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2020 DIGILAW 417 (GUJ)

State of Gujarat v. Vakhatsinh Mansinh Parmar

2020-03-06

A.C.RAO, A.J.DESAI

body2020
JUDGMENT : A.J. DESAI, J. 1. The present appeal has been filed by the appellant-State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C.) challenging the judgment and order of acquittal dated 29.03.1996 passed by the Sessions Judge, Nadiad in the Sessions Case No. 126 of 1995, by which the Sessions Judge has acquitted all the three respondents- accused for the offence punishable under Sections 302, 498-A read with Section 114 of the Indian Penal Code (for short “the IPC”). 2. It has come on record that during the pendency of the appeal, the present respondents Nos. 1 and 2 have expired and therefore, the appeal stood abated against the respondents Nos. 1 and 2 and the case qua respondent No. 3, who is the original accused No. 3, is heard by us. 2.1 Though served, respondent No. 3 has chosen not to appear before the Court and therefore, the Court has requested learned advocate Mrs. Buch to assist the Court in the matter and accordingly, she had assisted the Court. 3. The case put forward by the prosecution before the trial court is as under. 3.1 That one Mangalbhai Chaturbhai PW-2, Exh.12, residing at village Angadh, District Vadodara, lodged an FIR at Exh.13 before Khambhat Rural Police Station on 20.10.1994 and alleged that one of his daughters namely Daulat had married with deceased respondent No. 1-Vakhatsing Mansing Parmar before one and half year. 3.2 That she returned at her parental home. She complained that her husband, father-in-law and mother-in-law were demanding tape-recorder from her parents and were used to torture her on petty issues with regard to house-hold works. It was also alleged that the husband had doubt about the character of his wife i.e. daughter of the complainant and he used to physically harass her. 3.3 On 19.10.1994, when he was at his job, he received a message that his daughter is sick and therefore, he went to matrimonial house of his daughter where he found dead body of his daughter was lying in the corridor. A number of persons had gathered there. When he removed the cloth, with which the dead-body of his deceased daughter was covered, he found some injuries on the neck and therefore, he asked for post-mortem by the Medical Officer of the Government hospital. A number of persons had gathered there. When he removed the cloth, with which the dead-body of his deceased daughter was covered, he found some injuries on the neck and therefore, he asked for post-mortem by the Medical Officer of the Government hospital. Accordingly, the post-mortem was carried out and it was found that due to fracture of hyoid bone, she had died. He, therefore, lodged the FIR against all the three accused. 3.4 Investigation was carried out by PSI Ranchhodbhai Gopalbhai Patel PW-13, Exh.29, who himself had recorded the FIR since he was in charge of the police station. The accused were arrested and on completion of the investigation, charge-sheet was filed before the concerned court of Magistrate. 3.5 The concerned court of Magistrate, having no jurisdiction to try the case, committed the same to the Court of Sessions Judge, Nadiad. 3.6 The charge Exh.4 came to be framed against all the three accused for the aforesaid offences, which was denied by them and accordingly, the trial commenced at the hands of the prosecution. 3.7 The prosecution examined in all 13 witnesses and produced number of documentary evidence in support of the case including post-mortem note. The respondents – accused did not examine any witness in support of their deposition. 3.8 On completion of the evidence, further statements of the accused under Section 313 of the Cr.P.C. were recorded. 3.9 The Sessions Judge, after having heard the learned advocates for the respective parties and examining the evidence and after scrutinizing the oral evidence of several witnesses, came to the conclusion that the prosecution had failed to establish the case put forward by it and acquitted all the accused from the aforesaid charges. Hence, this appeal. 4. Mr. L.B. Dabhi, learned Additional Public Prosecutor, by taking us through the evidence of the original complainant namely, Mangalbhai Chaturbhai PW-2, Exh.12, would submit that since the charge about committing murder of the deceased was against the respondent No. 1 Vakhatsing who had expired during the pendency of the trial, he would argue the case qua respondent No. 3 only, who is the mother-in-law of the deceased. 4.1 Mr. 4.1 Mr. L.B. Dabhi, learned APP, by taking us through the deposition of Mangalbhai Chaturbhai, the complainant, PW-2, Exh.12, would submit that the incident had taken place in the house of the deceased where all the accused were residing together and therefore, there is presumption that the respondent No. 3 has also abetted the offence of murder in which the main part was played by her son. He would submit that the deceased was subjected to cruelty and therefore, the accused should have been convicted under Section 498-A of the IPC. He has also taken us through the post-mortem note, Exh.11, which has been prepared by Dr. Devendra, PW-1, Exh.10 that the deceased was murdered and had succumbed to death due to strangulation. He, therefore, would submit that the appeal be allowed. 5. On the other hand, learned advocate Mrs. Buch would submit that the trial court has committed no error in acquitting all the respondents-accused from the charges levelled against them. She would submit that the Investigating Officer has tried to establish his case as if the lady was strangulated by using a rope or by wooden log, however, there are no ligature marks of rope in the person of the deceased. There are no blood stains found on the rope which was alleged to have been discovered at the instance of the deceased’s husband. She would submit that even wooden log is not discovered or recovered by the Investigating Agency. She would submit by taking the Court through the evidence of the father of the deceased and several relatives that prosecution has miserable failed in establishing even the case of abetment of murder by producing cogent and reliable evidence. Even there is no evidence of cruelty, except bare version of a relative nor submitted any type of other evidence. Therefore, the trial court has committed no error in acquitting all the respondents-accused from the charges. 6. We have heard learned advocates appearing for the respective parties. As stated hereinabove, the appeal is abated qua respondents Nos. 1 and 2, who happens to be husband and father-in-law of the deceased respectively. 6.1 So far as the respondent-accused No. 3, who is the mother-in-law of the deceased is concerned, we have gone through the depositions and documentary evidence produced on record. As stated hereinabove, the appeal is abated qua respondents Nos. 1 and 2, who happens to be husband and father-in-law of the deceased respectively. 6.1 So far as the respondent-accused No. 3, who is the mother-in-law of the deceased is concerned, we have gone through the depositions and documentary evidence produced on record. If the FIR, Exh.13 is perused, the main allegation about the murder is against respondent No. 1, who is the husband of the deceased, however, there are no specific allegations about abetment, however, general allegations about demand of tape-recorder have been made in the FIR. However, there is no material in support of such FIR produced during the trial. 6.2 It is also pertinent to note that there are no ligature marks on the person of the deceased and therefore, the case put forward by the prosecution that she was strangulated by a rope cannot be accepted, more particularly, when there is no wooden log, if she was killed by hanging. Such wooden log is not discovered or recovered during investigation. The trial court has rightly held that there is no evidence at all against the deceased respondents Nos. 1 and 2 and the present respondent No. 3 and hence we do not find any reason to interfere with the impugned judgment and order by which the respondents-accused have been acquitted. 6.3 In case of Muralidhar alias Gidda and Another vs. State of Karnataka, AIR 2014 SC 2200 , the Hon’ble Apex Court has laid down principles to be kept in mind while dealing with an appeal against the order of acquittal. The relevant paragraph 12 of the said judgment is reproduced as under: “12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court. (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal. (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified. (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” 6.4 Even in the case of Premsingh vs. State of Hrayana, (2013) 14 SCC 88 , the Larger Bench of the Apex Court has reiterated five parameters of dealing with the acquittal appeal. The relevant paragraph of the said judgment is reproduced as under: “6. The relevant paragraph of the said judgment is reproduced as under: “6. Having regard to the fact that in the instant case the High Court had thought it proper to reverse the order of acquittal passed by the learned Trial Court it will be appropriate to notice, though very briefly, the virtually settled position in law with regard to the power of the Appellate Court to reverse an order of acquittal passed by a Trial Court. 7. In a recent decision in Murugesan vs. State through Inspector of Police, this Court had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in Para-21 of the judgment may be extracted herein-under: “21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup is to be found in Para-42 of the Report in Chandrappa vs. State of Karnataka. The same may, therefore, be usefully noticed below: (SCC P. 432) “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 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. (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.” (Emphasis supplied) 7. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order of acquittal dated 29.03.1996 passed by the Sessions Judge, Nadiad in the Sessions Case No. 126 of 1995, is hereby confirmed. Bail bond, if any, shall stand cancelled. Registry to return the R&P, if any, to the trial court forthwith.