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2015 DIGILAW 1165 (GUJ)

State of Gujarat v. Mahmedsalim Ashikali Shaikh

2015-11-04

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. JHAVERI, J. 1. By way of this appeal the State has challenged the judgment and order dated 30.6.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Ahmedabad in Sessions Case No. 123 of 2005. By the said judgment the accused have been acquitted of sections 498A, 306, 304B and 114 of IPC and sections 3 and 4 of the Prevention of Dowry Act. 2. It is the case of the prosecution that respondent No. 1 is the husband of deceased, who had married three years prior to the incident in question. Respondent No. 2 Munnabhai is the elder brother of respondent No. 1 and brother in law of the deceased. Respondent No. 3 is elder sister-in-law (Jethani) of the deceased. They were demanding dowry from the deceased and they were harassing the deceased mentally and physically. Therefore, they were charged under section 498A of the IPC. They were also charged with subjecting the deceased to torture and harassing her on the ground that she did not know cooking. Unable to bear mental and physical harassment the deceased had committed suicide by hanging herself at 12.15 Noon on 18.5.2003 at the residential place of her in-laws. Therefore, they were charged with offences punishable under sections 498A, 306, 304B and 114 of IPC and sections 3 and 4 of Prevention of Dowry Act. To prove the case against the respondents the prosecution has examined the following witnesses:- S. No. Exhibit Name 1. 7 Panch – Husenbhai Ramjubhai Shaikh 2. 9 Shamshadbhai Ishakbhai Shaikh 3. 10 Panch Sattarali Raoofali Saiyed 4. 14 Dildarahmed Abdulrashid Mansuri 5. 15 Complainant – Moharali Bharai Mansuri 6. 18 Karamali Bahrai Mansuri 7. 19 Dr. Rajendrakumar Bhagiratbhai, Medical Officer, who performed postmortem 8. 21 Executive Magistrate Mohammed Yunis Mansuri 9. 25 Mr. Ashok Kumar Mahendrabhai Muniya, Ma. Po. Ka. who accepted complaint. 10. 30 Mr. Chunilal Ramjibhai Darwala, Tapas Amaldar. 11. 32 Mr. Chandrajit Jawaharsinh, Tapas Amaldar. 3. Pursuant to the complaint, investigation was carried out. After investigation charge sheet was filed and as the case was triable by the court of sessions, it was committed to the learned Additional Sessions Judge, Fast Track Court No. 3, Ahmedabad. 4. The Trial Court framed charge against the accused. The accused pleaded not guilty to the charge and came to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 5. 4. The Trial Court framed charge against the accused. The accused pleaded not guilty to the charge and came to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 5. At the end of trial and after recording further statements of the accused under section 313 of the Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges levelled against them by the impugned judgment and order. 6. Learned Additional Public Prosecutor Mr. L.R. Poojari has taken us through the evidence of Moharali Bharai Mansuri, who is father of the deceased. He came to Ahmedabad to lodge complaint on 21.5.2003 and contended that in view of settlement which was entered into between the parties, viz. Exhibit 16 (13), which is produced on record and in that view of the matter his daughter has been subjected to mental and physical harassment for dowry and in that view of the matter he had suspected that his daughter had committed suicide, because of mental harassment meted out to her. In the complaint itself, which is produced at page 319, he had voiced his apprehension that when he had tried to talk to the deceased over nearby telephone she was not allowed to talk to them and by that he drew inference that the deceased was subjected to mental and physical harassment. Karamali Bahrai Mansuri, Exhibit 18 has turned hostile and has not supported the case of the prosecution. From the evidence of the doctor and nature of injuries described by him it is a clear case of suicide. 7. Learned counsel Mr. Yogendra Thakore for the respondents has relied upon the following decisions which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and Another, (2006) 6 SCC 39 , the Apex Court has narrated the powers of 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. 8. 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. 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. 9. 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. 9. 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. 10. Even in the case of State of Goa vs. Sanjay Thakran and 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. 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. 11. 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. 12. 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. 12. In the case of Luna Ram vs. Bhupat Singh and Others, (2009) SCC 749, the Apex Court in paras-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 postmortem 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. 13. 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 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 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 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. 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 an acquittal. State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ." 14. 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." 15. 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. 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. 16. 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. 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. 16. The document, Exhibit 16 (13), which is sought to be relied upon, is not proved and no confirmation was made. In view of cross-examination of PW-10, when it has been specifically put to him he stated that he has not gone to U.P. for verification, nor did he verify signature on the document nor did he take statement of the members of the so called compromise between the parties and he has not done inquiry. In that view of the matter he contended that the Trial Court has rightly not believed Exh. 16. 17. We have heard learned Additional Public Prosecutor and the learned advocate for the respondents and have taken into consideration the complaint filed after three days, the complainant not going to place of any relative, rather straightway going to Police Station, raises serious doubt about the conduct of the complainant. The complainant came to Ahmedabad after three days in spite of the fact that he was informed about the incident on 18.5.2003 itself. 18. In our view the Trial Court has rightly appreciated the evidence and has rightly recorded acquittal. We confirm the same. The appeal is dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. Record and Proceedings, if lying here, be sent to the Court below forthwith. Appeal Dismissed.