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2015 DIGILAW 130 (GUJ)

State of Gujarat v. Jitendra Dilipbhai Dixit

2015-02-02

K.J.THAKER

body2015
JUDGMENT : K.J. Thaker, J. By way of this appeal, the appellant- State has challenged the judgment and order of the learned Extra Asst. Sessions Judge, Jamnagar (for short, 'the trial Court'), Dated : 26.02.1997, rendered in Sessions Case No. 113 of 1993, whereby, the learned trial Court acquitted the original accused - the Respondents, herein, of the charges under Sections 498(A), Section 306 read with Section 114 of the Indian Penal Code. 2. The brief facts of the case of the prosecution, as set out before the trial Court, are that the deceased, who happened to be the wife of the original accused No.1 and daughter-in-law of original accused No.2, was married to the accused No.1 in the year 1979. However, they had no issue. It is stated in the complaint that on account of that accused Nos. 1 and 2 used to harass the deceased and thereby led her to commit suicide on 07.12.1991. Hence, the complainant lodged the complaint in question. On registration of the offence, police carried out the investigation and on finding sufficient evidence, a charge-sheet was filed against the both the accused. 3. At the time of trial, the prosecution, in support of its case, examined eleven witnesses. 4. Apart from that the prosecution also produced as many as 23 documents to strengthen its case, viz. the complaint, P.M. note, panchnama of place of offence etc.. 5. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal. 6. Learned APP for the appellant-State, vehemently submitted that the trial Court committed a grave error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective. She, submitted that taking into consideration the evidence of the witnesses examined by the complainant as well as the documentary evidences produced by the prosecution, the trial Court ought to have held the accused guilty of the charges leveled against them. She, therefore, prayed that the appeal be allowed. 7. On the other hand, Mr. Lakhani, learned Sr. Advocate for the accused Nos. 1 and 2- Respondents, herein, opposed the appeal and submitted that the trial Court acquitted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed. 8. 7. On the other hand, Mr. Lakhani, learned Sr. Advocate for the accused Nos. 1 and 2- Respondents, herein, opposed the appeal and submitted that the trial Court acquitted the accused after perusing the entire material on record, and hence, no interference is called for at the hands of this Court and the appeal be dismissed. 8. I have heard learned APP for the appellant-State as well as the learned Advocate for the original accused Nos. 1 and 2 and perused the material on record with their assistance. 9. The case of the prosecution before the trial was that, since, the accused Nos. 1 and 2 used to harass the deceased for not having any issue, she committed suicide. In that regard, if, the evidence ((Exhibit-7) of P.W.-1, who happened to be the brother of the deceased, is seen, then, this witness in his examination-in-chief stated that after marriage his sister used to stay with accused Nos. 1 and 2 in a joint family and as she had no issue, accused No.1 used to say that he again wants to marry. However, in his cross-examination this witness stated that the deceased had told about the aforesaid thing to him about four years prior to the alleged incident and in that regard he had made no complaint to anybody. Further, P.W.-1, himself, stated that after about twenty two days, i.e. he lastly dropped the deceased at the house of accused Nos. 1 and 2, the alleged incident took place. Further, P.W.-1 in his evidence stated that his mother had gone to meet the deceased before one month to the alleged incident and at that time, the deceased had told his mother about the harassment by accused No.1, as above. In other words, P.W.-1 has no personal knowledge about talk that the deceased had with his mother on that occasion, who was not examined as a witness, and hence, the trial Court rightly observed that in the absence of evidence of his mother, the evidence of P.W-1 cannot be believed. Further, P.W.-1, in his complaint, has not mentioned the aforesaid talk. Apart from that, P.W.-1, in his deposition, stated that he went to Jamnagar and persuaded the deceased to come and stay with him at Sikka with the consent of accused Nos. 1 and 2. However, the aforesaid incident also finds no mention in the complaint(Exhibit-8) given by him. Further, P.W.-1, in his complaint, has not mentioned the aforesaid talk. Apart from that, P.W.-1, in his deposition, stated that he went to Jamnagar and persuaded the deceased to come and stay with him at Sikka with the consent of accused Nos. 1 and 2. However, the aforesaid incident also finds no mention in the complaint(Exhibit-8) given by him. Then, P.W-1 stated that accused No.1 had assured him that he would not marry second time, but, that also finds no mention in the complaint given by P.W.-1. Further, the alleged incident took place on 07.12.1991 at 12:30 p.m., whereas, complaint about the same came to be lodged on 08.12.1991 at 21:15 p.m.. Further, after the alleged incident took place and though there was opportunity to lodge the complaint, P.W.-1 refused to do so at that time and instead filed the complaint on the next day, i.e. on 08.12.1991. In the same manner, there are a number of contradictions and improvements in the evidence of other witnesses, viz. P.W. Nos. 2 and 3, who happened to be the sisters of the deceased, P.W.- 3, who happened to be a cousin of the deceased, etc.. In short, from the evidence of the relatives of the deceased, no cause to commit suicide is clearly coming out to have occurred prior to the incident, on the basis of which the accused can be held guilty for the charges leveled against them. In above view of the matter, this Court has to look into the matter from the touchstone of the decisions of the Hon'ble Apex Court. 10. The principles which would govern and regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of "M.S. Narayana Menon @ Mani v. State of Kerala & Anr", (2006) 6 S.C.C. 39 , the Apex Court has narrated 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." 11. Further, in the case of "Chandrappa v. 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." 12. 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." 12. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/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. 13. Even in the case of "State of Goa v. Sanjay Thakran & Anr.", reported in (2007) 3 S.C.C. 755 , 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 characterised 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." 14. Similar principle has been laid down by the Apex Court in cases of "State of Uttar Pradesh v. Ram Veer Singh & Ors.", 2007 A.I.R. S.C.W. 5553 and in "Girja Prasad (Dead) By L.R.S v. State of MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 15. Similar principle has been laid down by the Apex Court in cases of "State of Uttar Pradesh v. Ram Veer Singh & Ors.", 2007 A.I.R. S.C.W. 5553 and in "Girja Prasad (Dead) By L.R.S v. State of MP", 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 15. 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 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." 16. Even in a recent decision of the Apex Court in the case of "Mookkiah 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 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 emphasised 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 emphasised 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 reappreciate 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 ]" 17. It is also a settled legal position that in acquittal appeals, 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 v. Hemareddy", AIR 1981 SC 1417 , wherein it is held as under; "...This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary ( 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." 18. In a recent decision, the Hon'ble Apex Court in "Shivasharanappa & Ors. v. State of Karnataka", JT 2013 (7) SC 66 has held as under; "That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 19. v. State of Karnataka", JT 2013 (7) SC 66 has held as under; "That appellate Court is empowered to reappreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence." 19. Further, in the case of "State of Punjab v. Madan Mohan Lal Verma", (2013) 14 SCC 153 , the Apex Court has held as under; "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convincing the accused person." 20. Thus, the above-mentioned decisions will not permit this Court to take a different view. In this case it is not proved beyond doubt that the original accused Nos. 1 and 2-Respondents, herein, were perpetrator of the death of the deceased. Hence, the present appeal deserves to be dismissed. Thus, the above-mentioned decisions will not permit this Court to take a different view. In this case it is not proved beyond doubt that the original accused Nos. 1 and 2-Respondents, herein, were perpetrator of the death of the deceased. Hence, the present appeal deserves to be dismissed. 21. In the result, this appeal fails and is Dismissed. The judgment and order of the trial Court, Dated : 26.02.1997, stands CONFIRMED. Bail bonds of the accused, if any, on bail, stands discharged. R & P be sent back to the concerned trial Court, forthwith. Appeal Dismissed.