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2015 DIGILAW 1290 (GUJ)

Dineshkumar Kalidas Patel v. State of Gujarat

2015-12-16

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Present appeals assail the judgment and order dated 12/09/1995 passed by the learned Sessions Judge, Mahesana in Sessions Case No. 136 of 1993, whereby, while acquitting the original accused Nos. 2 to 8 for all the charges levelled against them and the accused No. 1 for the offence punishable under Section 304B, 306 and 120B of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the learned Sessions Judge was pleased to convict the accused No. 1 for the offence punishable under Section 498A and 201 of the IPC and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs. 1,000/- and in default of payment of fine, to undergo, further imprisonment for three months and for the offence punishable under Section 201 of the IPC, he was sentenced to undergo simple imprisonment for six months and a fine of Rs. 500/- and in default of payment of fine, to undergo, further simple imprisonment for one month. 2. Brief facts of the prosecution case are that the deceased and the accused No. 1 got married in the year 1985. The original accused Nos. 5 and 8 were the father-in-law and the mother-in-law, respectively, of the deceased. If was the case of the prosecution that after the marriage, the accused started harassing the deceased for dowry and they used to give her physical and mental torture to her. It was alleged that prior to two months of the incident in question, the accused No. 1 demanded Rs. 50,000/- from the deceased and for that accused, in the aid and abetment of each other, continued harassment to the deceased. When the same became unbearable, the deceased, on 26/12/1990 in the midnight i.e. within a period of seven years of the marriage, committed suicide by hanging herself with the fan by a saree at her matrimonial home. Further, on the said incident having occurred, the accused, instead of informing the police about the same, allegedly, with a intention to destroy the evidence, performed cremation of the deceased. Thus, the accused committed the alleged offence punishable under Section 304B, 306, 498A and 201 r/w. 120B of the IPC and Section 4 of the Dowry Prohibition Act, for which, a complaint came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. Thus, the accused committed the alleged offence punishable under Section 304B, 306, 498A and 201 r/w. 120B of the IPC and Section 4 of the Dowry Prohibition Act, for which, a complaint came to be lodged against them. 2.1 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 Sessions Court at Mahesana. Since the original accused No. 5 - Kalidas Kakubhai Patel had expired, the criminal case was abated qua him. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under: ORAL EVIDENCE S/n. Name of Witness Exh. 1 Ganpatbhai Ishwarbhai, complainant 29 2 Navinchandra Somabhai Patel 31 3 Kantaben Ganpatlal 33 4 Kailashben Vinodbhai 34 5 Shambhubhai Narandas Patel 35 6 Bhartiben Govindbhai 37 7 Geetaben Vitthalbhai 38 8 Kalpeshkumar yashvantray Acharya 39 9 Vasudev Laljibhai Patel 41 10 Manubhai Kuberdas Parmar 53 11 Bandas Raydas Jadav 54 DOCUMENTARY EVIDENCE S/n. Document Exh. 1 Complaint Mark A 2 Certificate of the death of the deceased 40 3 Panchnama of place incident 32 4 Panchnama of seizure of suicide note of the deceased 42 5 Panchname as to specimen of signature on the sucide note 43 6 Extract of the register of the panchayat as to registration of death of the deceased Mark 28/9 7 Correspondence with the expert as to signature 44 to 49 8 Expert’s Opinion 50 9 Photograph 50 10 Report as to muddamal receipt 52 11 Letter by the deceased addressed to accused No. 1 dated 08/01/1986 Mark B 2.4 At the end of the trial and after recording the Further Statements of the accused under Section 313 of Code and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge concluded as aforesaid by the impugned judgment and order. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - accused No. 1 as well as the State have preferred the present appeals against conviction and the acquittal, respectively. 3. We have heard Mr. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - accused No. 1 as well as the State have preferred the present appeals against conviction and the acquittal, respectively. 3. We have heard Mr. K.B. Anandjiwala, learned senior advocate for the appellant - accused No. 1 and Mr. L.R. Pujari, learned Additional Public Prosecutor, for the State. 3.1 Mr. Anandjiwala, learned senior advocate for the original accused No. 1, mainly contended that the complaint for the alleged offence, had been lodged after three months and six days of the incident in question and it is a well drafted application, running into almost ten pages and the complainant has admitted that the same was drafted by an advocate. In that view of the matter, he submitted that the trial Court has committed an error in framing the accused in the crime in question. He submitted that, even in the original complaint, names of some of the accused, were not referred. The learned senior advocate for the accused No. 1 also contended that there is no evidence on record to prove the charge against the accused for the offence punishable under Section 304B of the IPC and/or under the Dowry Act and/or to prove that the deceased was being physically and mentally harassed and tortured and thereby, cruelty was perpetrated to the deceased. He took us to the evidence of the complainant and submitted that, on the contrary, it has come on the record that the accused No. 1 had helped the father of the deceased by giving him Rs. 1 lakh, which had been misappropriated by the father of the deceased. He also submitted that the deceased was suffering from depression and the accused No. 1 had tried his level best to support her. Even, the accused No. 1 had shifted his business to Kadi so as to be by the side of the deceased. Making above submissions, he requested that the accused No. 1 is, at least, requires to be given benefit of doubt and may be acquitted of the charges levelled against him. 4. As against this, Mr. Even, the accused No. 1 had shifted his business to Kadi so as to be by the side of the deceased. Making above submissions, he requested that the accused No. 1 is, at least, requires to be given benefit of doubt and may be acquitted of the charges levelled against him. 4. As against this, Mr. L.R. Pujari, learned Additional Public Prosecutor appearing for the State, also took us to the evidence on record and contended that looking to the conduct of the accused itself of not informing the police of such an incidence of premature and unnatural death of the deceased besides, consistent dowry demands by the accused and the fact that the incident had occurred at the matrimonial home of the deceased and that too, within a period of seven years of her marriage, the learned trial Judge has committed an error in acquitting the accused Nos. 2 to 8 from all the charges and the accused No. 1 from some of the charges levelled against him and accordingly, he requested this Court to interfere in the appeal and allow the appeal filed by the State against acquittal and dismiss the appeal filed by the original accused No. 1. 5. We have heard the learned advocates for the respective parties and examined the matter carefully and also gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. Taking into consideration the fact that the complaint was lodged almost after a period of four months of the incident in question, the fact remains is that no post mortem was performed of the deceased. Even if the case of the defence is accepted, it was a premature and unnatural death and therefore, the mandatory requirements under the law, at least to inform the police of the death and to get the post mortem of the deceased done, were not fulfilled. Admittedly, nothing has come on record to show that the post mortem was carried out and/or the police complaint was immediately filed. Considering the said aspect, we have all reasons to believe that the offence is made out under section 201 of the IPC. However, so far as offence punishable under Section 498A of the IPC is concerned, we believe the contention of Mr. Considering the said aspect, we have all reasons to believe that the offence is made out under section 201 of the IPC. However, so far as offence punishable under Section 498A of the IPC is concerned, we believe the contention of Mr. Anandjiwala, learned senior advocate for the accused No. 1, that almost after a period of four months, the complaint was lodged and there is nothing on record to substantiate the case of the prosecution qua cruelty being perpetrated to the deceased for want of dowry and on the contrary, the accused No. 1 had helped the father of the deceased and gave Rs. 1 lakh. Under the circumstances, we are of the opinion that the learned trial Judge has rightly convicted the accused No. 1 for the offence punishable under Section 201 of the IPC, however, has committed an error in holding conviction of the accused No. 1 for the offence punishable under Section 498A of the IPC and the same is not sustainable. 6. So far as Criminal Appeal No. 1132 of 1995 filed by the State against acquittal is concerned, 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 Hon'ble Apex Court in catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., reported in (2006) 6 SCC 39 , the Hon'ble 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 Hon'ble 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 judgement 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." 6.1 Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 the Hon'ble Apex Court has 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, reappreciate 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." 6.2 Thus, it is a settled principle that while exercising appellate powers, 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. 6.3 Even in a recent decision of the Hon'ble 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. 6.3 Even in a recent decision of the Hon'ble 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 judgement 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." 6.4 Similar principle has been laid down by the Hon'ble Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs v. 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. 6.5 In the case of Luna Ram v. Bhupat Singh and Ors., reported in (2009) SCC 749, the Hon'ble 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 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 a running condition. 11. Considering the parameters of appeal against the judgement 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." 6.6 Even in a recent decision of the Hon'ble 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 Hon'ble 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 levelled 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. 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 v. Sohan Lal and others, (2004) 5 SCC 573 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" 6.7 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 Hon'ble Apex Court in the case of State of Karnataka v. 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." 6.8 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence at length is not necessary. 6.9 We are of the considered opinion that the findings recorded by the trial Court in acquitting the accused, are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court and no interference is warranted by this Court. 7. We are in complete agreement with the reasonings given and the findings arrived at by the trial Court and no interference is warranted by this Court. 7. In view of the aforesaid discussion, Criminal Appeal No. 939 of 1995, filed by the appellant - original accused No. 1 against conviction, succeeds in part and the impugned judgment and order dated 12/09/1995 passed by the learned Sessions Judge, Mahesana in Sessions Case No. 136 of 1993 is modified to the aforesaid extent and the appellant - original accused No. 1 is acquitted for the offence punishable under Section 498A of the IPC and accordingly, conviction and sentence imposed upon him for the said offence, is set aside. However, his conviction and sentence for the offence punishable under Section 201 of the IPC, is hereby confirmed. The rest of the order qua fine etc. shall remain unaltered. The appellant - accused No. 1 is on bail and hence, he is directed to surrender before the concerned jail authorities within ten weeks from today to undergo the remaining sentence, if he has not undergone the sentence imposed upon him for the offence punishable under Section 201 of the IPC and if he has already undergone, he is not required to surrender to custody. His bail bonds shall stand cancelled. He shall be given set off for the period he has already undergone. So far as Criminal Appeal No. 1132 of 1995, filed by the State against acquittal of all the accused is concerned, the same fails and is dismissed. Registry to return the R&P, if any, to the trial Court forthwith.