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2016 DIGILAW 485 (GUJ)

State of Gujarat v. Mohmad Yusuf Ali

2016-02-29

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code", for short) is filed to question the legality and validity of the judgement and order of acquittal dated 12/10/2004 passed by learned 2nd Additional Sessions Judge, Rajkot in Sessions Case No. 52 of 1998 whereby the respondents are acquitted of the offence punishable under sections 323, 504, 306, 498(A) read with section 114 of the Indian Penal Code. 2. The facts of the prosecution in chief as narrated by the de-facto complainant Karimbhai Kasambhai are that the complaint being Cr. No. I-617/91 filed at C-Division Police Station, Rajkot is that his daughter Nurjaha's marriage was solemnized 7 years prior to 13/12/1995 with accused No. 1 Monhamad Yusuf Ali. Accused No. 2 Mumtaz Yusuf Ali is sister-in-law of the deceased and sister of accused No. 1. After her marriage, Nurjaha was staying with the accused at Kothariya Colony in Quarter No. 103 at Rajkot. During the said period, the accused was beating her and also causing her mental and physical harassment. Therefore, by getting frustrated in her life, on 13.12.1995, she poured kerosene to her body and set herself on fire and committed suicide because of the mental and physical cruelty for which she was subjected by the accused herein in furtherance to their common intention and hence, they have committed offences punishable under section 323,498(A), 306 read with section 114 of Indian Penal Code. 3. After completion of investigation, the police has filed charge sheet before the Judicial Magistrate First Class for offences punishable under section 323, 498(A),306 r/w 114 of the IPC. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, led evidence. At the conclusion of the trial, the learned Judge was pleased to acquit the accused from the charges, which were framed against them. This appeal is filed against the said judgement, as the Second Additional Assistant Sessions Judge - Rajkot has failed to properly appreciate the evidence available on record of the case and legal provisions applicable to the facts of the case. 4. I have heard Ms. Nisha Thakor, learned APP for the State. Ms. Banna S. Dutta, learned advocate for the respondent is absent. 5. 4. I have heard Ms. Nisha Thakor, learned APP for the State. Ms. Banna S. Dutta, learned advocate for the respondent is absent. 5. Before delving upon the merits of the case, it is necessary to take note of certain decisions of the Supreme Court, wherein the powers of this Court while dealing this acquittal appeal are explained: " In case of Chandrappa Vs. State of Karnataka [ (2007) 4 SCC 415 ], the Supreme Court has laid down following principles concerning acquittal appeals are as under: "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, reappreciate 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." Again in case of State of Goa Vs. 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." Again in case of State of Goa Vs. Sanjay Thakran & Anr [(2007) 3 SCC 75], the Supreme Court has propounded the following proposition: [1] An appellate court has full power to review, reappreciate 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." In case of Mookiah and Anr. Vs. State rep. By the Inspector of Police, Tamil Nadu [ AIR 2013 SC 321 ], the Supreme Court has held that: "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 levelled against them. Vs. State rep. By the Inspector of Police, Tamil Nadu [ AIR 2013 SC 321 ], the Supreme Court has held that: "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 levelled 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 RI 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 reappreciate 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 v. Sohan Lal and others, (2004) 5 SCC 573 : ( AIR 2004 SC 4520 : 2004 AIR SCW 4321)]" In case of State of Karnataka Vs. Hemareddy [ AIR 1981 SC 1417 ], the Supreme Court has held as under: "...This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary, (1967)1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial 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." 6. It is contended by Ms. It is contended by Ms. Thakor, learned APP that though the witnesses have not supported the prosecution case, the exh. 6 dying declaration of the deceased reveals that she was subjected to cruelty by the respondents. She has further contended that the evidence of Monhmad Yusuf Ali (exh. 5) shows that the deceased was conscious and was in a fit state of mind to give dying declaration. She further submits that necessary certificate as to the fitness of the witness was obtained and therefore, the learned Trial Judge ought to have relied upon the dying declaration of the deceased to record the order of conviction against the respondents. 7. It is her further contention that as per the proposition of law expounded by the Supreme Court, the conviction can be recorded on the basis of the dying declaration if the dying declaration inspires the confidence of the Court and the dying declaration of the deceased is free from the blemish and therefore, she has urged that the appeal may be allowed. 8. It was the prosecution case that the deceased Nurjahan Mohmedbhai was subjected to the cruelty by the respondents in connection with day to day house hold work. It was further case of the prosecution that she was subjected physical cruelty by respondent No. 1 at the instance of other accused persons. Therefore, to examine the prosecution case, we have to fall back upon the witness examined by the prosecution to prove its case. During course of the trial, it appears that as many as nine witnesses were examined but the important witnesses, who were the close relative of the deceased have not supported the prosecution case. These witnesses have very clearly stated in their respective oral evidence before the Court that the deceased Nurjahan was not subjected to any kind of mental or physical cruelty by the respondents. 9. So far as the dying declaration (exh. 6) is concerned, it reveals that the deceased had stated before Executive Magistrate that she was subjected to physical ill treatment by her husband i.e. respondent No. 1 and others were teasing her. She further stated that their used to be quarrel in the house in respect of day to day house hold work and on the day of incident, she had squabble with her sister in law (Nanad). She further stated that their used to be quarrel in the house in respect of day to day house hold work and on the day of incident, she had squabble with her sister in law (Nanad). Even if the dying declaration is believed on its face value as submitted by Ms. Thakor, learned APP, it seems that the allegations were made therein are very general. No details are given in respect of the so called ill treatment mated out to the deceased or the cause of the quarrel on the fateful deny. Moreover, it becomes vividly clear from this dying declaration that there was some unrest in the matrimonial house of the deceased on account of day to day house hold work. Such day to day squabbling in the matrimonial house for the house hold work is the normal wear and tear of the married life, which is hardly enough to connect the accused persons for the offence more particularly punishable under section 498 of the I.P. Code. Considering the overall facts of the case and the oral evidence obtainable on record of the case, I am of the opinion that the prosecution has failed to prove his case against the respondents beyond the reasonable doubt and learned Trial Judge has not committed any error in recording the judgement and order of acquittal of the respondents. 10. For the foregoing reasons, the appeal lacs merits and therefore, the same is dismissed. The judgement and order of acquittal dated 12/10/2004 passed by learned 2nd Additional Sessions Judge, Rajkot in Sessions Case No. 52 of 1998 is hereby allowed. 11. R&P is directed to be remitted to the Trial Court forthwith.