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2016 DIGILAW 1021 (GUJ)

State of Gujarat v. Jagdishkumar Ratilal Gehlot

2016-06-06

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : Anant S. Dave, J. 1. This appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973, (in short 'the Code' 1973), is preferred by the appellant-State of Gujarat against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Court No. 17, Ahmedabad, in Sessions Case No. 352 of 2004, dated 21.12.2005, whereby the respondent/original accused was tried and acquitted of the offences under Section 304(B), 306, 498(A) of IPC, as well as under Section 3 and 7 of the Prevention of Dowry Act. 2. The facts in nutshell giving rise to the present appeal are as under: "2.1 A complaint was filed on 07.09.2004, before Shahibaugh Police Station by the Complainant, father of the deceased Manjulaben that first marriage of his daughter Manjulaben had taken place with one Kantilal Prabhuji Mali of Deesa in the year 1993 and due to matrimonial discord, divorce was taken and second marriage was performed with respondent-accused Jagdish before two and a half years of the incidence in question. The daughter of the complainant was residing with her husband, mother-in-law and brother-in-law in the city of Ahmedabad and that on 07.09.2014, the son of the complainant received telephonic message from his landlord stating the fact that his sister Manjuben had committed suicide by hanging and complainant along with his son had gone to the house of respondent and seen Manjulaben hanging below the fan. on inquiry from the respondent, it was disclosed that around 13:00 hrs on that day his wife, Manjula told him to visit a fair at Madhupura and thereafter, to go at her parental house, to which the husband had replied that both of them would go together during evening hours but at the same time Manjulaben was told that she could go alone in the fair as well as the house of her parents, if she desired to go immediately. Soon after, the respondent had gone to a panshop and after returning home he knocked the door and as there was no response as the door was locked, he peeped inside from the window and found Manjulaben hanging below the fan and immediately informed the neighbour Rameshbhai a teacher, and thereafter, the incident was registered, investigated and tried upon committal by the Sessions Court. 3. 3. Before the learned trial judge evidence was led namely of complainant i.e. the father of the deceased, brother and Medical Officer who carried out Post-Mortem. In-depth examination of oral as well as documentary evidence during the trial was done. At the end, learned trial judge found that the prosecution has failed to establish much less prove its case and accordingly the respondent came to be acquitted of the charges. 4. Being aggrieved and dissatisfied by acquittal so ordered, the State Government has preferred this appeal and the learned APP has contended that the acquittal order by learned trial judge is based on conclusions reached after findings so recorded for which reasons are assigned, which are not based on proper appreciation of evidence on record and certain inferences drawn dehors the facts of the case and presumption drawn which are impermissible in criminal law. It is submitted that in case like this, it is difficult to find out direct evidence and oral evidence of complainant and other relatives who depose about ill treatment meted out to the victim including demand of dowry will surface on record in view of section 113B of the Evidence Act r/w. Section 304 of the IPC. Besides, medical opinion and testimonies do not exclude guilt of the accused and a careful perusal reveal injuries on neck before death, a circumstance in favour of the prosecution. Inter alia it is submitted that absence of any corroboration to the testimonies of father and brother of the deceased by itself is not fatal to the case of prosecution and nature of harassment and ill treatment meted out to the victim for which both the above witnesses have deposed in uncertain terms. Thus, it is submitted that acquittal based on incorrect appreciation of evidence resulting into acquittal of respondent deserves to be interfered with as prayed for. 5. Mr. Shakeel Kureshi, learned advocate appearing for the respondents/original accused would support reasonings findings on which conclusions are reached by learned trial judge and scope of interference by this Court exercising powers under Section 378 of the Code, 1973, against the judgment and order of acquittal as per settled parameters by the Apex Court namely the acquittal order by the trial Court is based on findings which are perverse or absolutely against the settled procedure of appreciating the evidence on record. Even if another view is possible, the view which supports the innocence of the accused is to be followed and in the facts of this case, even such possibilities remote, and therefore, the appeal deserves to be rejected. 6. We have perused the following exhibits and testimonies of PW-1 at Exh.9 Shri Badaji Jerupji Madi, and PW-2 at Exh.11, Shri Ramesh Badaji Madi, father and brother of the deceased respectively, as other witnesses namely Medical Officer, Civil Hospital Dr. Ramlakhan N Barnwal at Exh.25, who carried out PostMortem of the deceased including the P.M Report at Exh.26. 6.1 In the context, the complaint so lodged by the complainant to which by and large we adhere to the same testimonies, well supported by his son. But baring the above, we find nature of cause of death which is asphyxia due to hanging and column No. 17 of the P.M Report reads as under: "17. Ligature mark is present on neck in upper part above the level of thyroid cartilage On Lt side of neck- ligature mark is 7 cm long & runs slightly oblique & then horizontally it goes towards back of neck. On Rt side of neck Ligature mark is 8.5cm in length & goes upwards & obliquely towards back of right mastoid region. The breadth of ligature mark is 1.5 to 2cm in its course. The ligature mark is more distinct on right side of neck and comparatively faint on left side of neck. The ligature mark is in the form of dark brown band of skin and at places the ligature mark is abraded and is parchment like." 6.2 Dr. Ramlakhan Barnwal, who carried out the Post-Mortem, confirmed the nature of injuries on the body and reiterated that death of the deceased was due to asphyxia by hanging. It is to be noted that, the P.M Report is signed by panel doctors along with PW-7 Dr. Barnwal. Besides, there is no written complaint about ill treatment or any kind of cruelty including that of dowry demand by the deceased, who on earlier occasion while she had been subjected to cruelty during her first marriage had approached the authority for redressal of her grievance. Barnwal. Besides, there is no written complaint about ill treatment or any kind of cruelty including that of dowry demand by the deceased, who on earlier occasion while she had been subjected to cruelty during her first marriage had approached the authority for redressal of her grievance. We are not unmindful of the unfortunate incidence in which the complainant has lost his daughter, but at the same time in an appeal under Section 378 of the Code of Criminal Procedure, the scope of exercise of power is well defined by the Apex Court in various decisions and summary of guidelines which reads as under: "That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re- appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. That it is further well settled that even if two views are possible in an appeal against acquittal, the views taken by the trial Court if one of the possible views, then the view which favours the acquittal is to be not disturbed or interfered with". 6.3 Keeping law as above laid down by the Apex Court, we find that the learned trial judge has well appreciated the evidence oral as well as documentary on record and by assigning just reasons reached to findings about no guilt of the accused and the above conclusion suffer from no phase of perversity or any illegality and requires no interference of this Court. The appeal fails in its entirety and deserves to be dismissed. 7. For the foregoing reasons, the appeal is dismissed. The impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Court No. 17, Ahmedabad, in Sessions Case No. 352 of 2004, dated 21.12.2005, is hereby confirmed. R&P, if any, lying here be sent back to the Court below forthwith.