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2013 DIGILAW 555 (GUJ)

JASHODABEN W/O RASIK GANGARAM v. STATE OF GUJARAT

2013-09-12

K.J.THAKER, K.S.JHAVERI

body2013
JUDGMENT K.J. THAKER, J. 1. Criminal Appeal No. 580/1990 under sec. 374(2) of the Code of Criminal Procedure, has been preferred by the Appellant-Original Accused No. 1 against the judgment and order of conviction and sentence dated 29.9.1989 passed by the learned Judge, Court No. 22, City Civil Court, Ahmedabad in Sessions Cases No. 188/1989 & 189/1989, whereby, the learned trial Judge has convicted the present appellant ori. Accused no. 1 under sec. 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs.200/-, in default, to undergo further R/I for two months. 2. Criminal Appeals No. 23/1990 and 24/1990 has been preferred by the State under sec. 378 of the Code of Criminal Procedure, against the judgment and order dated 29.9.1999 passed by the learned Judge, Court No. 22, City Civil Court, Ahmedabad in Sessions Case No. 188/1989 & 189/1989, whereby, the learned trial Judge has acquitted the respondent-ori. Accused no. 2 of the charges leveled against him. Since all the appeals arise from common judgment and order of the trial Court, they are heard and decided by this common judgment. 2.1 The brief facts of the prosecution case is that accused no. 2 who is the wife of deceased Rasiklal Panchal were staying in a rented room in Madhavas no. 2, Nava Vadaj, Ahmedabad. The land-lord of the said house is Kantilal Mohanlal. It is the case of the prosecution that Accused no. 1 and her husband were quarreling with each other and were not in a good terms. It is also alleged by the prosecution that accused no. 1 had illicit relation with accused no. 2 and the deceased Rasiklal was the obstacle in their love affairs and so in order to remove this obstacle, accused no. 1 and 2 had planned together to cause murder of the deceased Rasiklal and in order to achieve that object, accused no. 2 supplied compose tablets and electric wire to accused no. 1. On 28.3.1989 in the early morning accused no. 1 attempted to commit murder of her husband Rasiklal by applying electric live wire to him but he awoke and so he was saved on that day. It is the prosecution case that on the very next day i.e. on 29.3.1989 in the early morning, accused no. 1. On 28.3.1989 in the early morning accused no. 1 attempted to commit murder of her husband Rasiklal by applying electric live wire to him but he awoke and so he was saved on that day. It is the prosecution case that on the very next day i.e. on 29.3.1989 in the early morning, accused no. 1 wrapped live wire on right hand and left leg of the deceased Rasiklal and plugged the pin in the switch board and thereafter the switch was made on and with the electric current which was passed at that time, deceased Rasiklal expired on the spot because of electric burns and shock. According to the prosecution, in the early morning at about 5.00 or so on 29.3.1989 accused no. 1 began to shout and so her land-lord Kantilal Mohanlal and her neighbour Bharatbhai came there and she informed them that her husband committed suicide by wrapping electric wire on his body. She had also informed Kantilal Mohanlal to convey message to her uncle who was residing in Bharwadvas and so Kantilal Mohanlal and Bharatbhai had gone to call him but he was not traced and so thereafter they informed to police station at Naranpura about the incident and the police had registered accidental death at No. 24/1989 in the Station Diary. PSI Mr. Sharma made inquest panchnama of the dead-body and also instructed Mr. P.C. Rana to take nearly 8 photographs of the dead body as place of accident. On the same day, PSI Sharma also recorded statements of the landlord and other neighbouring persons. He also sent the dead-body to the Civil Hospital for post mortem and also sought opinion of the Electrical Inspector and also sought opinion of Senior Scientific Assistant Shri Mistry and also sought opinion of Dr. Deshmukh regarding the nature of death of the deceased. After making necessary investigation in the matter, he handed over the investigation to Police Inspector Shri Ahuja on 9.5.1989. Mr. Ahuja also recorded further statements of the witnesses and after receiving the report of Forensic Science Laboratory, he found that there is a prima facie case against the accused no. 1 and 2 for causing murder of the deceased Rasiklal and so on 10.5.1989 he arrested the accused and carried out further investigation in the matter. 2.2 The accused came to be arraigned for committing the murder. 1 and 2 for causing murder of the deceased Rasiklal and so on 10.5.1989 he arrested the accused and carried out further investigation in the matter. 2.2 The accused came to be arraigned for committing the murder. After the investigation, was complete, the charge-sheet was hold against the accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the 2.3 Thereafter, the Sessions Court framed the charge below Exh. 2 against the accused for commission of the offence under section 302 read with section 34 of IPC. The accused have pleaded not guilty and claimed to be tried case was committed to the Court of Sessions, which was given number as Sessions Cases No. 188/89 and 189/1989. 2.4 To prove the case against the accused, the prosecution has examined the following witnesses: 1. PW-1 Jyotindra P. Patel Ex. 11 2. PW-2 Shri Bharatbhai K. Mistry Ex. 16 3. PW-3 Dr. N.N. Parikh Ex. 23 4. PW-4 CPI Shri Arvindkumar S. Patel Ex. 26 5. PW-5 Shri V.S. Rana Ex. 29 6. PW-6 N.D. Shah Ex. 46 7. PW-7 Mahesh Hiralal Ex. 47 8. PW-8 Bharatkumar L. Thakkar Ex. 48 9. PW-9 Kanubhai D. Patel Ex. 50 10. PW-10 Kantilal M. Patel Ex. 52 11. PW-11 Kanubhai Keshavlal Ex. 54 12. PW-12 Shardaben B. Panchal Ex. 58 13. PW-13 Anandkumar H. Patel Ex. 59 14. PW-14 Dashrathbhai R. Patel Ex. 60 15. PW-15 Kanaiyalal Bhaktiram Ex. 61 16. PW-16 Arvindbhai Ramanlal Ex. 62 17. PW-17 Dr. Rathindra B. Deshmukh Ex. 63 18. PW-18 Hasmukhbhai K. Patel Ex. 66 19. PW-19 PSI Shri H.P. Sharma Ex. 67 20. PW-20 D.C.P. Shri Y.G. Ahuja Ex. 74 2.5 The prosecution also relied upon the certain documentary evidences so as to bring home the charges against the accused. 3. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of Cr. P.C. was recorded in which the accused have denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 29.9.1989 held the accused no. 1 guilty of the charge leveled against her under sec. 302 of IPC and convicted and sentenced the accused no. 1, as stated above. 5. We have heard learned advocate Mr. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 29.9.1989 held the accused no. 1 guilty of the charge leveled against her under sec. 302 of IPC and convicted and sentenced the accused no. 1, as stated above. 5. We have heard learned advocate Mr. PM Vyas for the appellant in Criminal Appeal No. 580/1990 and for the respondent in Criminal Appeals Nos. 23/1990 and 24/1990 and Ms CM Shah learned APP for the respondent-State in Criminal Appeal No. 580/1990 and for the appellant-State in Criminal Appeals Nos. 23/1990 and 24/1990. 6. The learned advocate for the present appellant of Criminal Appeal No. 580/1990 has contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted. 7. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellant and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed. 8. In light of the latest decision of the Apex Court, we think that it would not be now necessary or expedient to wait for the learned advocate as the matter has been notified at least for 53, 41 and 43 times, respectively. 9. The case of appellant – ori. Accused no. 1 has been thread-bare discussed by the learned trial Judge. The ocular version of PW-7 Mahesh Hiralal Ex. 47, PW-2 Bharatbhai K. Mistry Ex.-16, PW-13 Advocate Anandkumar H. Patel Ex.-59 and PW-14 Dashrathbhai R. Patel Ex. 60 go to show that Accused no. 1 was instrumental in causing the death of her husband. Accused no. 1 has been thread-bare discussed by the learned trial Judge. The ocular version of PW-7 Mahesh Hiralal Ex. 47, PW-2 Bharatbhai K. Mistry Ex.-16, PW-13 Advocate Anandkumar H. Patel Ex.-59 and PW-14 Dashrathbhai R. Patel Ex. 60 go to show that Accused no. 1 was instrumental in causing the death of her husband. The postmortem report shows the death has been caused due to shock of cardio respiratory failure as a result of electric burn, and therefore, the chain of circumstance is proved, and therefore, the expert’s opinion proves that death was not accidental or suicidal but homicidal caused by the present appellant – original accused no. 1. Looking to the appeal memo, we are not impressed by the submissions made in the appeal memo on the ground that it was a suicidal death. Nothing there on record to show that it was the suicidal death. The death occurred at night when the accused no. 1 was present though she has tried to create alibi that she was not present at home, which was rightly not believed by the learned trial Judge. 10. In that view of the matter, Criminal Appeal No. 580/1990 deserves to be dismissed. However, in view of the latest decision of Hon’ble Supreme Court in the case of Annapurna v. State of U.P., reported in JT 2013(9) SC 560, the present appellant-original accused no. 1 has already undergone 13 years imprisonment on the date of granting her bail in the year 2000, and therefore, the case of premature release may be considered by the State Government under section 432 of Cr. P.C. as per the said decision because the case was of the year 1989 and more than 23 years have elapsed after the trial was over and she has already undergone major part of the sentence. 11. Accused No. 2 Punamchand Mohanlal Mehta, who is the original accused no. 2 has been acquitted in both the sessions cases i.e. Sessions Case No. 188/89 and 189/89, and that is how, the Criminal Appeals No. 23/90 and 24/90 arise. 12. 11. Accused No. 2 Punamchand Mohanlal Mehta, who is the original accused no. 2 has been acquitted in both the sessions cases i.e. Sessions Case No. 188/89 and 189/89, and that is how, the Criminal Appeals No. 23/90 and 24/90 arise. 12. So far as the acquittal appeals being Criminal Appeals No. 23/1990 and 24/1990 are concerned, at the outset, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: “54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.” 13. Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: [1] An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. [3] Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. [4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 14. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 15. Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed 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. 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 re-appreciate 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.” 16. Similar principle has been laid down by the Apex Court in the cases of 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. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 17. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 , wherein, it is held as under: “… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.” 18. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: “10. The High Court has noted that the prosecution version was not clearly believable. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under: “10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence. 19. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. v. State, rep. By the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321 , the Apex Court in para-4 has held as under: “4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Sec. 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the Court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against the acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ] 20. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. 21. We have gone through the judgment and order of acquittal passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned APP for the appellant-State. The trial court while considering the oral as well as documentary evidence has clearly observed that there is no any evidence to convict the respondent. 22. While dealing with the acquittal appeal, recently the Apex Court has held that even in acquittal appeal, the High Court being the first Court of Appeal should scrutinize each and every evidence on record. While going through the record, we would not like to reproduce the entire evidence, however, so far as respondent – ori. Accused no. 2 is concerned, the evidence is very weak. The prosecution has tried to link him with accused no. 1 for supplying electric wires, etc. and because of his illicit relations with accused no. 1, he has joined hands with accused no. 1 it is true that such inference can easily be drawn in such circumstances of the case but we have also to consider whether any positive evidence worth relying against the accused no. 2 is there or not. The prosecution has relied on the evidence of PW-7, PW-2, PW-13, PW-14 and PW-16 to show that accused no. 2 had joined hands with the accused no. 1 for causing death of Rasiklal by supplying electric wires and because of his affairs with accused no. 1. On minutely examining the evidences, it is seen that these are all circumstantial evidence and we have to appreciate whether the above circumstantial evidence are quite sufficient which would irresistibly lead to the guilt of accused no. 2. 1 for causing death of Rasiklal by supplying electric wires and because of his affairs with accused no. 1. On minutely examining the evidences, it is seen that these are all circumstantial evidence and we have to appreciate whether the above circumstantial evidence are quite sufficient which would irresistibly lead to the guilt of accused no. 2. So far as evidence of Maheshbhai is concerned, he is a person who has got electric stores and according to him, he had supply some 8 mtrs. Wire to accused no. 2 of 2ft prior to two days of Holi. This witness has identified the accused. It is very strange and also not believable that how he has identified the person who had taken wire from his shop when there are so many persons coming and going as customers. Further more, police has also not recorded statement immediately after the incident but has taken statement on 13.4.1989 and on 12.5.1989 and not immediately after the incident. He has not given any pin for the electric wire supplied to accused no. 2. So it is very doubtful that whether he has identified accused no. 2 as the person who had taken wire from his shop. So considering the oral evidence against accused no. 2, there is some evidence to show that accused no. 2 had affairs with accused no. 1 but that does not mean that he has joined hands with accused no. 1 for committing murder. There is no evidence that accused no. 2 was present on the previous day night of the occurrence at the house of accused no. 1. There is also no evidence to show that it was the accused no. 2 who had supplied electric wire and pin to accused no. 1 prior to the incident. It seems that accused no. 2 has been booked in this case because he had affairs with accused no. 1 and they both must have managed to do away the deceased who was an obstacle in between them. Only on this point, accused no. 2 cannot be held guilty and more particularly when there are no circumstantial evidence which would irresistibly lead to the guilt of accused no. 2. The prosecution has miserably failed to prove the case against the accused beyond any reasonable doubt. Only on this point, accused no. 2 cannot be held guilty and more particularly when there are no circumstantial evidence which would irresistibly lead to the guilt of accused no. 2. The prosecution has miserably failed to prove the case against the accused beyond any reasonable doubt. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the trial Court. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. 23. Ms CM Shah learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. 24. In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence, the acquittal appeals require to be dismissed. 25. In the result, Criminal Appeal No. 580/1990 is dismissed. The impugned judgment and order of conviction and sentence dated 29.9.1989 passed by the learned Judge, Court No. 22, City Civil Court, Ahmedabad is confirmed. Her bail and bail bonds stands cancelled. R & P to be sent back to the trial court forthwith. 26. However, in view of the latest decision of Hon’ble Supreme Court in the case of Annapurna v. State of U.P., reported in JT 2013(9) SC 560, the present appellant has already undergone 13 years imprisonment on the date of granting her bail in the year 2000. The case of premature release may be considered by the State Government under section 432 of Cr. P.C. as per the said decision. It is also clarified that life would not mean till the last breath and her case may be considered by the State Government after 14 years and she shall be given remission. 27. The case of premature release may be considered by the State Government under section 432 of Cr. P.C. as per the said decision. It is also clarified that life would not mean till the last breath and her case may be considered by the State Government after 14 years and she shall be given remission. 27. The appellant – Ori. Accused No. 1 – Jashodaben Rasiklal Panchal is directed to surrender before the Jail Authority within a period of eight weeks from the date of this order, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant-Accused. 28. Criminal Appeal No. 23/1990 and 24/1990 are dismissed. The impugned judgment and order of acquittal dated 29.9.1989 passed by the learned Judge, Court No. 22, City Civil Court, Ahmedabad is confirmed. Appeal dismissed.