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2016 DIGILAW 294 (GUJ)

Sharmilaben v. State of Gujarat

2016-02-08

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are filed against the impugned judgment and order dated 28.11.2008 passed by learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 268 of 2008. By the said judgment, accused No. 1 was held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life with fine of Rs. 1,000/- and, in default of payment of fine, further simple imprisonment of three months was imposed. Accused Nos. 2 and 3 were exonerated from the charges levelled against them. Being aggrieved by the impugned judgment, Criminal Appeal No. 3126 of 2008 is preferred by the accused against her conviction, while Criminal Appeal No. 327 of 2009 is preferred by the State against acquittal of accused Nos. 2 and 3. 2. The case of the prosecution is that the accused took up a quarrel with the complainant with regard to transaction of money. It is the case of the prosecution that on 21.6.2008, the accused ensued the quarrel and accused Nos. 2 and 3 had beaten the complainant and accused Nos. 1 and 3 poured kerosene on her and set her ablaze. It is alleged that by doing this, they have killed the victim. With these allegation, a case was registered against the accused persons. 2.1 Upon filing of the complaint, investigation was carried out and the accused were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1 Dr. Bhavin s. Shah. 10 2 Siddharth J. Rathod. 13 3 Dr. Manish B. Ghelani. 14 4 Lavliben M. Batunge. 16 5 Rajan K. Ladva. 18 6 Arjunsinh S. Rathod. 20 2.3 The prosecution has also produced and relied upon following documentary evidence:-- Sr. No. Description Exh. 1 Complaint. 19 2 Panchnama of the place of incident. 21 3 Inquest panchnama. 17 4 Panchnama of hair of the deceased. 22 5 Report under Section 157 of Cr.P.C. 26 6 Postmortem note. 12 7 FSL letter. 24 8 Report given by FSL. No. Description Exh. 1 Complaint. 19 2 Panchnama of the place of incident. 21 3 Inquest panchnama. 17 4 Panchnama of hair of the deceased. 22 5 Report under Section 157 of Cr.P.C. 26 6 Postmortem note. 12 7 FSL letter. 24 8 Report given by FSL. 25 2.4 At the end of trial, the Court below recorded further statements of the accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 3. Mr. N.R. Kodekar, learned advocate appearing for the appellant of Criminal Appeal No. 3126 of 2008-original accused No. 1 has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against accused No. 1. He also submitted that a false case is filed against her. He submitted that Dr. Manish Ghelani, PW-3, Exh. 14, has recorded first dying declaration of the deceased after an hour of the incident, however, because of extensive burns it was not possible to record her dying declaration, therefore, it cannot be relied. He further submitted PW-2, Siddharth Jaswantbhai Rathod, who happens to be the brother of the deceased has also not supported the case of the prosecution and stated that the deceased fell on the burning stove and received the injuries. PW-4, Lavliben Mohanbhai Batunge, Exh. 16 has also deposed in the same way and stated that this is an accidental death. He also submitted that there are serious discrepancies as far as recording of dying declaration is concerned, therefore, it could not have been relied to convict the appellant herein. He further submitted that the trial Court has committed an error in relying upon the evidence of the witnesses, though there are many contradictions and omission in their evidence. It is also submitted that there was no intention or motive on the part of the accused to commit the offence. In view of these, he submitted that benefit of doubt is required to be granted in favour of the accused and this appeal may be allowed by setting aside the conviction recorded against the accused by the impugned judgment. 4. On the other hand, Ms. In view of these, he submitted that benefit of doubt is required to be granted in favour of the accused and this appeal may be allowed by setting aside the conviction recorded against the accused by the impugned judgment. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 1 is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She has taken us through the evidence and contended that the trial Court has not committed any error in convicting the accused. Therefore, she submitted that the accused are rightly convicted and these Criminal Appeals filed by the accused may be dismissed. 5. As far as Criminal Appeal No. 327 of 2009 is concerned, Ms. C.M. Shah, learned APP appearing for the State has taken us through the evidence and contended that the trial Court has committed an error in acquitting accused Nos. 2 and 3 inspite of voluminous evidence against them and contended that the trial Court ought not to have acquitted the accused. She submitted that though the prosecution has examined 06 witnesses and also produced 08 documents in support of its case, the learned trial Judge has not properly appreciated them and acquitted the accused of the charges levelled against them. She submitted that the prosecution has successfully proved its case against the accused persons. She submitted that even the medical evidence supports the case of the prosecution. She submitted that considering the nature of burn injuries, it can be said that the accused Nos. 2 and 3 are also guilty of offence under Section 302 of IPC and since accused Nos. 2 and 3 have also attacked the deceased along with accused No. 1, they were all guilty of the offence in question and learned trial Judge has committed an error in acquitting them. She also submitted that the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 6. On the other hand, Mr. N.R. Kodekar, learned counsel for the respondents-accused submitted that there is no infirmity in the impugned order. She also submitted that the learned trial Judge has failed to appreciate the evidence on record in its proper perspective, therefore, the impugned judgment is required to be quashed and set aside by allowing present appeal. 6. On the other hand, Mr. N.R. Kodekar, learned counsel for the respondents-accused submitted that there is no infirmity in the impugned order. He submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondents-accused Nos. 2 and 3 of the charges levelled against them. He submitted that the prosecution could not prove its case beyond reasonable doubt. He has contended that so far as acquittal appeals are concerned, the law is well settled and by taking us through the impugned judgment, he submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 7. We have heard Mr. N.R. Kodekar, learned advocate for the accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the evidence on record. From the evidence of PW-3, Dr. Manish Bachubhai Ghelani, Exh. 14, on 21.6.2008 when he was on duty victim was brought to the hospital and she was conscious at that time. He further stated that the victim told him that accused No. 1 had poured kerosene on her and set her on fire. From the evidence of PW-5, Rajan Kantilal Ladva, PSI, Exh. 18, it is clear that the accused took up a quarrel with her and poured kerosene on her. It is also stated that accused No. 1 set her on fire. From these evidence and complaint, it is clear that this is not a case of accident and this is a case of culpable homicide amounting to murder. Therefore, we are of the opinion that accused No. 1 had committed the offence and the prosecution has successfully proved its case against the accused. Moreover, it is also not the defence on the part of the accused that anybody else has committed the offence. Therefore, Criminal Appeal No. 3126 of 2008 is required to be dismissed. 8. So far as Criminal Appeal No. 327 of 2009 is concerned, which is preferred against acquittal of accused Nos. 2 and 3, we have gone through the evidence on record. Therefore, Criminal Appeal No. 3126 of 2008 is required to be dismissed. 8. So far as Criminal Appeal No. 327 of 2009 is concerned, which is preferred against acquittal of accused Nos. 2 and 3, we have gone through the evidence on record. Looking to the charges framed against the respondents accused for the offence under Sections 302 of IPC, the prosecution has to prove its case beyond reasonable doubt. While passing the impugned judgment, learned Sessions Judge has given cogent reasons for not believing the case against accused Nos. 2 and 3. It is also clear that the prosecution has miserably failed in proving the case against these accused. It is also clear that the learned Judge has not committed any error while acquitting accused Nos. 2 and 3 of the charges levelled against them. It cannot be said that the learned Judge has committed any error while acquitting the accused as the prosecution could not prove its case beyond reasonable doubt. 9. It is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., (2006) 6 S.C.C. 39 , the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 9.1 Further, in the case of Chandrappa Vs. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; 42. State of Karnataka, (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles; 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 9.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 9.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. 9.3 Even in the case of State of Goa V. Sanjay Thakran & Another, (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 9.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of M.P. reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled. 9.5 In the case of Luna Ram Vs. Bhupat Singh and Ors., (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under:-- "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 9.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SC 321 , the Apex Court in para 4 has held as under:-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded R1 for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 9.7 It is also a settled legal position that in acquittal appeal, 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. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, AIR 1981, SC 1417, wherein it is held as under:-- "...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary ( (1967) 1 SCR 93 : AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 9.8 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary. 10. We have gone through the oral as well as documentary evidence on record and we are in agreement with the view taken by the lower Court. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents of the charges levelled against them. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal also. 11. For the foregoing reasons, Criminal Appeal No. 3126 of 2008 is dismissed. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain this appeal also. 11. For the foregoing reasons, Criminal Appeal No. 3126 of 2008 is dismissed. The impugned judgment and order dated 28.11.2008 passed by learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 268 of 2008 is hereby confirmed. The period of sentence already undergone by accused No. 1 be given set off to her. It is observed that life will not be life and upon completion of requisite period, case of the accused may be considered for remission. The accused No. 1 shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. 12. Criminal Appeal No. 327 of 2009 is dismissed. The impugned judgment and order dated 28.11.2008 passed by learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 268 of 2008 acquitting the respondents-accused Nos. 2 and 3 is hereby confirmed. 13. Bail bonds, if any, of the accused stands cancelled. Record and proceedings, if lying here, be sent to the Court below forthwith.