Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1044 (GUJ)

State of Gujarat v. Gitesh Bhikhabhai Patel

2015-10-15

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State and learned Advocate Mr. Yogendra Thakore for the respondents No. 1 - 3. 2. By way of this Appeal, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 13.02.2006 of the learned Additional Sessions Judge, Fast Track Court No. 5, Bharuch in Sessions Case No. 112/2002 whereby the respondents herein were acquitted of the offences punishable under Sections 498(A), 302 and 34 of the Indian Penal Code. 3. The case in brief is as under:- 3.1. The respondent No. 1 is the husband of the deceased, the respondent No. 2 is the father-in-law of the deceased and the respondent No. 3 is the mother-in-law of the deceased. It is the case of the prosecution that the deceased Meena suffered burn injuries on 31.05.1998. Entry No. 15/1998 was registered before Jagadia Police Station. Since Meena sustained 70% burn injuries, she was admitted in the hospital for plastic surgery at Baroda in the hospital of Dr. Umesh J. Shah, where she had give a history that she received these burns while starting the kerosene stove and at that time, she had put on a polyster dress. On 16.06.1998, when Dr. Umesh J. Shah was on his rounds at the hospital, Meena requested the Doctor for changing the statement. Accordingly, Dr. Umesh J. Shah informed Jagadia Police Station and wrote a letter to Police Incharge. The police personnel reached the hospital, the learned Executive Magistrate was called and her Dying Declaration was recorded. On 20.06.1998, Meena succumbed to her injuries. When the police came to know about the death of Meena, Jagadia police investigated the case and filed a 'B' Summary. 3.2. Thereafter on 27.07.1998, the uncle of Meena - Zaverbhai Kalidas Patel filed a complaint before the learned Judicial Magistrate, First Class, Jagadia for the offences punishable under Section 307,498A and 34 of the Indian Penal Code stating that his elder brother had died about 20 years prior to the date of the incident. His sister-in-law and four daughters were living in a joint family. The eldest brother of the complainant had arranged marriages of all the above children. The respondent No. 1 had married Meena about three years prior to the date of incident. His sister-in-law and four daughters were living in a joint family. The eldest brother of the complainant had arranged marriages of all the above children. The respondent No. 1 had married Meena about three years prior to the date of incident. It is alleged that on the day of marriage, the respondents had demanded dowry and they were not satisfied with the articles given to Meena. It is alleged that the respondents had given threats to immediately provide sufficient dowry, failing which Meena would be returned back. The complainant under these circumstances was compelled to bring the various articles related to dowry. 3.3. It is further the case of the prosecution that on 31.05.1998, one - Rashmiben gave a telephonic message to the sister of Meena, i.e. Ritaben stating Meena had received burns and was admitted to the hospital. Hence, the complainant, brother of the victim and others went to Jagadia, where they received the information that Meena was shifted to Bharuch. Meena could not be located by the entire party and hence, they rushed to Karjan, where they received information that Meena was admitted in Amrish Hospital which serious burn injuries. The next day, the doctors informed that the in-laws of Meena had caused this injury. Hence, the complaint in this respect was lodged. On completion of the investigation, the charge-sheet was filed. The respondents faced trial and it was a case of total denial. 3.4. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Complainant Zaverbhai Kalidas Patel 17 Reshmaben Hirenbhai Patel 18 Ritaben Yogeshbhai Patel 19 Chandrikaben Jayantibhai Patel 20 Prabhatbhai Bakhabhai Tadvi 25 Executive Magistrate Yogeshchandra Lakhmishankar Dave 37 Dr. Umesh J. Shah 42 PSI K.R. Parmar 46 Investigating Officer Yakubbhai Bhatiya 55 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Complaint 23 Complaint (Dying Declaration) 28 Report by PSI, Jhagadiya 29 Yadi written to the learned Executive Magistrate for the Dying Declaration 30 Copy of the original letter written to the Executive Magistrate for taking the Dying Declaration 31 First Information Report 32 Letter of the Doctor (regarding Enquiry – Exhibit 44) 33 Dying Declaration (regarding Enquiry – Exhibit 40) 35 Letter (regarding Enquiry – Exhibit 43) 39 Letter (regarding Enquiry – Exhibit 45) 40 Report under Section 302 of the Indian Penal Code 45 Post Mortem Note 46 Panchnama dated 31.05.1998 70 3.5. At the end of the trial, the learned Sessions Judge passed the order as above. 4. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge ought to have appreciated that the deceased Meena was subjected to mental and physical harassment because of the insufficient dowry given by the complainant. Besides, the respondent No. 1 was suspecting the character of his deceased wife. It is further submitted that the post mortem report supports the case of the prosecution wherein it is stated that the death of the deceased had occurred because of the burn injuries. Further, Exhibit 38 of the medical officer who had given treatment to Meena states that she was brought in a burnt condition. The learned Judge ought to have appreciated the dying declaration of Meena and also that on the day of marriage, there was allegedly a constant demand for dowry by the present respondents. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned. 5. Learned Advocate for the respondents No. 1-3 Mr. Yogendra Thakore has relied on the various judgments of the Hon'ble Supreme Court which are detailed hereinbelow and has taken us to the evidence and cross-examination of the complainant. Learned Advocate has further taken us to the two dying declarations as also Exhibits 39, 61, 63. Exhibits 28 and 35 are the subsequent ones. If Exhibit 39 is examined, it is clear that it was first appreciated. Learned Advocate has also further submitted if a second view is possible, in an acquittal appeal, this Court should be slow in reversing the same. Hence, it is submitted that the judgment and order of the learned Sessions Judge requires no interference by this Court. 6. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 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. 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." 7. Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 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. 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." 8. 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." 8. 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. 9. Even in the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007) 3 S.C.C. 75, the Apex 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. 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." 10. 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 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 11. Ram Veer Singh & Ors. reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 11. In the case of Luna Ram Vs. 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 ankle 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. 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." 12. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 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 in 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 Section 302 read with Section34 of IPC and awarded RI for life. Since counsel for the appellant 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. Since counsel for the appellant 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 an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]." 13. 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 Choudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the Appellate 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." 14. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. Vs. State of Karnataka, reported in JT 2013 (7) SC 66. 15. We have heard learned Advocates for the parties and perused the records of the case. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors. Vs. State of Karnataka, reported in JT 2013 (7) SC 66. 15. We have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, it is clearly held that the complaint was filed at a belated stage. Further, the 2nd dying declaration was recorded after a considerably long period. It also transpires that the husband of the deceased had tried to save his wife and in the process, he also received burn injuries. The husband had also paid medical expenses towards the treatment of his wife. Further, the presence of the father-in-law and mother-in-law is not established. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the respondents and adopting the said reasons as well as the reasons aforesaid, in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 16. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 13.02.2006 of the learned Additional Sessions Judge, Fast Track Court No. 5, Bharuch in Sessions Case No. 112/2002 stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.