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Gujarat High Court · body

2016 DIGILAW 2130 (GUJ)

State of Gujarat v. Yogeshbhai Labhshanker Joshi

2016-10-19

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 19.10.2006 rendered by learned Presiding Officer, Fast Track Court No.6, Rajkot in Sessions Case No.79 of 2006. 2. The short facts giving rise to the present appeal are that deceased Bhavnaben had married with the respondent accused before six years from the date of incident. It is alleged that the respondent accused was not earning and used to quarrel with the deceased. It is alleged that the respondent accused used to subject cruelty to the deceased and since the deceased could not bear such cruelty, she committed suicide by igniting herself on 30.5.2006. Not only that the deceased also killed her two minor sons by igniting them too along with herself. 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 several witnesses and also produced documentary evidences. 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 the witnesses i.e. complainant, his two brothers and mother have consistently deposed that as the respondent was not working and he was remaining idle, due to which, he used to subject cruelty and harassment to the deceased, thereby the deceased committed suicide and also killed her two children by igniting them along with herself, but learned trial Court has ignored and not considered the said evidence in its proper perspective. He submitted that this is a case of serious offence wherein not only the deceased has committed suicide, but the deceased has killed her two sons by igniting them along with herself. 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 respondent is required to be convicted, as such. 6. On the other-hand, Mr. Tolia, learned advocate for the respondent 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. Tolia further submitted that on conjoint reading of the examination-in-chief as well as cross examination of the complainant wherein the complainant himself has admitted that the respondent was working and running pan shop and then was serving. He submitted that evidence of all relatives of the deceased is in the nature of hear-say and the said evidence has come on record on the strength of the information received from the deceased when the deceased used to visit her parental home and, therefore, this is not a legal evidence in the eye of law as laid down by the Honourable Apex Court in the case of Gananath Pattnaik Vs. State of Orissa, reported in 2002 SCC (Cri) 461 as well as in the case of Subhashbhai Chandubhai Patel Vs. State of Gujarat, reported in 2006 (3) GLH 724 . State of Orissa, reported in 2002 SCC (Cri) 461 as well as in the case of Subhashbhai Chandubhai Patel Vs. State of Gujarat, reported in 2006 (3) GLH 724 . He submitted that indisputably, at the time of committing suicide, the deceased herself has locked the room from inside and none was present there and no iota of evidence is coming on record so as to suggest either the respondent or anybody else has incited or abetted the deceased to commit suicide and hence, the proximate cause for abetment is missing and, therefore, the respondent cannot be linked with the offence under section 306 of IPC. 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 respondent 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. Tolia, 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 version, it is alleged against the respondent that he was not working and remaining idle, due to which, he was picking up quarrel and used to harass the deceased and subject her to cruelty, due to which, deceased Bhavna fed up and on 30.5.2005, she herself locked the house from inside, poured kerosene over children and herself and committed suicide and thereby the respondent has committed the offences punishable under sections 498-A and 306 of IPC. 8.1 PW 1 – Arvindbhai Lavjibhai Taraiyai, who is the complainant and brother of the deceased, has deposed that on 30.5.2006, his cousin has informed that Bhavna got burnt along with her two children and hence, he visited the Government hospital, Rajkot, at that time, she as well as both the children were found dead. The witness has deposed that he lodged the complaint on the same day. The witness has deposed that deceased Bhavna got married with the respondent about six years prior to the date of incident and she committed suicide due to subjecting her cruelty and harassment by the respondent. The witness has deposed that he lodged the complaint on the same day. The witness has deposed that deceased Bhavna got married with the respondent about six years prior to the date of incident and she committed suicide due to subjecting her cruelty and harassment by the respondent. The witness has deposed that when her sister visited her parental home, she used to appraise him as regards to harassment on the part of the respondent. In the cross examination, the witness has admitted that the deceased has studied upto 10th and she got married with the respondent in 1998 and there was time gap of about 1 and 1/2 years between the engagement and marriage. The witness has admitted that at the time of marriage, the respondent was running Pan Bidi shop at village Sapar, Veraval. The witness further admitted that thereafter the respondent shifted his residence to Rajkot where he was serving in the private firm and was residing in rented premises near market yard. 8.2 PW 4 – Dilipbhai Lavjibhai Taraiya, who is also brother of deceased Bhavna, has deposed that as the respondent was remaining idle and was not working, due to which, he used to pick up quarrel and subjected cruelty to the deceased, due to which, deceased Bhavna committed suicide. 8.3 PW 5 – Janbai Lavjibhai, who is the mother of the deceased, has deposed that when her daughter used to visit her parental home, she used to apprise her that the respondent is not working, due to which, he used to extend harassment and, therefore, her daughter came to parental home thrice on being displeased. 8.4 PW 6 – Dilipbhai Bhikhubhai Taraiya, who is cousin brother of the deceased, has deposed that cause of committing suicide is as the respondent was not working and remaining idle and used to extend the deceased cruelty and harassment. 8.5 PW 8 – Rajendrabhai Subhashbhai Joshi who is neighbour of the respondent has deposed that on getting the information of suicide, he reached to the place of incident and noticed that the room was locked from inside and they have opened it by using force; at that time, the deceased and her children were burning and they tried to douse them. 8.6 On overall analysis of the evidence on record, indisputably, there is no dying declaration and depositions made by the real brother, one cousin brother and mother are on the strength of the information given by the deceased to them. The fact that the respondent was not working and remaining idle, due to which, he used to subject cruelty to the deceased and hence, the deceased fed up and committed suicide along with children is also not getting corroboration from the depositions of the witnesses. However, the complainant himself has admitted that prior to the marriage and thereafter, the respondent was running Pan Bidi shop at village Sapar, Veraval and after shifting at Rajkot, the respondent was working in the private firm and he used to earn Rs.2000/- per month. In this view of the matter, entire story put forward by the prosecution as regards to idleness on the part of the respondent which resulted into harassment gets falsified from the evidence of the complainant himself. 8.7 It is the contention of learned APP that this is very tragic case wherein the deceased herself has not committed suicide, but she has committed suicide along with her two children and in such a case, the evidence on record is required to be viewed very seriously and that the judgment of acquittal is required to be reversed. In light of the decisions in the cases of Gananath Pattnaik (supra) and Subhashbhai Chandubhai Patel (supra) when the oral evidence relied upon by the witnesses on the strength of the oral statement made by the deceased is in the nature of hearsay, the same cannot be relied upon. Indisputably, in the present case, neither dying declaration is available on record nor any other evidence from the neighbour or independent evidence is available on record except the depositions given by the aforesaid near relatives who have deposed on the strength of the information received from the deceased when she was alive and the said fact also got falsified as the complainant himself has admitted in the cross examination. Therefore, by no stretch of imagination can the depositions of the interested witnesses be connected with the circumstances of the present case which resulted in the death of deceased Bhavna, on the contrary, the said evidence is to be treated as hearsay evidence. Therefore, by no stretch of imagination can the depositions of the interested witnesses be connected with the circumstances of the present case which resulted in the death of deceased Bhavna, on the contrary, the said evidence is to be treated as hearsay evidence. In this view of the matter, when there is no single piece of evidence which can be used against the respondent accused, this Court has no option but to confirm the judgment of acquittal rendered by learned trial Court. 8.8 So far as linking the present respondent with the crime in question is concerned, it is very difficult to link the present respondent with the crime in question keeping in mind the provisions of section 107 read with section 307 of IPC. Indisputably, as per the deposition of PW 8 - Rajendrabhai Subhashbhai Joshi, none was present and nothing is coming on record as regards to any sort of incitement or instigation that may be extended by the respondent. Therefore, evidence on record clearly suggests that there was no personal meeting, quarrel or any sort of exchange of words between the respondent and the deceased and his children. In this view of the matter, there appears no proximate cause of giving any sort of incitement and abetment to commit suicide and, therefore, the respondent cannot be linked with the crime in question. Under the circumstances, learned trial Court has rightly acquitted the respondent 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 respondent 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. 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 be sent back to the trial Court, forthwith. Appeal dismissed.