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Gujarat High Court · body

2016 DIGILAW 1835 (GUJ)

State of Gujarat v. Temubha Jivubha Garasiya

2016-08-31

R.P.DHOLARIA

body2016
JUDGMENT : R.P DHOLARIA, J. 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 07.02.2006, recorded by the learned Sessions Judge, Bhavnagar in Sessions Case No. 69 of 2001. 2. It is the case of the prosecution that the daughter of the complainant - Bharatiben married as per the hindu rites and rituals before one and half year. Out of said wedlock, one baby girl born named Jalpa. On the occasion of the marriage sufficient dowry was given. However, frequently the respondents - accused were demanding dowry. The accused no. 1 was beating her. When the deceased Bharatiben came to her parental house on Diwali, she narrated as to how she was subjected to physical and mental torture by her husband and in-laws on the point of dowry. They wanted T.V, Refrigerator etc. The accused no. 1 wanted scooter and money to purchase scooter. The complainant was not rich enough to provide illegal demand. On 22nd November, 2000 one unknown person came to the house of the complainant and informed that her daughter Bharati is burnt and admitted in Sir.T Hospital. They went there and found that his daughter was burnt on all over the body. The complainant inquired from the respondent accused no. 1 as to how such incident happened. No satisfactory reply was given. Accordingly, a complaint for the offences punishable under Sections 498(A), 306 read with Section 34 of Indian Penal Code was filed before Vartej Police Station vide C.R No. I-323/2000. 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. 4. 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. 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. 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.B Dabhi, 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 and 34 of the IPC which requires to be reversed as such and the accused are required to be convicted. Mr. Dabhi, 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. He has further argued that the learned 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. Learned APP Mr. He has further argued that the learned 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. Learned APP Mr. L.B Dabhi has taken this Court to the entire R & P and he has submitted that the parents as well as sister of the deceased have supported the case of the prosecution, learned Trial Court did not believe their evidence and wrongfully acquitted the respondents though the ample evidence was available on the record. Mr. L.B Dabhi, learned A.P.P has further argued that the judgment of the trial court is based upon the presumption and assumption and the learned trial court has failed to appreciate the evidence on the record in proper perspective and he has urged to convert the judgment of acquittal into conviction. 8. On the other hand, Mr. K.M Vaghera, learned advocate for the respondents has argued that the case of the prosecution and the evidence of parents as well as sister is clear indicating a lot of improvements and even there is no uniformity in the evidence of them. In view thereof, the learned trial court has rightly not believed the evidence of parents as well as sister of the deceased. He has further argued that the complainant as well as other witnesses have concocted the story as regards the demand of article as well as for the cash amount of Rs. 50,000/- for purchasing scooter. 9. As per the prosecution version, respondent no. 2 Mahendrasinh got married with the deceased Bharatiben and she was residing along with her husband and other respondents. The respondent no. 3 was demanding T.V, refrigerator and Rs. 50,000/- for purchasing scooter. As the demands of the respondents were not fulfilled, the respondents used to subject her to the cruelty and due to which she committed suicide and thereby, the respondents committed offence punishable under sections 498(A), 306 read with section 34 of the Indian Penal Code. 10. P.W No. 2 - Bairajba Babubha Zala wife of Babubha Dilubha Zala has deposed that her daughter Bharatiba was married to Mahendrasinh on 26.11.2001 The witness has stated that one unknown person came to her house and informed that her daughter got burnt. 10. P.W No. 2 - Bairajba Babubha Zala wife of Babubha Dilubha Zala has deposed that her daughter Bharatiba was married to Mahendrasinh on 26.11.2001 The witness has stated that one unknown person came to her house and informed that her daughter got burnt. Thereafter, they went and visited the hospital where the in-laws of the deceased Bharatiba were present and thereafter, postmortem was carried out and on the following day, they attended the post death ceremony of Bharatiben. When the deceased used to visit parental home, she used to complaint that the present respondent no. 3 was demanding Rs. 50,000/- as well as T.V and refrigerator and even they were not serving food to her for about 8 to 10 days and were continuously subjecting her to the cruelty. In the cross examination, she admitted that prior to marriage, engagement was made for about one and half year and at that time of marriage, there was cordial relation and thereafter also, at the time of delivery, there was cordial relation. In her cross examination, certain improvements as regard to causing the cruelty to the deceased by way of not providing food for about week or more days as well as other things are brought on the record. 11. P.W No. 3 - Babubha Dilubha Zala has also deposed in the similar line to that of P.W No. 2. 12. P.W No. 4 - Sitaba Babubha Zala who is siter of the deceased Bharatiba has not supported the case of the prosecution and she has been declared hostile. 13. P.W No. 5 - Devuba Pravinsinh has deposed that the deceased Bhartiba got married with Mahendra and out of said wedlock, she had one daughter. Prior to her death, deceased Bharatiba was subjected to cruelty by the present respondents. The present respondents used to beat her as she did not fulfill the demand of Rs. 50,000/- which was demanded for purchasing the scooter. Even in the cross examination, she has admitted that she had not stated anything in her statement in respect of beating the deceased by the respondent as well as the demand of money for purchasing the scooter. 14. P.W No. 8 - Dr. Vijaybhai Chatrabhuj Ramdevputram deposed that on 22.11.2000 while he was on duty in Sir.T Hospital, Bhavnagar, a dead body of Bharatiba was referred to him for carrying out postmortem. 14. P.W No. 8 - Dr. Vijaybhai Chatrabhuj Ramdevputram deposed that on 22.11.2000 while he was on duty in Sir.T Hospital, Bhavnagar, a dead body of Bharatiba was referred to him for carrying out postmortem. He carried out postmortem and she received several burn injuries and according to him, he died due to shock as a result of burn injuries. 15. On the overall analysis of evidence on the record, it appears that mother who is the complainant as well as father have deposed and in their evidence before the court made several improvements and even the complaint has been lodged for about 18 days after the incident though they have participated in the post funeral ceremony as well as they have also visited the deceased while she was admitted in the Civil Hospital. In that view of the matter, the entire evidence of the parents becomes doubtful as the complaint is lodged after about 18 days and the material improvements made therein. The evidence of sister Devuba - P.W No. 5 wherein in her cross examination itself, she has admitted that she did not state anything as regards to demand of Rs. 50,000/- for purchasing the scooter and in view thereof, her entire evidence becomes meaningless. 16. Indisputably, there is no dying declaration on the record and the prosecution case was rested upon only oral evidence of the parents as well as sister, which is not consistent and having a lot of improvements though the complaint came to be made for about 18 days after the incident is revealing from the record and proceeding and in that view of the matter, the learned trial court has rightly not placed any reliance over the evidence of the parents as well as sister which calls for no interference. 17. 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. 18. 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. 18. 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. 19. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands canceled. R & P to be sent back to the trial Court forthwith.