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2016 DIGILAW 1394 (GUJ)

State of Gujarat v. Dharmshi Devabhai Bhojani

2016-07-20

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 21.3.2005 rendered by learned Additional Sessions Judge, Rajkot in Sessions Case No. 85 of 2004. 2. The short facts giving rise to the present appeal are that respondent accused married with deceased Jabuben before twenty five years from the date of incident. It is alleged that after the marriage, the respondent accused was having illicit relation with Samjuben and Samjuben was staying with the respondent accused as concubine. It is alleged that therefore the accused was subjecting physical and mental torture to Jabuben and was also beating her. It is alleged that as the conduct of the respondent accused was so unbearable, deceased Jabuben committed suicide by pouring kerosene on her person on 3.6.2004. Hence, the complaint came to be lodged against the respondent accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondent accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined 19 witnesses and also produced documentary evidences such as panchnama of scene of offence Exh. 9, complaint Exh. 17, inquest panchnama Exh. 30 etc. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, 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 learned trial Court has failed to appreciate the evidence on record and 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. 5.1 Mr. L.R. Pujari, learned APP appearing for the appellant State has reiterated and urged the grounds mentioned in the memo of appeal. 5.1 Mr. L.R. Pujari, learned APP appearing for the appellant 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 learned trial Court failed to appreciate the evidence on record and wrongfully acquitted the accused though ample evidence is available on record for the alleged offences. In his submission, therefore, learned trial Court ought to have convicted the accused and hence, learned trial Court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the respondents are required to be convicted, as such. 6. On the other-hand, Ms. Subhadra Patel, learned Advocate for the respondents accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Patel further submitted that there is no iota of evidence available against the present accused. She submitted that none of the witnesses have supported the case of the prosecution, even real brother and her own daughter have not supported the case of the prosecution and they are declared hostile, on the contrary, they gave evidence in the nature absolving the respondent from the alleged offence. She, therefore, submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused, and therefore, the present appeal deserves to be dismissed. 7. This Court has heard Mr. L.R. Pujari, learned APP for the appellant State and Ms. Patel, learned advocate for the respondent accused. 8. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution case, the respondent accused got married with deceased Jaluben before twenty five years from the date of incident. It is the case of the prosecution that as the respondent accused was keeping illicit relation with Samjuben and was also keeping her as concubine and also used to harass and physical and mental torture, due to which, deceased Jaluben committed suicide on 3.6.2004 at 12.30 hours by pouring kerosene on her person. It is the case of the prosecution that as the respondent accused was keeping illicit relation with Samjuben and was also keeping her as concubine and also used to harass and physical and mental torture, due to which, deceased Jaluben committed suicide on 3.6.2004 at 12.30 hours by pouring kerosene on her person. 8.1 In order to prove the case against the accused, the prosecution has examined several witnesses. PW 4 - Bachubhai Tejabhai has deposed that deceased Jaluben is his sister and his parents have died. The witness stated that deceased Jaluben got married with the respondent accused before 25 to 27 years from the date of incident and she is having three daughters and one son. The witness stated that at the time of incident, the deceased was residing in rented premises along with the present respondent. The witness stated that respondent used to give physical and mental torture to deceased as he was keeping illicit relation with Samjuben. Thereafter, this witness is declared hostile. In the cross examination, this witness admitted that the house of his sister is about 100 feet away from his house. The witness admitted that while he was residing at Rajkot and after being released from jail, his sister Jaluben has never complained to him as regards to any cruelty or harassment meted out to her by the present respondent. The witness admitted that on the next day, the police came and taken his signature on the complaint, but he did not write the same. 8.2 PW 4A - Bachubhai Tejabhai who is also brother of the deceased has deposed that the accused was having illicit relation with one Samjuben and hence, the accused was ill-treating his sister. In the cross examination, the witness has admitted that he has no personal information as regards to the present complaint. PW 5 - Dhirubhai Bachubhai who is neighbor of deceased Jaluben has deposed that his uncle Dharamsi - respondent got burnt deceased Jaluben. The witness stated that Laxmanbhai informed him that Dharamsi - respondent has burnt Baluben and the same also, he has seen. However, in the cross examination, the witness has admitted that since last about 10 years, the deceased and the respondent were residing happily together. The witness admitted that he did not know as to how the deceased got burn injuries. However, in the cross examination, the witness has admitted that since last about 10 years, the deceased and the respondent were residing happily together. The witness admitted that he did not know as to how the deceased got burn injuries. 8.3 PW 6 - Hansaben Samatbhai who is neighbor and sister-in-law of the deceased has deposed that due to harassment and cruelty meted out to the deceased, the deceased has committed suicide. The witness stated that the respondent burnt the deceased and committed murder. Thereafter, the witness was declared hostile. PW 9 Sobhnaben Dharamsibhai who is daughter of deceased Jaluben has deposed that the respondent is her father and the deceased was her mother and her got burnt injuries while igniting earthen stove. The witness stated that relation of her father and mother was cordial and her father was not keeping illicit relation with any other woman. Thereafter, the witness was declared hostile. In the cross examination, the witness has admitted that while the incident occurred, her mother was cooking and due to flame of earthen stove, she caught fire. The witness further stated that there was no cordial relationship with her aunt and uncle. The witness also admitted that while rescuing her mother, his father also got burn injuries. 8.4 On overall evaluation of the evidence on record, it appears that PW 7 - Khemiben Laxmanbhai and PW 6 - Hansaben Samatbhai had improved their versions before learned trial Court and tried to implicate the present respondent with the crime in question as if he has committed murder which was not the case of the prosecution. Both these witness have deposed entirely different story before learned trial Court and, hence learned trial Court has rightly not believed their statements. So far as other oral evidence available on record is concerned, the said evidence is also not connecting the present accused with the crime in question as almost all the witnesses were declared hostile and in the cross examination, they have changed their versions and deposed that incident occurred while preparing the food by the deceased and she got burn injuries due to flame of earthen stove and the incident is accidental one. It has also come on record that while rescuing the deceased, the respondent also sustained burn injuries. 8.5 The evidence of PW 11 - Dr. It has also come on record that while rescuing the deceased, the respondent also sustained burn injuries. 8.5 The evidence of PW 11 - Dr. Maganlal Gordhanbhai also supports the story put forward by the witnesses during the course of cross examination of near relatives of the deceased. The witness has stated that he was on duty in the hospital on 3.6.2004 and at that time, respondent was brought to his hospital and he received about 40% burn injuries of second degree over his person. In the history of injuries, the witness has narrated that while rescuing the deceased, the respondent received burn injuries. The said fact is also recorded in the medical case papers and certificate. Even the Doctor who has carried out autopsy has also testified that there was no marks of kerosene over the person of the deceased and the injuries on the body of the deceased could have been possible by flame of earthen stove. 8.6 On overall analysis of the evidence on record, one story of accidental burn injuries sustained by deceased Jaluben is coming forth from the prosecution case which is also getting support from the medical evidence of the respondent accused while rescuing her and history was given to the Doctor who treated him. The second theory reveals from the prosecution is that due to harassment and cruelty meted out by the present respondent, the deceased has committed suicide. None of the witnesses have supported the second theory. The third story is also coming on record that the respondent committed murder of the deceased and the said story is put forward by PW 6 and PW 7 which is also not getting any support from the medical evidence. 8.7 In this view of the matter, learned trial Court has rightly acquitted the respondent accused considering the nature of evidence on record. There is no iota of evidence to link the accused with the crime in question. 9. 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. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents of the charges leveled against him. 10. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondents of the charges leveled against him. 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. 11. 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.