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Gujarat High Court · body

2020 DIGILAW 33 (GUJ)

State Of Gujarat v. Anil Babubhai Vaghela

2020-01-09

V.P.PATEL

body2020
ORDER : 1. The State Government has filed this appeal under Section 378(1)(3) of the CRPC 1973(for short 'the Code') being aggrieved and dissatisfied with the acquittal order dated 30.08.2007 passed by the learned Addl. Sessions Judge Fast Track Court at Gandhidham Trial Court No.4 (hereinafter referred to as learned Trial Court) in Sessions Case No. 21/2006. 2. Heard learned APP Ms. Jirga Jhaveri for the appellant. Though, rule is duly served upon respondent nos. 1 to 3 none has appeared on their behalf. This Court deems fit to proceed the matter in absence of the respondent-accused. The order under challenge: 3. The State Government has filed this appeal being aggrieved by decision and judgment of order dated 30.08.2007 by the learned trial Court under Section 235(1) of the Code and acquitted the respondent-accused for the offences punishable under Section 498(A), 306 read with Section 114 of the IPC. The arguments of the prosecution: 4.1 Learned APP has submitted that the acquittal order is contradictory to the law and facts. The learned trial court has not appreciated oral as well as documentary evidence available on record in true and proper perspective. The trial court has committed grave error in deciding the case. The prosecution has established all the ingredients of the offence and the trial court has failed to believe the case of the prosecution beyond reasonable doubt. 4.2 The physical and mental harassment to the deceased was caused by the respondent-accused and thereby the deceased had committed suicide. It is further submitted that the physical and mental trauma caused to the deceased and subjected her to the cruelty with the help of each other by the accused. 4.3 The prosecution has examined the complainant Kanuben Devjibhai Makwana who is the mother of the deceased, she has supported the case of the prosecution and narrated the incident and facts stated in the FIR. The prosecution has also examined Lilaben Makwana PW-2, Kishore Devjibhai Makwana -PW-3, Hirasingh Bhakti singh Rathod- PW-5 they have supported the case of the prosecution. It is further argued that the trial Court had given undue importance to the minor contradiction and influence in the evidence and committed grave error in acquitting the accused from the serious offence. Learned APP hence, requested to allow this appeal and quash and set aside the impugned judgment and order and impose punishment to the respondent-accused. It is further argued that the trial Court had given undue importance to the minor contradiction and influence in the evidence and committed grave error in acquitting the accused from the serious offence. Learned APP hence, requested to allow this appeal and quash and set aside the impugned judgment and order and impose punishment to the respondent-accused. The facts of the case: 5.1 The original complainant i.e., the wife of Vijay Gorabhai Makwana has filed the FIR for the incident took place on 12.08.2005 at 01.00 PM at Gandhidham Police Station. The FIR being registered CR.No. I- 353/2005 for the offences punishable under Section 306,498(a), 114 of IPC. After the investigation is completed the investigating officer has filed chargesheet before the learned Judicial Magistrate First Class Gandhidham. The said chargesheet is registered as Criminal case No. 2391/2005 on 03.10.2005. The learned Judicial Magistrate First Class has committed the case under Section 209 of the Code to the Sessions Court Bhuj at Kutchh. 5.2 It is stated in the complaint that at about 01.30 PM the son of the complainant Mr. Kishore came to her and given a message that Hansaben-deceased is burned and she is serious. Thereafter the complainant with her two sons went to Gandhidham sector 5 plot no. 240 where the deceased was residing. It is further stated that at about 07.00 PM they had seen her daughter Hansaben was burned on whole body and she had died. At that time the respondent no.2 who is the mother-in-law of the deceased was ran away and she had made inquiry from her nephew Anil about the incident. Thereafter the funeral was completed and they returned back to Rajkot and met the other family members and decided to file a complainant in police station. It is further stated that there was physical and mental harassment to the deceased by the respondent-accused. The respondent no.2 had not given sufficient food to the deceased and due to severe harassment the deceased has committed suicide. 5.3 The committed case was registered as Sessions Case No. 21/2006 in the court of sessions Gandhidham. The trial Court has framed the charge under Exh. 1. Thereafter, the prosecution has examined eight witnesses and produced the documentary evidence. The learned trial court has recorded the further statement under section 313 of the code. Having heard learned APP for the prosecution and learned advocate for the defendants. The trial Court has framed the charge under Exh. 1. Thereafter, the prosecution has examined eight witnesses and produced the documentary evidence. The learned trial court has recorded the further statement under section 313 of the code. Having heard learned APP for the prosecution and learned advocate for the defendants. The trial Court passed an order after considering the oral as well as documentary evidence. The learned trial Court has acquitted the respondent-accused for the offence punishable under Section 306, 498(A) read with Section 114 of IPC. General principles-Power of Appellate Court: 6. This Court has came across the cases in which Apex Court has summarised the general principles regarding the power of Appellate Courts which read as under: 6.1 The Hon’ble Apex Court has in the case of Mohinder Sing Vs. State of Punjab reported in AIR 2018 (SC) 3798 held as under:- “15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the orderof acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal. After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 , this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held 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 curtail extensive powers of an appellate court in an appeal against acquittal. (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 curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise 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.” The same principles were reiterated in number of judgments viz. Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297 , State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529 , Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690 , Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments. 6.2 In the case of Kallu alias Masih and others v. State of M.P., (2006) 10 SCC 313 , this Court held as under:- “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” Merits of the case: 7. On perusing the record the following undisputed facts are emerged which reads as under: (a) that the deceased Hansaben was died at home and she was not taken to the hospital for treatment. (b) no dying declaration of the deceased is recorded in this case. (c) the marriage period of the deceased is more than 13 years from the date of the incident, i.e. more than 7 years. (d) no eye witness has been examined in this case by the prosecution. 8. The original-complainant PW-1 Kanuben Devjibhai Makwana was examined at Exh.10, where she has narrated the whole incident as per her knowledge. This witness is not an eye witness to the incident and she has made allegation that the cause of death of the deceased is due to mental and physical harassment of mother-in-law and sister-in-law. Further, no specific date or place is mentioned in her deposition to this effect. The FIR was filed after consulting the other family members and relatives of the complainant. Thus the deposition is not helpful to prove the ingredients of the offence as charged. 9. The prosecution has examined witness PW-2 Lilaben Harjibhai Makwana at Exh. 11, she is an aunt of the deceased, she is also not an eye-witness to the incident. She has submitted that marriage was taken place before 13 years from the date of incident and the deceased has one daughter. She has admitted in her cross-examination that it is true that she has not seen any mental or physical cruelty given by the respondent-accused. It is also stated in the cross-examination that it is true that deceased Hansaben was suffering from piles and due to difficulty of piles disease she might have committed suicide. She has admitted in her cross-examination that it is true that she has not seen any mental or physical cruelty given by the respondent-accused. It is also stated in the cross-examination that it is true that deceased Hansaben was suffering from piles and due to difficulty of piles disease she might have committed suicide. Considering the evidence of the witness it is not helpful to prove the case of the prosecution. 10. The prosecution has examined PW-3 Kishore Devjibhai Makwana at Exh. 12 where he has stated that he was informed by his nephew Anil by telephone that Hansben has been burnt. He has admitted in his cross-examination that he came at Gandhidham and met deceased Hansaben before one month from the date of incident. He has also stated that it is true that Hansaben was suffering from piles disease. That nobody had subjected the deceased to any physical or mental cruelty during 10 day of stay at the residence of deceased. Considering the averments of these witnesses there is no allegation against the present respondent-accused as stated in the FIR. 11. The prosecution has examined PW-4 Dr. Lina Kantibhai Chauhan who had conducted the post-mortem report. The post-mortem report is at Exh.20. On perusing the deposition as well as the post-mortem report the cause of death is caused due to neurovascular shock following 100% extensive burns. By this witness the prosecution has established the only fact that the death of the deceased was unnatural and accidental. 12. The prosecution has examined PW-5 Hirabhai Rathod at Exh.22, PW-6 Rameshbhai Shirji Dedhiya at Exh.25, PW-7 Rajendra K Zala at Exh. 30 and PW-8 Narayansingh Bharamsinh at Exh.31. All these witnesses are police witness. They have no personal knowledge about the incident. Therefore, their evidence become formal. 13. The prosecution has produced documentary evidence ie, accidental death entry at Exh. 13, inquest Panchnama at Exh. 14, panchnama of scene of offence at Exh. 15, Yadi of the medical officer at Exh. 16 and 20, certificate of cause of death at Exh.21and complainant at Exh. 37. Upon perusing all the documents the prosecution has not established any link between the suicidal act to mental or physical harassment to the deceased. 14. In view of the evidence discussed as above, this Court is of the opinion that the prosecution has failed to establish that any abatement in the commission of suicide by deceased-Hansaben. 37. Upon perusing all the documents the prosecution has not established any link between the suicidal act to mental or physical harassment to the deceased. 14. In view of the evidence discussed as above, this Court is of the opinion that the prosecution has failed to establish that any abatement in the commission of suicide by deceased-Hansaben. No role of accused is established for abatement of suicide. Further, the prosecution has failed to establish that the accused-respondent no.2 and 3 being the relatives of the husband have subjected the deceased to cruelty. Thus, the prosecution has not established the ingredients of offences punishable under Sections 306, 498A and 114 of the IPC. 15. Considering the contents of memo of appeal, the arguments advanced by the learned APP and the learned advocate for the respondent, oral as well as documentary evidence as discussed above, facts and circumstances of the case, this Court is of the view that there is no perversity, illegality and impropriety in the impugned judgment. The prosecution has failed to prove the charges leveled against the accused. The trail Court has rightly acquitted the accused for the offences alleged. The present appeal deserves to be dismissed, hence, the following order is passed. : FINAL ORDER : (i) For the reasons recorded here-in-above, the present appeal fails and being devoid of merit is hereby dismissed. (ii) Bail bond be discharged. (iii) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (iv) R & P be sent back to the trial Court forthwith.