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Gujarat High Court · body

2016 DIGILAW 1775 (GUJ)

State of Gujarat v. Thakor Chanduji Gambhirji

2016-08-19

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 15.12.2004 rendered by learned Additional Sessions Judge, 3rd Fast Track Court, Patan in Sessions Case No. 273 of 2002. 2. The short facts giving rise to the present appeal are that the complainant filed the complaint before Vagdod Police Station stating the fact that his daughter named Zebarben was married with respondent No. 1 and after the marriage, she was residing with respondent No. 1. It is alleged that whenever the daughter of the complainant was visiting her parental house, she was complaining regarding ill-treatment from respondent No. 1 by saying that she is not liked by him. It is alleged that thereafter an agreement between the parties was made on 29.3.1992 to keep Zebarben happy and thereafter she was kept at her in-laws's house. It is alleged that in spite of the aforesaid agreement, harassment and ill-treatment were continued and the respondents returned the daughter of the complainant. It is alleged that again the daughter of the complainant was sent at the matrimonial home and on 2.1.1999, the complainant received the marriage that her daughter has committed suicide by falling herself in well. Hence, the complaint came to be lodged against the respondents accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the respondents 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 several witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statements 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. 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. Learned APP has taken this Court through the paper-book and evidence on record and argued that though there is ample evidence available on record wherein the parents as well as near relatives have supported the case of the prosecution, learned trial Court has not believed the said evidence and wrongfully given the benefit of doubt. In his submission, 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, Mr. Parikh, 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. Mr. Parikh further submitted that the accused cannot be linked with the crime in question as the complaint has been concocted a day after the incident. He submitted that on the day of incident, the uncle of the deceased has given report indicating nothing against the respondents and thereafter concocted the complaint. He submitted that even none of the independent witness has supported the case of the prosecution. He, 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 Mr. Parikh, learned advocate for the respondents accused. 8. 7. This Court has heard Mr. L.R. Pujari, learned APP for the appellant State and Mr. Parikh, learned advocate for the respondents 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 version, respondent No. 1 got married with the deceased for about 10 years prior to the date of incident. It is the case of the prosecution that said respondent No. 1 did not like Zebarben, due to which, he used to subject her cruelty as well as harassing her and other respondents were also harassing her, due to which, on 2.1.1999 Zebarben has committed suicide by falling herself in well situated in the agricultural field at village Abluva and thereby the respondents have committed the offence punishable under sections 498(A), 306 and 114 of IPC. 8.1 PW 1 - Samraji Gemarji has deposed that respondent No. 1 is his nephew and he got married with his daughter ten years prior to the date of incident and the deceased as well as respondent No. 1 were residing happily. The witness deposed that on the day of incident, for taking bath, the deceased went to well and due to accident, she slipped and fallen in well. PW 2 - Rekhaben Kevalji who is an independent witness has not supported the case of the prosecution. PW 3 - Dr. B.R. Patel has carried out autopsy of the dead body of the deceased and has given the report indicating the cause of death is Asphyxia (Prevention of air entry into the lungs) due to drawning. PW 5 - Matamji Talaji who is an independent witness has not supported the case of the prosecution. 8.2 PW 6 - Naranji Harchandji who is original complainant as well as father of the deceased has deposed that his daughter Zebarben got married with respondent No. 1 for about seven years prior to the date of incident. The witness deposed that initially she was being treated well for about a year and thereafter his son-in-law did not like his daughter and used to harass her. The witness deposed that initially she was being treated well for about a year and thereafter his son-in-law did not like his daughter and used to harass her. The witness stated that there was some strain relation and even on last Diwali festival, there was dispute and thereafter she was taken to the matrimonial home; at that time, the respondents executed writing that the respondents will keep the deceased well. The witness stated that after the aforesaid writing i.e. a month after, one Babuji arrived at his village in the evening and said that his daughter has fallen in well. The witness also deposed that his daughter has been killed by the respondents and she has not fallen in the well. In the cross examination, the witness has admitted that in a year, his daughter used to visit parental home for about four to five times and while she was sent back to matrimonial home, the respondents assured him to keep well her. The witness also admitted that on the day of incident, there was compromise talk between the respondents and the complainant's side and as that talk was not fruitful, due to which, they decided to lodge the complaint. The witness also admitted that his brother Mathur is very influential and he is also holding position in the District Panchayat. PW 7 - Mathurji Harchandji had deposed in the similar line to that of PW 6 - complainant. However, in the examination-in-chief as regards to the writing which came to be executed in favour of the respondents by the complainant as well as PW 7 dated 29.3.1992 at Exh. 35, he deposed that the said writing at Exh. 35 was executed by him as well as other two persons named therein. The witness also admitted that last two lines were added by PW 11 - Nadhaji Swaroopji. 8.3 PW 8 - Jababen Naranji who is mother of the deceased has deposed that Zebarben was his daughter and she used to visit frequently parental home. The witness stated that initially the deceased was treated well and thereafter the deceased was harassed. In the cross examination, the witness has admitted that she come to know from other person that she was being ill-treated. PW 9 - Suryaben Dalpatbhai, cousin sister and PW 10 - Ishwarji Motiji have deposed in the similar line to that of PW 8. In the cross examination, the witness has admitted that she come to know from other person that she was being ill-treated. PW 9 - Suryaben Dalpatbhai, cousin sister and PW 10 - Ishwarji Motiji have deposed in the similar line to that of PW 8. PW 11 - Nadhaji Swaroopji is the Sarpanch of the village who has also previously worked as mediator while executing the writing at Exh. 35 wherein two lines were added by him after the writing is over. 8.4 On overall analysis of the evidence on record, it is clear that, indisputably, the prosecution itself has produced the writing executed by the complainant and the witnesses in favour of the respondents on 29.3.1992 indicating that Zebarben used to harass the respondent No. 1 and other respondents wherein signatures of PW 7 and other witnesses are there. Not only that PW 7 who is real uncle of the deceased himself has also given the writing to the PSI, Vaghdod Police Station on 3.1.1999 indicating that he is resident of village Navagam, Taluka Deesa and he is having three brothers and his elder brother's daughter Zebarben got married with respondent No. 1 of village Abluva and she is having son aged about five years and she was residing with her husband; on 2.9.1999 at about 6.00 in the evening, one Babuji from Abluva came to his house and informed that Zebarben fallen in well and she has died. Thereafter, PW 7 informed his brother, Sarpanch and Ex-sarpanch and one Rabari Naranbhai and they all went to the place of incident and noticed that Zebarben was lying on the cot nearby the well in dead condition and that information, he precisely given to the police. 8.5 On overall analysis of the aforesaid evidence, except the real uncle, parents and brother, none of the independent witnesses have supported the case of the prosecution and even on going through their evidence also, they have exaggerated their version in their police statements as if deceased Zebarben has been killed by the respondents and thereafter dropped in the well. Precisely, that sort of evidence is given by them before learned trial Court. However, on evaluation of the evidence on record, it also reveals that the respondents have executed writing for keeping the deceased well and said fact also appears to be improved. Precisely, that sort of evidence is given by them before learned trial Court. However, on evaluation of the evidence on record, it also reveals that the respondents have executed writing for keeping the deceased well and said fact also appears to be improved. On the contrary, evidence on record clearly indicates that not the present respondents, but the complainant's side and their witnesses have executed the writing in favour of the respondents that the deceased will not extend any sort of harassment to them. Not only that but prior information given by PW 8 at Exh. 36 is clearly indicative of the fact that on the day of incident, they have not narrated any sort of harassment to the deceased which prompted the deceased to commit suicide. Even that could have been narrated or even a whisper is not coming out from Exh. 36. In this view of the matter, on failure in the compromise, the complaint lodged by the complainant appears to be concocted and taking into consideration the exaggeration and improvements made during the course of their depositions by the parents, uncle, brothers and sister of the deceased and the fact that none of the independent witnesses have supported the case of the prosecution, learned trial Court has rightly not believed the evidence of near relatives which is even contrary to their own writing at Exh. 35 and Exh. 36. Under the circumstances, learned trial Court has rightly acquitted the respondents accused considering the nature of evidence on record. 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 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. 11. In the result, this appeal fails and accordingly, it is dismissed. 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.