide exh. 23, and the Dying Declaration recorded by the Executive Magistrate is at exh. 24. Referring to the Dying Declaration, it appears that when the deceased was preparing tea on stove, kerosene was spilled over her and she caught in fire. Accordingly, an entry related to accidental death came to be registered by the police. Thereafter, the complaint was filed on 04/07/1997 i.e. approximately, after a period of two months. The ground shown for the delay in lodging the complaint is that the complainant was under the impression that it being a police case, police definitely would take appropriate action against the accused and hence, the complainant did not lodge the complaint, however, since the police did not take any action against the accused, the complainant lodged the complaint. It has been argued by the learned Additional Public Prosecutor that the Dying Declaration is not trustworthy to be relied upon because, when the deceased was taken to the hospital by the respondent – accused, except the respondent accused, no person from the Page 8 of 13
R/CR.A/776/1999 JUDGMENT parental side of the deceased was present. Moreover, on arrival of the parents of the deceased, she had stated them that her husband had burnt her. She had also stated the said fact to her sister Sangeeta, who was examined as P. W. No. 15. In the said circumstances, if the complaint dated 04/07/1997 is referred, the complainant himself has mentioned that on 17/05/1997, he was of the opinion that because of the cruel treatment of the respondent, she had committed suicide but initially when his statement was recorded by the police after the incident, as her daughter was under treatment, he had not disclosed the said aspect of mental torture being given to her daughter by the respondents. It is the fact that if at the initial stage the complainant had not thought it fit to disclose before the police regarding cruel treatment alleged to have been given by the respondent – accused to his daughter and it is only after the death of the deceased on 28/05/1997, he filed the complaint on 04/07/1997 i.e. after about 35 days from the date of the incident, for which, as observed by the learned trial Judge, no convincing and satisfactory explanation has been forthcoming and this Court also finds force and substance in the said observation. It has also come on record that the complainant had changed his statement thrice, as narrated at length by the Page 9 of 13
R/CR.A/776/1999 JUDGMENT learned trial Judge. The complainant has also deposed to the effect that the respondent No. 1 – accused No. 1 had poured kerosene on the deceased and for the death of deceased, the respondent No. 1 – accused No. 1 was solely responsible. Thus, there appears clear and vital contradictions in the depositions of the complainant himself and the investigating officer. Accordingly, the evidence that has been adduced by the prosecution, found to be not worthy enough to record conviction. The criminal jurisprudence mandates to prove the case against the accused beyond reasonable doubt by the prosecution. So far as the case on hand is concerned, considering the facts of the case, evidence led and the documents produced, this Court is of the opinion that the prosecution has failed to prove the case against the respondents beyond reasonable doubt and no case is made out to take a different view than the view taken by the learned trial Judge.
11. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, Page 10 of 13
R/CR.A/776/1999 JUDGMENT manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned Additional Public Prosecutor has not been able to point out as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
11.1 In the case of Ram Kumar Vs. State of Haryana, reported in AIR 1995 SC 280, Supreme Court has held as under: “The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. Are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order Page 11 of 13
R/CR.A/776/1999 JUDGMENT acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.”
11.2 As observed by the Hon’ble Supreme Court in the case of Rajesh Singh & Others Vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan and Another Vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal is somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 11.3 Thus, considering the above evidence forthcoming on record and considering the aforesaid facts and circumstances of the case and law laid down by the Hon’ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned Page 12 of 13
R/CR.A/776/1999 JUDGMENT judgment and order of acquittal.
12. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 04/06/1999 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 157 of 1997 is confirmed. Bail bonds shall stand cancelled. Registry to send back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same.
[ G. B. Shah, J. ]
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