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2016 DIGILAW 914 (GUJ)

Shantuji Divanji Solanki v. State of Gujarat

2016-04-28

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals arise out of the same judgment and order and hence, they are decided by this common judgment. 2. Challenge in these appeals is to the judgment and order passed by the learned Addl. Sessions Judge, Banaskantha at Deesa in Sessions Case No. 128/2008 dated 18.07.2011 whereby, original accused No. 1 has been convicted for the offences punishable u/s.498(A) and 302 IPC and original accused No. 2 & 3 have been acquitted of all the charges framed against them. For conviction u/s. 498(A) IPC, original accused No. 1 has been sentenced to undergo RI for three years and fine of Rs. 5000/- and in default, SI for thirty days; and, for conviction u/s. 302 IPC, original accused No. 1 has been sentenced to undergo imprisonment for life and fine of Rs. 10,000/- and in default, SI for thirty days. Both the sentences were ordered to run concurrently and the sentence already undergone by accused was given set-off. 3. Criminal Appeal No. 1064/2011 has been preferred by original accused No. 1 against his conviction; whereas, Criminal Appeal No. 1350/2011 has been preferred by the State against the acquittal of both original accused No. 2 & 3. 4. The original complainant, Popatji Kanaji Jadav, is a resident of Village Raner and is earning his livelihood from agriculture. Hansaben, the elder sister of complainant, was married to original accused No. 1 before about 15 years and two children were also born out of the said wedlock. It is the case of prosecution that few years after the marriage, original accused No. 1 used to ill-treat Hansaben and that he had also developed illicit relationship with original accused No. 3. Therefore, quarrels used to take place between Hansaben and original accused No. 1. 4.1 On 13.07.2008 the complainant received a telephonic message from the matrimonial house of Hansaben that Hansaben committed suicide. 4.2 A complaint in connection with the aforesaid incident was lodged with Shihori Police Station vide I-C.R. No. 50 of 2008. Necessary investigation was done and the accused persons came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 5. During the trial, the prosecution had examined the following witnesses ; Wt. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 5. During the trial, the prosecution had examined the following witnesses ; Wt. No. Name of Witness Exhibit No. 1 Dr. Devendra Nagindas Parmar 9 2 Pratapsinh Ranjitsinh Solanki 29 3 Gopalsinh Savsinh Solanki 30 4 Champuji Babaji Solanki 31 5 Popatji Kanaji Jadav 32 6 Manuben Kanji Dhudaji 40 7 Kanji Dhudaji 41 8 Ganpatbhai Hardasbhai 42 9 Kiritbhai Khimjibhai Pandya 46 10 Kanubhai Mahadevbhai Chaudhary 53 6. The prosecution had produced and relied upon several documentary evidence, particularly, Post mortem report at Exh. 10, panchnama of scene of offence at Exh. 12, inquest panchnama at Exh. 14, complaint at Exh. 33 and FSL Report at Exh. 50. 7. At the end of trial, the Court below recorded further statement of accused persons u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeals. 8. Mr. Himanshu Padhya, learned counsel appearing on behalf of original accused No. 1, submitted that the Court below committed serious error in convicting original accused No. 1 u/s. 302 IPC. It was submitted that the medical evidence on record shows that deceased died a homicidal death. Further, there is nothing on record to prove the involvement of original accused No. 1 in the crime. Hence, the Court below ought not to have convicted original accused No. 1 for the offence in question and he deserves to be granted the benefit of doubt. 9. Mr. Pranav Trivedi, learned APP, submitted that the Post mortem report (Exh. 10) proves that the deceased was strangulated to death and therefore, under no circumstances, it could be said that deceased died a suicidal death. It was further submitted that original accused No. 1 used to harass the deceased both mentally as well as physically, which has been proved by the prosecution. Hence, the Court below rightly convicted original accused No. 1 for the offence in question. 9.1 Learned APP, however, submitted that the Court below seriously erred in acquitting original accused No. 2 & 3. It was submitted that the evidence on record shows that both the accused played an active role in extending mental as well as physical torture to the deceased. 9.1 Learned APP, however, submitted that the Court below seriously erred in acquitting original accused No. 2 & 3. It was submitted that the evidence on record shows that both the accused played an active role in extending mental as well as physical torture to the deceased. Therefore, the Court below ought to have convicted both the accused with the aid of Section 114 IPC. Hence, the impugned judgment acquitting both original accused No. 2 & 3 deserves to be quashed and set aside. 10. We have heard learned counsel for both the sides and perused the documents on record. The prosecution has examined Dr. Devendra Nagindas Parmar as PW-1. He is the Medical Officer who performed autopsy of the deceased. As per his opinion, the deceased died on account of asphyxia due to strangulation. In column No. 17 of the Post mortem report (Exh. 10), the Medical Officer categorically recorded that a transverse circular ligature mark with deeply grooved and sideways pattern was present around the neck on the middle thyroid cartilage of the deceased. Considering the injuries found around the neck of deceased and the opinion given in the Post mortem report (Exh. 10), we have no hesitation in concluding that deceased was strangulated to death by using a nylon thread. 11. The prosecution examined the complainant, Popatji Kanaji Jadav, who is the brother of deceased, as PW-5. From his evidence, the prosecution has been successful is establishing that original accused No. 1 had illicit relationship with original accused No. 3 and that for that reason, quarrels used to take place between deceased and original accused No. 1. It has also come out that on different occasions, the deceased had even left her matrimonial house on account of the aforesaid dispute. Thus, the evidence of the complainant proves that there was motive for original accused No. 1 to commit the crime in question. 12. It is a matter of fact that the deceased died in her matrimonial house. The panchnama of scene of offence proves that nylon thread was found from the place where the dead body was lying. Thus, the evidence of the complainant proves that there was motive for original accused No. 1 to commit the crime in question. 12. It is a matter of fact that the deceased died in her matrimonial house. The panchnama of scene of offence proves that nylon thread was found from the place where the dead body was lying. It is by now well settled law that if the death of wife takes place within four walls of her matrimonial house and at such time when no other independent witness are present, then the husband has to give necessary explanation behind the death of his wife and that if the husband fails to give satisfactory explanation regarding her death, then adverse inference shall be drawn against him. 13. In the present case, original accused No. 1, who is the husband of deceased, has not given any satisfactory explanation regarding the death of deceased. In fact, the panchnama of scene of offence and the medical evidence on record proves that the deceased was strangulated to death with a nylon thread. 14. Considering the totality of facts and the evidence on record, we are of the view that the Court below has not committed any error in convicting original accused No. 1 for the offence in question. We are in complete agreement with the reasonings given by and the findings arrived at in the impugned judgment while convicting original accused No. 1 for the offence in question. 15. Insofar as the appeal filed by State against the acquittal of original accused No. 2 & 3 is concerned, it transpires from the record that there is nothing against both the accused to prove their involvement in the crime. Hence, the Court below was justified in acquitting both accused No. 2 & 3 of all the charges. It is by now well settled that the principle 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 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." 15.1 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. 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. 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." 15.2 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. 15.3 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." 15.4 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 MP 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. 15.5 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 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. 15.6 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 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. 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 ] 16. It is an undisputed fact that prosecution case is based upon circumstantial evidence and that there is nothing on record to prove that accused No. 2 or 3 had played any role in the entire offence. 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 persons. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents-accused No. 2 & 3 of all the charges. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below while acquitting original accused No. 2 & 3 of all the charges. Hence, the acquittal of original accused No. 2 & 3 deserves to be confirmed. 17. For the foregoing reasons, both the appeals are dismissed and the impugned judgment and order dated 18.07.2011 passed in Sessions Case No. 128/2008 stands confirmed. Hence, the acquittal of original accused No. 2 & 3 deserves to be confirmed. 17. For the foregoing reasons, both the appeals are dismissed and the impugned judgment and order dated 18.07.2011 passed in Sessions Case No. 128/2008 stands confirmed. In Criminal Appeal No. 1064/2011, the jail report shows that original accused No. 1 is absconding and therefore, immediate steps shall be taken to secure his arrest so that he could undergo the sentence imposed upon him. It is clarified that punishment of imprisonment for life imposed upon original accused No. 1 shall mean imprisonment for the entire term and that the State shall not grant him benefit of remission at any time. In Criminal Appeal No. 1350/2011, the bail bonds in respect of original accused No. 2 & 3 shall stand cancelled. Records and proceedings, if lying here, be sent to the trial Court concerned forthwith.