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Gujarat High Court · body

2016 DIGILAW 1492 (GUJ)

State of Gujarat v. Dipakkumar Babulal Teraiya

2016-07-26

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 28.9.2004 recorded by the learned Additional Sessions Judge, Fast Track Court No. 1, Gandhidham-Kachh, in Sessions Case No. 43 of 2002. 2. Brief facts of the case are that on 28.11.2001, daughter of the complainant-Trushna got married with Dipakkumar Babulal Teraiya-accused No. 1. After her marriage, the deceased-Trushna started living at her matrimonial home. On the occasion of her birthday i.e. on 7.1.2002 the deceased-Trushna came to her parental house along with her mother-in-law and stayed there for 11 days. During her stay, she did not complained anything about ill-treatment to her parents. Thereafter, she went to her matrimonial house along with her mother-in-law. She used to often talk to her parents through telephone but she did not complained about any ill-treatment meted out to her. However, one and half month prior to the incident, she had telephoned her mother and told her that her husband i.e. accused No. 1 had told that he had married with her against his wish. 3. It is further the case of the prosecution that one day prior to the incident the complainant and his wife went to the house of the deceased and met the in-laws of the deceased. Even in absence of her in laws she did not tell anything to her parents. After having dinner the complainant and his wife along with the in-laws of the deceased went to another house of the father-in-law of the deceased at that time, at about 11.00 p.m. in the night, the accused No. 1 came to the complainant and told him that his daughter was burning. They rushed to her matrimonial house and found that the deceased-Trushna poured kerosene on herself and set herself on fire in the bathroom. The deceased was taken to Rambag Hospital where doctor declared her dead. On this facts the complaint was filed with the police. During the investigation, the police seized a red diary purported to be written by the deceased. In the said diary it was written that the deceased took extreme step of suicide due to continuous harassment being meted out to her by the respondents. On this facts the complaint was filed with the police. During the investigation, the police seized a red diary purported to be written by the deceased. In the said diary it was written that the deceased took extreme step of suicide due to continuous harassment being meted out to her by the respondents. After due investigation, the police charge sheeted the accused for the offence punishable under Sections 306, 498(A) and read with Section 114 of the Indian Penal Code. 4. 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 leveled against them. Therefore, the present appeal. 4.1 At the end of the trial, after recording the statement of the accused under section 313of 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. 5. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 6. 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. 7. 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. 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 read with Section 114 of the IPC which requires to be reversed as such and the accused are required to be convicted. He has further argued that though a suicide note at Exh. 83 is available on record wherein, the deceased herself has mentioned that the respondent harassed her and subjected her to cruelty and due to which, she committed suicide, but the learned trial Court did not believe upon the suicide note. 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. 8. On the other hand, Mr. F.B. Brahmbhatt, 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 leveled against them. He has further argued that the learned trail Court has elaborately dealt with the evidence on record and assigned several reasons for discarding the evidence of suicide note as the prosecution failed to prove the writing of the deceased. He has further argued that neither the suicide note nor any oral evidence on record connect the accused with the crime and except complainant, none of the witnesses have supported the case of the prosecution. From the set of the evidence, the death of deceased is accidental and no iota of evidence is available to the effect that the accused have abetted her to commit suicide and consequently therefore, finding recorded by the learned trial Court is in consonance with the evidence available on record which calls for no interference. 9. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. 9. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. F.B. Brahmbhatt, learned advocate appearing for the respondents-accused. 10. 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 case, the deceased-Trushna got married on 28.11.2001 with the respondent No. 1 against his wish and therefore, they were ill-treating her and continuously harassing her due to which she committed suicide on 9.2.2002 by pouring kerosene over herself and setting her on fire and thereby the respondent committed offence punishable under Section 498(A), 306 read with Section 114 of the Indian Penal Code. 11. In order to prove the guilt on the part of the present respondents, the prosecution examined for about 9 witnesses and also placed several documentary evidences before the learned trial Court. PW-1-Rohit Kesavlal-father of the deceased has deposed that the deceased was his only child and she got married with respondent No. 1 and thereafter, she came to the parental home on 6.1.2002 and she stayed at her parental home for about 11 days. He further deposed that his wife told him that respondent No. 1-Dipak did not like the deceased because of the marriage is solemnized against his wish. He has further deposed that on the day of incident, he and his wife was also present at the house of the deceased and he lodged the complaint after a period of four days from the incident. He has further deposed that during the course of the investigation, a diary of the year 1999 was recovered wherein page of 9th November contained suicide note and the hand writing inserted in the diary was of his daughter. In the cross-examination, he has admitted that when his daughter was staying at her parental home for 11 days, she told nothing regarding her harassment and ill-treatment. He has further admitted that after the marriage of his daughter, the deceased used to call him but she never complained regarding any sort of harassment. He has further admitted that engagement ceremony of his daughter was held two years prior of marriage. He has further admitted that after the marriage of his daughter, the deceased used to call him but she never complained regarding any sort of harassment. He has further admitted that engagement ceremony of his daughter was held two years prior of marriage. He has further admitted that he did not lodge the complaint soon after the incident due to lack of evidence and there was no any other reason to lodge the complaint against the respondent. He has also admitted that his daughter was suffering from mental illness and she had been treated by psychiatric prior to her marriage and he clearly and categorically admitted in para 21 of the cross-examination that on the day of incident i.e. 9.3.2002, he was with his daughter in her matrimonial home but she did not complained any sort of harassment and ill-treatment on the part of the respondents. He has further admitted that various pages of the diary of the year 1999 were written by different persons. PW-2-Sobhaben Rohitbhai-mother of the deceased has deposed in similar lines to that of PW-1. 12. In view of the aforesaid nature of evidence, the prosecution has put more reliance upon the hand writing in diary of the year 1999, page of 9th November, 1999 at Exh. 82. On going through the aforesaid suicide note, it reveals that the deceased committed suicide due to harassment of her husband as well as sister-in-law (Jethani). As her husband was compelled to marry with her against his wish due to which he used to tell her to leave his home. The deceased has further written in the diary that the accused should get harsh/rigorous punishment. 13. On overall analysis of the evidence on record, as per the prosecution case, the aforesaid diary came to be recovered while drawing the panchnama of scene of incident, however both the panches have been examined and they have been declared hostile whereas, the diary had been recovered in their presence but in their deposition they have denied any such recovery in their presence. The suicide note which was purported to be written by deceased-Trushna was sent to the hand writing expert-PW-6-Himmatlal Bodani. The suicide note which was purported to be written by deceased-Trushna was sent to the hand writing expert-PW-6-Himmatlal Bodani. In his cross-examination, handwriting expert has admitted that his conclusion is based upon magnifying glass and he did not carry out any chemical examination and his conclusion was based upon hand writing which was tendered him as sample N-I alleged to have been written by deceased-Trushna. N-I is a form of the Gujarat Higher Secondary Education Board wherein certain columns have been filled up in ink and more particularly, in column-2, the name of the examinee is written as Bharat Trupti and the name of her husband is written as Rajkumar and other columns are also filled up by the examinee and at the end of form, signature is also made by the examinee as Bharat Trupti. The form is indisputably filled in on 30th September 2000 that means two years prior to the incident and one and half years prior to the marriage. Indisputably, neither Rajkumar is the father of deceased nor her husband. In that view of the matter the learned trial Court elaborately dealt with evidence of the father of the deceased as well as hand writing expert and arrived at conclusive findings that the prosecution has miserably failed to prove the validity of Exh. 82. 14. This Court has also perused the entire material available on record, and overall evaluation of the evidence on record, the prosecution has failed to prove the aforesaid writing as the hand writing expert opinion is based upon writing of N-I and writing of N-I is of another lady namely Trupti Rajkumar Bharat who is not the present respondent. In that view of the matter, reasons recorded by the learned Trial court is in consonance with the evidence on record, which calls for no interference. 15. 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 reasoning’s, when the reasons assigned by the Court below are found to be just and proper. 16. 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. 16. 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. 17. 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.