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2015 DIGILAW 417 (GUJ)

Vankar Dhanabhai Lalabhai v. State of Gujarat

2015-04-10

S.G.SHAH

body2015
JUDGMENT : S.G. Shah, J. 1. The petitioner is original complainant, whereas respondent No.2 is original accused and respondent No. 1 is investigating and prosecuting agency. 2. The petitioner - complainant has challenged the judgment and order dated 31.01.2006 by the Sessions Judge, Dahod in Sessions Case No. 2 of 2005, whereby the accused were acquitted from the charges under Section 498A, 306 and 114 of the Indian Penal Code. 3. If we peruse the factual details, the daughter of the complainant has committed suicide by throwing her body before the running train. For such unhappy incident the complainant has alleged that his daughter has committed suicide because of harassment and torture by her in-laws stating that why she has not secured more percentage in her examination of 12th standard. The story thereafter is not required to be reproduced because it is nothing but confirmation that because of death of the victim, FIR was lodged, investigation was carried out and charge - sheet was filed and, thereupon, in - laws of the victim have been tried in two different Sessions Case being 2 of 2005 and 132 of 2005 since some of them were added and arrested after some long time. 4. On perusal of Records and Proceedings, it becomes clear that the trial has not committed any irregularity or illegality in acquitting the accused and, therefore, in absence of material illegality on record, there is very limited scope to interfere in such acquittal. However, if we peruse the factual details it becomes certain and clear that victim has obtained 55% marks in 12th standard examination, in which she has appeared after her marriage and only allegations are to the effect that there is continuous torture, that why she has obtained such less marks, therefore, the trial Court has rightly observed that, when there is no ill-treatment, torture and cruelty or demand of dowry, it cannot be said that in-laws has abetted the crime, when victim was cut by on going train on a railway track. It is admitted position that there is no in-house toilet in the area and people were going outside to answer the call of nature. It is admitted position that adjoining the colony of the accused, there is a railway line, where trains are passing by regularly. It is admitted position that there is no in-house toilet in the area and people were going outside to answer the call of nature. It is admitted position that adjoining the colony of the accused, there is a railway line, where trains are passing by regularly. Therefore, when it has come in evidence that victim had in fact left the house for answering the call of nature, it was not an act to commit suicide, but unfortunately she met with an accident with on going train and died on the spot. The trial Court has scrutinized the evidence correctly and specifically recorded that even family members of the complainant does not say about ill-treatment, cruelty or harassment to the victim by her in-laws. It is also recorded that, in fact, the first version of communication after the incident was to the effect that the victim was met with an accident by train, but ultimately petitioner - complainant has lodged a complaint against the accused. 5. In view of above facts and circumstances when there is no evidence to confirm the commission of crime by the accused, there is no reason to convict them. 6. Even otherwise this revision application is against the order of acquittal. Therefore, as per settled legal position, there is very limited scope to re-appreciated the evidence. 7. The jurisdiction of the Court in such revision petitions is limited by the statute itself, thereby prima-facie, the Court has to look into the issue regarding irregularity or illegality, if any, committed by the trial Court while passing the impugned judgment and whether the impugned judgment has ultimately resulted into miscarriage of justice or absolute injustice to either of the litigants. Therefore, this being the first revision against the order of acquittal, though this Court is empowered to re-appreciate the evidence, to examine that whether appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re-appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be re-appreciated or dealt with, only because of possibility of different opinion. Thereby, the Court has to be careful while re-appreciating the evidence in case of acquittal and decision of acquittal can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re-appreciated so as to convert the decision of acquittal into that of conviction of accused. To that extent, the Apex Court has categorically stated that in case of acquittal appeal or revision, the accused have got double benefit in their favour viz. (1) a standard rule of criminal jurisprudence that no-one should be believed as an accused unless there is proper proof and evidence against him and (2) in such cases of acquittal, the judgment of acquittal, which is otherwise confirming either innocence or lack of evidence against such accused. Therefore, respondent before us though they were accused before the trial Court, they are having a clear verdict in their favour by the trial Court that either they are innocent or there is lack of evidence so as to convict them and, therefore, in such cases, the re-appreciation of evidence is to be done with great care and order of acquittal can be interfered only and only if there is absolute and clear evidence without any doubt regarding commission of offence by such respondent. Therefore, the smallest benefit of doubt would certainly tilt in favour of the respondents in criminal appeal or revision. 8. If we peruse the entire evidence in its totality and if we consider the appreciation of such evidence, though there may be difference of opinion, if we re-appreciate the evidence, it is crystal clear that one cannot come to the conclusion that there is any irregularity or illegality and that the learned trial Judge has failed to consider such evidence as cogent and reliable evidence against the present respondents for confirming their guilt. To that extent, there is no reason to disapprove the appreciation of such evidence so as to interfere the decision of acquittal either into the decision of conviction or for retrial of the entire case as argued by the petitioner before this Court. 9. To that extent, there is no reason to disapprove the appreciation of such evidence so as to interfere the decision of acquittal either into the decision of conviction or for retrial of the entire case as argued by the petitioner before this Court. 9. It cannot be ignored that decision of acquittal cannot be converted into decision of conviction only because there is possibility of coming to different opinion or conclusion while appreciating the evidence on record by the Appellate Court. 10. Looking to the facts and circumstances and evidence on record as discussed herein above and more particularly as discussed by the learned trial Judge in the impugned judgment, having limited jurisdiction in revision application against order of acquittal, this Court is not convinced to interfere with the decision of acquittal merely because the victim prefers such revision, more particularly in absence of cogent and reliable evidence on record against the respondents. For coming to such conclusion, the reliance is placed upon the judgments of the Apex Court in Johar and Others Vs. Mangal Prasad and Anr. reported at (2008)3 SCC 423 and Sheetala Prasad and Ors. Vs. Sri Kant & Anr. reported at (2010)2 SCC 190 , which makes it clear that interference with judgment of acquittal is not permissible unless impugned judgment is perverse. The revisional jurisdiction u/ss. 397 and 401 of the Cr.P.C. is limited, more particularly when it is arising from a judgment of acquittal and it is not permissible for the High Court to analyse the depositions of all the witnesses and to re-appreciate the whole evidence. There must be any error of law on the part of the trial Judge and unless any evidence has been left out of consideration by the trial Judge or any irrelevant material has been taken into consideration, then and then the High Court has to re-appreciate the evidence. 11. In view of discussion herein above on facts, evidence and law point, I do not find any error of law or irregularity or illegality or perverseness in the appreciation of evidence and decision by the trial Judge, which does not permit this Court to come to any different conclusion even if entire evidence is examined herein above to convert the decision of acquittal into that of conviction or to order the re-trial as prayed for by the petitioner. The result is there is no substance in the petition, which deserves to be dismissed and, hence, dismissed. Rule is discharged.