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vs Hushen Musa Isani & … on 6 August, 2014




STATE OF GUJARAT….Appellant(s)
HUSHEN MUSA ISANI & 2….Opponent(s)/Respondent(s)

Appearance: MR.K.L.PANDYA, APP, for the Appellant(s)
MR PM LAKHANI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 – 3
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1 – 3


Date : 06/08/2014


1. The present appeal is filed by the appellant­State under section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short Cr.P.C, 1973) being aggrieved and dissatisfied with the judgment and order dated 19.01.1998 passed by the learned 2 nd Extra Assistant Judge, Jamnagar, in Sessions Case No.17 of 1994, whereby the respondents­ original accused have been acquitted of the charges levelled against them under Sections 306, 498A and 114 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for short).

2. Short facts of the case are that respondent No.1­original accused No.1 is the husband of deceased­Mumtaj, respondent No.2­original accused No.2 is the brother­in­law (Jeth) of the deceased and respondent No.3­original accused No.3 is the mother­in­law of the deceased. It is the case of the prosecution that marriage of the sister of the complainant­Hussain Isa Malek was solemnized with respondent No.1­original accused No.1 before five years of the alleged incident. Out of the said wedlock, they were blessed with two children. On 24.10.1993, the family members of the complainant received phone call from matrimonial house of the deceased that Mumtaj and her two children burnt. Thereafter, the complainant and his relatives went to Hospital at Jamnagar, where she was admitted and it was found that two children have already died. On being asked by the complainant to Mumtaj regarding the alleged incident, the deceased told the complainant that she has committed suicide by pouring kerosene on herself due to physical and mental torture given by her in­laws and she was also used to be beaten by her in­laws. Thus, as alleged, since the deceased was constrained to commit suicide due to harassment and torture being given by the respondents­accused, the complaint of the complainant was taken by women cell which was sent to City ‘B’ Division Police Station, Jamnagar, where it was registered as C.R.No.I­620 of 1993 against the respondents­original accused for the offences punishable under Sections 306, 498­A and 34 of the IPC. PSI Shri M.A.Malek as well as Executive Magistrate had taken the statement­cum dying declaration of the deceased and inquest Panchnama was carried out by Shri Patel, ASI, Jamnagar. During the course of treatment, the deceased sccummed to the injuries sustained by her.

2.1. At the end of investigation and on the basis of material collected against the accused, since a prima­facie case was made out against the accused, a charge­sheet was filed against them. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Jamnagar committed the case to the Court of Sessions at Jamnagar for trial which was numbered as Sessions Case No.17 of 1994. Thereafter, the charge was framed against the accused, which was read over to them. The accused pleaded not guilty to the said charge and claimed to be tried.
2.2. In order to prove the charge against the accused, the prosecution has examined, in all 11 witnesses and also produced certain documentary evidences.
2.3 Upon filing closing pursis by the prosecution, further statements of the accused under Section 313 of Cr.P.C, 1973 were recorded. The accused denied involvement in the crime. After hearing the learned advocates appearing for the prosecution and the defence, the learned trial Judge, acquitted the respondents­accused of the charges levelled against them, which is giving rise to the present appeal.

3. Heard Mr.K.L.Pandya, learned Additional Public Prosecutor, for the appellant­State and Mr.P.M.Lakhani, learned advocate for the respondents­original accused.
3.1 Mr.K.L.Pandya, learned Additional Public Prosecutor for the appellant­State of Gujarat has produced a copy of death certificate dated 03.07.2004 of respondent No.3 herein­original accused No.3­Jenamben Musabhai Isani. The same is taken on record. On perusal of the same, it appears that Jenamben Musabhai Isani­respondent No.3­herein, has expired on 19.06.2004 and hence, appeal qua respondent No.3 herein is ordered to be abated.

4. Mr.K.L.Pandya, learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the oral as well as documentary evidence produced on record. He further submitted that learned Judge has committed an error in not properly appreciating the oral as well as documentary evidence in its true and proper perspective. He then submitted that the learned trial Judge has committed an error in not considering the fact that when the deceased was brushing the ‘Chhinkani, her mother­in­law had told her not to do the same, however, as she did not stop it, her mother­in­law had beaten her. He further submitted that the prosecution has proved the case against the respondents­accused beyond reasonable doubt and thereby, the learned trial Judge has committed error in acquitting the respondents-accused. It is therefore, urged that the present appeal requires to be allowed.

5. On the other hand, Mr. P.M.Lakhani, learned advocate for respondents­original accused submitted that the trial court has rightly appreciated the evidence forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He has further submitted that there are glaring and major contradictions in the evidence of material witnesses, seriously affecting the root of the matter. Therefore, the respondents have rightly been acquitted by the trial court. The learned advocate for the respondents­ original accused 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.

6. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the learned trial Court have been very clearly explained by the Honble Apex Court in catena of decisions. In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Hon’ble Apex Court In para 16 as under:

16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re­appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.

7. Same view has been taken by the Apex Court in State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.

8. I have gone through the impugned judgment and order passed by the learned trial Court together with oral as well as documentary evidence and also considered submissions made by learned advocates for the parties, in light of the principles laid down by the Hon’ble Apex Court in the aforesaid decisions.

9. It is not under dispute that the marriage span of deceased with respondent No.1 was of five years and during the said wedlock, they were blessed with two male children. The elder son namely Imran was four years old and younger son namely Zakir was one year old. It is also not under dispute that the cause of death of deceased and her children was due to burn injuries as stated by the concerned doctor. If the dying declaration of deceased recorded by the Executive Magistrate, Jamnagar at Exh.16 is perused, it appears that the deceased had poured kerosene on herself because of cruel treatment given by her mother­in­law i.e.

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