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Gujarat High Court · body

2016 DIGILAW 1162 (GUJ)

State of Gujarat v. Becharbhai Ajubhai Parmar

2016-06-22

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This is an appeal preferred by the State of Gujarat, under Section 378(3) of the Criminal Procedure Code, 1973, against the judgment and order of acquittal dated 1.2.2005, recorded by the learned Additional Sessions Judge, Fast Track Court, Gondal, in Sessions Case Nos. 43 of 2002, 44 of 2002, 45 of 2002 and 46 of 2002. 2. It is the case of the prosecution that on 20.1.2002, when the deceased-Nimu was residing at her matrimonial home at Viravaa, her in-laws came to meet her parents at her parental house and said that compromise was to be arrived at. Therefore, her brother came to her matrimonial home and saw that the deceased was lying on the floor covered with the clothes. Deceased-Nimu was married with the opponent No. 2-Vasram Bechar. It was informed that the deceased committed suicide at her matrimonial home. Accordingly, a complaint for the offences punishable under Sections 498(A), 306, 201, 176 read with Section 114 of the IPC, was filed before Lodhika Police Station. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed charge-sheet which came to be committed to the learned trial Court. After conclusion of trial and hearing, the learned trial Court acquitted the accused-respondents from all the charges levelled against them. Therefore, the present appeal. 3.1 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and after hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that the learned trial Court has failed to appreciate the evidence on record and has wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed as such. 6. Mr. L.R. Pujari, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. 6. Mr. L.R. Pujari, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper book and evidence on record and argued that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned trial Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents for the alleged offences under Sections 498(A), 306, 201, 176 read with Section 114 of the IPC which requires to be reversed as such and the accused are required to be convicted. Mr. Pujari, learned APP has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be converted into conviction as such. Mr. Pujari, learned APP has further argued that the mother and father of the deceased as well as police official and revenue officer have supported the case of prosecution and as per their evidence, the prosecution successfully established the will on the part of the accused which is not believed by the learned trial Court. He has further argued that the learned Additional Sessions Judge has taken very hyper technical view and not appreciated the evidence in its proper perspective and recorded the finding which is not in consonance with the evidence available on record. 7. On the other hand, Mr. Harshit S. Tolia, learned advocate appearing for the respondents argued that the learned trial Court has elaborately dealt with the evidence on record and rightly recorded the finding and acquitted the accused from the charges levelled against them. 7. On the other hand, Mr. Harshit S. Tolia, learned advocate appearing for the respondents argued that the learned trial Court has elaborately dealt with the evidence on record and rightly recorded the finding and acquitted the accused from the charges levelled against them. He further argued that except complainant, none of the witnesses have supported the case of the prosecution. It is clear case of natural death. As per the prosecution evidence, all the accused have been wrongly implicated and there is no iota of evidence to link the accused with the crime. He has further argued that the learned Additional Sessions Judge has recorded ample reasons for not believing the evidence of witnesses. He has further argued that though the prosecution examined 30 witnesses except the father and mother of the deceased, none of the witnesses have supported the case of the prosecution and even taking into consideration the evidence of police officials as well as revenue officers, it is clear emerging out that the deceased died due to natural death and the present respondents were wrongly chargesheeted. He has further argued that the evidence of parents of the deceased is not credible as during the course of recording evidence, they have made improvement and inconsistent statements and whatever the evidence they gave before the Court are not corroborated by evidence of other witnesses and therefore, the depositions of parents loses its credibility in absence of corroboration of several witnesses. 8. This Court has heard Mr. L.R. Pujari, learned APP for the appellant-State and Mr. Harshit Tolia, learned advocate appearing for the respondents-accused. 9. Having heard learned counsel for the respective parties and having gone through the impugned judgment as well as record and proceedings of learned trial Court, on overall analysis of the evidence on record, indisputably as per the prosecution version, for about one and half year prior to the incident, the were residing alongwith other accused-respondents and all the accused jointly and severally used to demand dowry from the deceased and her parents and were subjecting the deceased to cruelty due to which the deceased consumed poison and therefore, committed the offence under Sections 498(A), 306, 201, 176 read with Section 114 of the IPC. 10. 10. In order to prove the guilt on the part of the present respondents, the prosecution examined for about 30 witnesses and also placed documentary evidence before the learned trial Court. Out of the aforesaid 30 witnesses, majority of witnesses have declared hostile except parents and police officials as well as revenue officers. The PW-8-Bhalabhai who is the father of the deceased has deposed that the deceased got married with the respondent No. 2 one and half year prior to the incident and they were residing together alongwith other family members. He has further deposed that, initially she was residing at her matrimonial home thereafter due to some dispute, she was residing at her parental home. After compromise, she was taken to her matrimonial home. He has further deposed that on the date of incident, he was informed about the incident and thereafter he reached to the house of his son-in-law and found that his daughter was lying down covered with blanket and blood was oozing out from her nose and intestines came out from her body and thereafter he decided to lodge a complaint and he reached Lodhika Police Station but Police Officer-Shri Ramanik did not record the complaint. He has further deposed that there was mark of violence on death body which appeared to have been caused by the stick and knife. In the cross-examination, the defence has brought out a lot of improvements, he made during the examination in chief and material contradictions. PW-9-Labhuben Bhalabhai-mother of the deceased has examined and she has deposed that the deceased got married about one and half year from the date of incident and the present respondents-accused were demanding Rs. 1,00,000/- and on not fulfilling the demand of the accused, they murdered the deceased. In her cross-examination, she has admitted that she never gave any statement before the police and police has never inquired anything as regard to the incident with her. PW-10 Raghuveersinh has declared hostile. However, in his depositions, he has stated that on the day of incident, he did not visit the police station. PW-12-Gitaben was declared hostile. However, she has deposed that she was informed by the Bhalabhai-PW-8 and his near relatives about the incident and she did not went to lodge any complaint before the police station. She has further deposed that she gave the permission to carry out the post death ceremony of the deceased. PW-12-Gitaben was declared hostile. However, she has deposed that she was informed by the Bhalabhai-PW-8 and his near relatives about the incident and she did not went to lodge any complaint before the police station. She has further deposed that she gave the permission to carry out the post death ceremony of the deceased. PW-21-R.H. Lakhtaria -PSI has deposed that he was serving as PSI on 20th January, 2002 and on that day Bhalabhai visited the police station and stated that the body of the deceased was lying down covered with blanket. Thereafter, he directed him to ascertain as to whether the deceased was alive or not and then to come back if he want to lodge a complaint and he wrote down in the station diary. He produced the station diary during the course of the examination. PW-28-Dayalbhai Monhanbhai has deposed that he was serving as a Talati cum Mantri at village Khambha. He has further deposed that on 20th January, 2002, he entered the entry of death of the deceased and he tendered the death certificate as well as abstract of said registry at Exh. 70 and 71. Exh. 71- is the Death Register wherein death of Ninuben is entered and the said entry was made as per the information of brother of the deceased and he has also put the thumb impression in column 19. PW-29-N.V. Joshi-Police Official has deposed that the complainant has lodged the complaint before him and he recorded the complaint as per the information stated by the complainant and during the course of his examination, he has deposed that the material contradiction and improvement made by the complainant is brought on record. PW-30-J.J. Ghaghal has deposed that on 21.2.2002 he was incharge of the police station and he has further deposed that panchnama, investigation and statement of several witnesses was recorded by him. He further deposed that contradictions and improvements made by the witnesses were brought on record. 11. On overall analysis of the evidence on record, it is clearly emerging out that the death of the deceased is homicide. During the course of the investigation, most of the witnesses has turned hostile and the case of the prosecution reveals suicidal death. As per the evidence of PW-28-Dayabahi, the death of the deceased is established as natural death. 11. On overall analysis of the evidence on record, it is clearly emerging out that the death of the deceased is homicide. During the course of the investigation, most of the witnesses has turned hostile and the case of the prosecution reveals suicidal death. As per the evidence of PW-28-Dayabahi, the death of the deceased is established as natural death. None of the witnesses, except the father and mother of the deceased have supported the case of the prosecution and even if the evidence of parents of the deceased may be appreciated in its proper perspective, during the course of the trial they have made a lot of contradictions and improvements. They have alleged that the deceased was murdered by the accused though from the evidence of other witnesses, it clearly reveals that on the day of incident they were present at the seen of incident and thereafter they have visited their own house and then they decided to lodge a complaint, even though, they did not lodge the complaint on the date of incident i.e. 20.1.2002 and on the contrary as per the evidence of other witnesses and as per the prosecution, the parents declared that they are near relatives of the respondent No. 2-son-in-law. He is their nephew and his mother was sister of the complainant, therefore, they decided not to lodge the complaint. However, it is also revealed from the prosecution evidence that on the following day at about 12:00 p.m., after post death ceremony of the deceased, a quarrel took place between them due to which they lodged the complaint. However, while lodging the complaint on the next day, the parents of deceased lodged complaint in the aforesaid manner. It is totally inconsistent with the statements of the other prosecution witnesses as their version has been brought on record during the course of recording contradictions. In this view of the matter even if we may ignore the contradictions and improvements then also the evidence of parents of the deceased are not at all getting corroboration with the evidence of other witnesses who were assisting them while lodging the complaint. In that view of the matter, the learned trial Judge has not rightly believed their evidence. In this view of the matter even if we may ignore the contradictions and improvements then also the evidence of parents of the deceased are not at all getting corroboration with the evidence of other witnesses who were assisting them while lodging the complaint. In that view of the matter, the learned trial Judge has not rightly believed their evidence. Even otherwise also in view of the aforesaid nature of the prosecution version, having no uniformity as regard to the death of deceased, the prosecution itself has brought on record that the deceased died due to illness and the same has been entered in the Death Register by the brother of the deceased on the same day and in lieu thereof, he has also marked his thumb impression upon the Register and that has been brought on record. 12. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against them. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 13. 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. 14. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.