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Gujarat High Court · body

2016 DIGILAW 1413 (GUJ)

State of Gujarat v. Bhavani

2016-07-20

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 23.09.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 7, Surat in Sessions Case No. 153 of 2003 whereby the learned Sessions Judge has acquitted the respondents for the offence punishable under sections 306 and 114 of the Indian Penal Code. 2. The brief facts necessary for disposal of this appeal are that as per the prosecution version, the deceased Vipul was unmarried and was running the business of electronics in the name and style of Megha Electronics which is situated in Raghuvir Society of Amroli, Surat. The deceased Vipul used to go to the house of the present accused No. 1 Sapna for T.V. repairing at Room No. 206 of Amroli and they came in contact with each and other and the same has resulted into illicit relationship and Respondent No. 2 husband was also not objecting to the same. It is further the case of the prosecution that respondent No. 1 used to extort money from the deceased Vipul. Thereafter, respondent No. 1 and respondent No. 2 started demanding more and more money day by day and ultimately when the deceased stated that he does not have any money left, respondent No. 1 started insulting and inciting the deceased by saying that he should leave Surat and to commit suicide by lying down on railway track. It is further the case of the prosecution that on the date of the incident when the deceased was passing by Amroli vegetable market after closing his shop in the evening hours, he met the respondents there who warned him not to come to their house or not interfere in their marital life. Therefore, the deceased committed suicide by jumping before a train on the railway track and thereby committed suicide. Therefore, the complaint was lodged against the present respondents for committing the offence punishable under Section 306 read with Section 114 of the Indian Penal Code. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed charge-sheet before the court of the learned Judicial Magistrate First Class, Surat on 27.07.2003. 3. In pursuance of the aforesaid complaint, the Police recorded the statements of the witnesses and after completion of investigation, filed charge-sheet before the court of the learned Judicial Magistrate First Class, Surat on 27.07.2003. However, as the case was exclusively triable by the court of sessions, the same came to be committed to the Sessions Court, Surat under section 209 of the Code of Criminal Procedure, 1973. 3.1 Upon committal, the case was registered as Sessions Case No. 153 of 2003. Thereafter, the case was transferred to Fast Track Court on 13.04.2004. The Sessions Court framed charge at Exhibit 4. The accused persons denied the charge and claimed to be tried. To prove the case of the prosecution, the prosecution has examined as many as 15 witnesses and produced 21 documentary evidences. At the end of the trial, after recording the statement of the accused under section 313 of the Cr.P.C. 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. Heard learned Additional Public Prosecutor Mr. L.R. Pujari for the applicant-State and Mr. Darshan Dave, learned advocate for Mr. B.C. Dave, learned advocate for the respondents. 6. Learned APP Mr. L.R. Pujari has argued that though the parents of deceased have not supported the case of prosecution but on the strength of dying declaration of the deceased in the form of letter recovered from the dead body of deceased. He has further argued that the learned trial Court has not properly appreciated the evidence and on the basis of the surmises and presumptions has passed the order of acquittal, which is not permitted. He has, therefore, urged that the impugned judgment of acquittal conviction requires to be reversed. 7. Mr. Darshan Dave, learned advocate for Mr. B.C. Dave, learned advocate for the respondents supported the judgment of learned trial Court and he has argued that the parents have not supported the case of the prosecution and they are declared hostile and alleged dying declaration which are brought on record are not proved in accordance with alleged production of evidence and even the parents of the deceased themselves have not admitted the writing of the deceased. In that view of the matter, dying declaration are not proved and authorship as well as even the signature over the said declaration are also not proved by the persecution. Therefore, he urged that learned trial Court has not rightly relied upon the same. 8. P.W. 6 Venilal Prajapati at Exhibit 41 had stated that he has three sons and one of them is deceased Vipul who was running electronics shop which is situated in Raghuvir Society of Amroli, Surat and therefore, he refused to recognized the present respondent-accused on 05.05.2003 police arrived at place and informed that one dead body is recovered that was if son and some he did not know the relation of deceased with the present respondent and he has not supported the case of the persecution and he was declared hostile and he has not identified the writing as well as signature over the dying declaration. 9. Page No. 81, P.W. 9 Laxmiben, the mother of the deceased Vipul certified that the Vipul was unmarried and he was running a T.V. repairing shop and his shop is situated in Raghuvir Society of Amroli, Surat before that she did not know how his son is expired she was declared hostile. 10. Over the above, the parents of the deceased Panchas and make presence alleged the panchnama alleged to have been drawn are also turn hostile. 11. In view of the aforesaid nature of evidence, the only documentary evidence in the nature of dying declaration which is at Exhs. 29, 30 & 34 on going to the aforesaid dying declaration even alleged have been written by deceased Vipul wherein it is mentioned that the present respondent Sapna came in his life for about six years and she was playing with his life and she developed illicits relation with him by pretending as if she is loving him and consequently extracted money from him and when he left with no money, she rebuked and insulted him by asking him to commit suicide and to leave the Surat. In one letter, at Exh 30 he has narrated that if anything happened to his life it has nothing to do with Sapna, accused No. 1 and to let her live peacefully, and as he had fed-up with his own life and therefore, he is going to commit suicide. This letter dated 09.05.2003 was addressed to his parents. In one letter, at Exh 30 he has narrated that if anything happened to his life it has nothing to do with Sapna, accused No. 1 and to let her live peacefully, and as he had fed-up with his own life and therefore, he is going to commit suicide. This letter dated 09.05.2003 was addressed to his parents. Similarly, letters at Exhs 34 & 35 are same and they are in the nature of a complaint to the Commissioner of Police, Surat. In the aforesaid complaints, which are alleged to have been addressed by deceased on 03.05.2003 stating therein that he was running Megha Electronics in Kiran Apartment which is situated in Raghuvir Society of Amroli, Surat. Respondent No. 1 Sapna came into his life for about 6 years prior to the incident in question. It is stated in the complaint that Respondent No. 1-Sapna used to be nice with him and used to have a sweet talk with him and thereby they became close to each other and used to meet regularly which developed into having illicit relations with each other. It is further stated that Respondent No. 2 used to extract money from the deceased frequently and respondent No. 2 was aware about the illicit relations of the deceased and respondent No. 1. He used to give money ranging from Rs. 100 to Rs. 5,000 and respondent No. 1 was aware of the said fact. Thus, when the deceased fed up with such demands for money, both the accused persons have resorted to blackmailing him and used to abuse him to either leave Surat or to die and also by threatening him that they would lodge a complaint against him through their daughter and that he would be sent to jail, etc. He urged the Commissioner of Police to arrest both the accused and inquire into the offences. 12. As narrated above, the parents of the deceased have not supported the case of prosecution. Even the complainant himself became hostile and other witnesses also have not supported the case of the persecution. He urged the Commissioner of Police to arrest both the accused and inquire into the offences. 12. As narrated above, the parents of the deceased have not supported the case of prosecution. Even the complainant himself became hostile and other witnesses also have not supported the case of the persecution. In that view of the matter, the aforesaid letter which were recovered during the course of investigation are only the evidence available on record and on overall evaluation of the aforesaid letters, it appears that the deceased himself developed illicit relation with her with the present respondent and has stated therein he use to give money to the present respondent and not fruitfully continuously the demand of the present respondent he developed suicide and tendency and as reveals from the letters alleged to have been recovered from the dead body of the deceased. However, the parents of the deceased refused to identify the handwriting of the deceased as well as signature on the aforesaid letters. Thereof, in that view of the matter, the authenticity of the aforesaid letter could not be established. 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 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. 15. 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.