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2015 DIGILAW 1162 (GUJ)

State of Gujarat v. Ashwinkumar Ratansing Palas

2015-11-04

G.B.SHAH, K.S.JHAVERI

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JUDGMENT K.S. JHAVERI, J. 1. Heard learned Additional Public Prosecutor Ms. C.M. Shah for the appellant-State and learned Advocate Mr. L.R. Pathan for the respondent. 2. By way of this Appeal, the Appellant-State has felt aggrieved by the judgment and order of acquittal dated 14.12.2006 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod in Sessions Case No. 254 of 2004 (Old Sessions Case No. 352 of 2003) whereby the respondent herein was acquitted of the offences punishable under Sections 498(A) and 302 of the Indian Penal Code. 3. The case in brief and the incident which occurred on 12/13.7.2003 is as under:- 3.1 Complainant Sardarbhai Kalubhai Munia, brother of the deceased registered a complaint against the accused with Zalod Police Station which was registered as I-C.R. No. 44 of 2003 for the offences punishable under Sections 498-A and 306 of the Indian Penal Code, inter alia stating that marriage of his sister was solemnized with the accused according to their community customs around two months prior to the date of incident and since then she was staying at her matrimonial home. It is alleged that the accused (husband of the deceased) did not treat the deceased well and used to cause mental and physical torture. Therefore, on the said day between 22.00 to 7.00 hours, the deceased committed suicide by consuming poisonous drug. 3.2 On the basis of the said complaint, the investigation was initiated and the charge-sheet was filed before the learned Judicial Magistrate First Class, Zalod. As the offence was exclusively triable by the Court of Sessions, as per the provisions of Section 209 of Code of Criminal Procedure, the learned Magistrate committed the case to the Court of Sessions and the case was transferred and placed for trial before the Sessions Court, Godhra, Panchmahal which was numbered as Sessions Case No. 352 of 2003. Thereafter, as Dahod Judicial District came into existence and since the said case came into the jurisdiction of the Dahod Sessions Court, the said case was transferred and placed for trial before the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod which was numbered as Sessions Case No. 254 of 2004. Initially, the charge was framed for the offences punishable under Sections 498A and 306 of the Indian Penal Code. Initially, the charge was framed for the offences punishable under Sections 498A and 306 of the Indian Penal Code. However, since it was disclosed from the evidence of the Doctor that the cause of death was due to strangling of the neck of the deceased, charge was framed against the accused for the offence punishable under Sections 302 and 498A of the Indian Penal Code. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution therefore, led evidence. 3.3 At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Panch Witness Bakhabhai Dharjibhai Palas 8 Dr. Ashok Vijaykumar Pawar 11 Complainant Sardarbhai Kalubhai Muniya 15 Panch Witness Bhimsinhbhai Mansinh Palas 17 Witness Gauriben Sardarbhai Muniya 20 PSI Gajendrabhai Shantilal Vyas 23 PSI Bhartsinh Girvatsinh Solanki 25 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Panchnama of the scene of offence 9 Inquest Panchnama 10 Postmortem Note 12 Yadi of the Medical Officer, PHC 13 Death Certificate of the Medical Officer, PHC, Sanjeli 14 Original Complaint 16 Original Complaint under Section 174 of the Cr. PC being Accidental Death Case No. 8 of 2003 18 Report given by the learned Judicial Magistrate First Class regarding addition of Section 302 of the Indian Penal Code. 24 The communication addressed by the Deputy Director, Surat and the Authority Certificate 26 Analysis Report 27 Letter written by the learned Executive Magistrate, Jhalod to the Investigating Officer for conducting the Inquest. 28 4. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge has failed to appreciate that deceased Anila was being meted out physical and mental harassment by the accused. It is further submitted that the learned Judge ought to have appreciated the evidence of PW 2 - Dr. Ashok Vijaykumar Pawar who conducted the post mortem of deceased Anila wherein it was stated that the death could have occurred due to strangulation. In such facts and circumstances of the case, when death of the deceased took place within a short span of married life, at the place of the accused and when no proper explanation for the cause of such a unnatural death came forward from the accused, the learned Judge ought to have appreciated the provision contained in Section 113(a) of the Evidence Act and 498-A of the Indian Penal Code. 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 respondent Mr. L.R. Pathan has relied on the various judgments of the Hon'ble Supreme Court which are detailed herein-below. Learned Advocate has further submitted that after amendment of the charge and after receipt of report about the death from the medical officer, the investigating officer should have conducted the investigation taking into account Section 302 of the Indian Penal Code rather than Section 306 of the Code. Therefore, it is submitted that the benefit of doubt granted by the Trial Court to the respondent be confirmed and the judgment and order of the learned Sessions Judge requires no interference by this Court. 5.1 In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and Another, (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." 5.2 Further, in the case of Chandrappa vs. State of Karnataka, (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. (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." 5.3 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. 5.4 Even in the case of State of Goa vs. Sanjay Thakran & Another, (2007) 3 SCC 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. 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." 5.5 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh and Others, 2007 SCW (AIR) 5553 and Girja Prasad (Dead) by LRs vs. State of Madhya Pradesh, 2007 SCW (AIR) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 5.6 In the case of Luna Ram vs. Bhupat Singh and Others, (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." 5.7 Even in a recent decision of the Apex Court in the case of Mookkiah and Another vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SCC 321 , the Apex Court in para 4 has held as under:- "4. by the Inspector of Police, Tamil Nadu, 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 Section 34 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. 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 )." 5.8 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. (Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 )." 5.8 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite 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, AIR 1981 SC 1417 , wherein it is held as under:- "This Court has observed in Girija Nandini Devi vs. 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." 5.9 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Others vs. State of Karnataka, JT 2013 (7) SC 66. 6. We have heard learned Advocates for the parties and perused the records of the case. We are in complete agreement of the learned Advocate for the respondent Mr. L.R. Pathan who has stated that when there was an amendment of the charge, the investigation ought to have been conducted under Section 302 of the Indian Penal Code rather for Section306 of the Indian Penal Code. Further, the death can be stated to be an accidental one because the uncle of the accused at Exhibit 18 has clearly stated that in the night the deceased had gone for sleeping inside the house whereas the other people had gone to sleep outside the house in the open. While going through the well reasoned judgment and order of the learned Judge, it is clearly held that the benefit of doubt is granted to the respondent in the special facts and circumstances of the case and also because the prosecution failed to prove beyond a reasonable doubt that it was the accused who was instrumental in causing death of the deceased. Hence, this Court is in full agreement with the reasons given and findings recorded by the Trial Court while acquitting the accused 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. 7. The Appeal is devoid of merits and stands dismissed. The judgment and order of acquittal dated 14.12.2006 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod in Sessions Case No. 254 of 2004 (Old Sessions Case No. 352 of 2003) stands confirmed. Bail and bail bond, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith. Appeal Dismissed.