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2020 DIGILAW 60 (GUJ)

State of Gujarat v. Lalaji Javanji Thakore

2020-01-10

A.P.THAKER

body2020
JUDGMENT : 1. The appellant - State has preferred this appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 17.01.2008 passed by the learned Sessions Judge Banaskantha at Deesa (hereinafter be referred to as “the Trial Court”) in Sessions Case No.147 of 2007, whereby the learned Sessions Judge has acquitted the accused from the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code (hereinafter be referred to as “the IPC”). 2. Brief facts of the present case is that the complainant Vasramji Premji Thakore resident of Village Khodla (Badarpura), Taluka: Palanpur, District: Banaskantha has filed First Information Report (FIR) on 17.06.2007 alleging that his daughter deceased Kamuben was married with accused No.1 and other accused are her in-laws and on receiving phone call of Sureshji, brother-in-law of the deceased i.e. accused No.4, he went to the house of the in-laws of the deceased and found that his daughter was lying on cot in veranda in dead condition. It is averred that due to fear and shock, at the relevant time, he could not ask anything to the in-laws of the deceased and returned back to his house and informed his family members and after necessary funeral ceremony, he has filed the complaint alleging that the accused were harassing the deceased as she has not conceived though three years of marriage life has passed and taunting her as “vaanzani”. It is further alleged that whenever she came to the parental house, she was telling this fact to the family members. It is also alleged that due to constant harassment by the accused to the deceased, she committed suicide on 17.06.2007. It is further alleged by the complainant that his wife Nathiben has reiterated this fact before the City Police Station, Deesa where it was registered as A.D. No.9 of 2007 and the case was investigated under Section 174 of the Criminal Procedure Code, 1973 by the Deputy Superintendent of Police. In such investigation, the statements of various witnesses were recorded. According to him, since the action was not taken by the police, he himself has filed the complaint on 13.07.2007 against the accused persons. 3. In such investigation, the statements of various witnesses were recorded. According to him, since the action was not taken by the police, he himself has filed the complaint on 13.07.2007 against the accused persons. 3. On filing of the complaint filed by the complainant, the police has investigated the entire case and after getting necessary evidence against the accused and completion of the investigation, the charge-sheet came to be filed before the learned Judicial Magistrate, First Class, Deesa. 4. As the case was triable by the Court of Sessions, the learned Judicial Magistrate, First Class has committed the case to the Court of Sessions wherein it was registered as Sessions Case No.147 of 2007. 5. The Trial Court has framed the charges against the accused and explained the same to them. The accused have denied having committed any offence and pleaded for trial. Accordingly, the trial took place wherein the prosecution has examined seven witnesses which includes doctor, father, mother, matrimonial uncle of the deceased and two police witnesses and produced fourteen documentary evidence. Thereafter, further statements of the accused under Section 313 of the Criminal Procedure Code were recorded by the Trial Court, wherein, the accused have denied having committed any offence and pleaded that they are innocent. 6. After completion of the trial and having heard both the sides, the Trial Court has acquitted the accused from the charges levelled against them. 7. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the State has preferred the present appeal. 8. Heard Ms.Krina Calla, learned Additional Public Prosecutor for the appellant – State and Mr.S. L. Vaishya, learned advocate for the respondents at length. Perused the evidence on record as well as impugned judgment and order of the Trial Court. 9. Ms.Krina Calla, learned Additional Public Prosecutor for the appellant – State has vehemently submitted that the Trial Court has committed serious error of facts and law in acquitting the accused. While reading the materials on record, Ms.Calla, learned Additional Public Prosecutor has submitted that the complainant as well as his wife have categorically supported the case of the prosecution and their evidence has not been properly appreciated by the Trial Court. She has submitted that as the deceased has not conceived though three years of marriage life, there was mental harassment to the deceased and due to that, she has committed suicide. She has submitted that as the deceased has not conceived though three years of marriage life, there was mental harassment to the deceased and due to that, she has committed suicide. While referring to other evidence which includes police witnesses, she has submitted that the evidence is in a nature supporting the case of the prosecution and the cross-examination of the material witnesses has not in a nature to dislodge the prosecution case. She has submitted that the impugned judgment and order is not proper, and that the Trial Court has not given any cogent reason for acquitting the accused and the impugned judgment and order is cryptic in nature. According to her submission, the impugned judgment and order is not sustainable in the eyes of law and this Court being the first Appellate Court can re-appreciate the entire evidence. She has submitted that by re-appreciating the entire evidence on record, the impugned judgment and order of acquittal be quashed and set aside and the accused may be convicted and punished accordingly. She has urged to allow the present appeal. 10. Per contra, Mr.S. L. Vaishya, learned advocate for the respondents – accused has submitted that the Trial Court has properly appreciated the evidence on record and there is no any legal or factual error committed by the Trial Court in acquitting the accused. According to him, this being an acquittal appeal, even if the second view is possible, this Court may not exercise any jurisdiction to set aside the acquittal order. He has submitted that on perusal of the entire evidence on record, it clearly transpires that there is no iota of evidence to suggest that the accused were taunting and harassing the deceased and due to that, the deceased has died. He has supported the judgment and order of the Trial Court and prayed to dismiss the appeal. 11. On consideration of submissions of learned advocates of both the sides and material placed on record, it appears from the evidence of Dr.Bhikhabhai Ramabhai Ankediwala, P.W.2 at Exhibit 14 that he has carried out the postmortem of the deceased and found that there was no injury mark on the body of the deceased and deceased has died due to cardio respiratory arrest due to poisoning. He has deposed that due to poisonous substance, death could be possible. He has deposed that due to poisonous substance, death could be possible. Now, as per the Forensic Science Laboratory at Exhibit 28 (page No.51 and 52) of the paper-book, it was found that aluminum phosphide was found in viscera which is poisonous substance and “phosphine” gas was found from the blood sample. Thus, from this medical evidence and the FSL report, it clearly transpires that the death of the deceased was occurred due to poisonous substance. 12. On perusal of the evidence of Vasarambhai Premjibhai Thakore, P.W.3 at Exhibit 19, it appears that while narrating the relationship of the deceased with the accused, he has deposed that on the day of incident, the brother-in-laws of the deceased have come to his village and told him that his daughter is ill and, therefore, he along with them gone to matrimonial home of the deceased and found that his daughter was lying on the cot and died and, thereafter, due to fear, he went to his village. Thereafter, he narrated this thing to his brother-in-laws and, thereafter, his wife has lodged the police complaint. According to his version, as deceased was not conceived, accused were taunting her and due to that harassment, the deceased committed suicide. He has deposed that his wife has given the complaint for the incident and as the complaint was not properly investigated, he has filed FIR in the present case which is at Exhibit 20. He has deposed that when he has told the facts to his brother-in- laws, his son Hasmukh was also there. 12.1 During his cross-examination, he has accepted the fact that he has not narrated in the FIR that as his wife has filed the complaint, he did not file any complaint. He has accepted the fact about the incident being narrated by him to his near relatives has not been narrated in the FIR. He has deposed that he has never informed his community members nor has filed any police complaint for the alleged harassment by the accused to his daughter. 13. On perusal of the evidence of Nathiben Vasaramji Thakore, P.W.4 at Exhibit 21, it reveals that she is mother of the deceased. She has narrated that after seeing dead-body of her daughter, she went to Deesa Police Station and lodged the complaint and at that time, the police has told her to come on the next day. 13. On perusal of the evidence of Nathiben Vasaramji Thakore, P.W.4 at Exhibit 21, it reveals that she is mother of the deceased. She has narrated that after seeing dead-body of her daughter, she went to Deesa Police Station and lodged the complaint and at that time, the police has told her to come on the next day. She has deposed that the postmortem was carried out and they received the dead-body of the deceased. She has deposed that when the deceased was visiting parental home, she was telling her that the accused were telling her that as she has not conceived, since last three years, she should die. She has deposed that she has not given any statement before the police and the persons, who are with her, at the relevant time, given the statements to the police. 13.1 During the cross-examination, she has deposed that after 26th day of the death of her daughter, the police has recorded her statement and police has only asked her regarding name and age, no other fact was asked by the police. She has stated that when she went to Deesa Police Station, the police has taken her thumb impression only and no statement was recorded. 14. On perusal of the evidence of Tejaji Suraji Thakore, P.W.5 at Exhibit 22, it reveals that he is maternal uncle of the deceased and he has stated that somebody has administered poison to his niece. He has deposed that there was some sort of beating by the accused to the deceased and they were telling her that she is not conceived in three years of marriage. She has deposed that his niece has never told him anything directly but she used to tell this fact to his wife and in turn his wife has told him. At the same time, he has deposed that he has not narrated all these facts before the police. This witness has not supported the prosecution case. However, he has not been declared hostile by the prosecution. Thus, the evidence of this witness is also accepted by the prosecution. 15. At the same time, he has deposed that he has not narrated all these facts before the police. This witness has not supported the prosecution case. However, he has not been declared hostile by the prosecution. Thus, the evidence of this witness is also accepted by the prosecution. 15. On perusal of the evidence of the police which consists of Rameshbhai Devabhai Kavariya, P.W.9 at Exhibit 9, it appears that at the relevant time i.e. on 13.07.2007, he was PSO in the police station and at that time, he received the complaint recorded by the Deputy Superintendent of Police for registration and accordingly, he recorded the complaint and handed over the investigation to the PSI J. K. Bhatia. 15.1 During his cross-examination, he has produced all the documentary evidence on record. During his cross-examination, he has stated that the peon of the Dy.S.P. brought the complaint and accordingly, he has registered the complaint. But he has not taken any signature on the complaint of the complainant. He has admitted that the complainant has personally come to him and accordingly, he has obtained the signature on the FIR. He has accepted that on the check list at Exhibit 12, he has forgotten to take signature. Thus, from the evidence of this witness, it appears that he is simply a witness of registration of FIR and he has no knowledge whatsoever regarding the incident. 16. On perusal of the evidence Joravarsinh Kishorsinh Bhati, P.W.7 at Exhibit 24, it appears that at the relevant time, he was PSI in Deesa Police Station and he has investigated the present case and has recorded the statements of the witnesses and arrested the accused and, thereafter, he has filed the charge-sheet. It appears that he has not been cross-examined on behalf of the accused. However, it appears from his evidence that nothing is brought on record to suggest that the deceased was being harassed by the accused for not conceiving for three years of marriage life. Of course, from his evidence, it appears from his evidence regarding recording of A.D. No.9 of 2007 under Section 174. 17. Now, on consideration of the aforesaid facts, it transpires that the conduct of the complainant i.e. father of the deceased is not natural. Of course, from his evidence, it appears from his evidence regarding recording of A.D. No.9 of 2007 under Section 174. 17. Now, on consideration of the aforesaid facts, it transpires that the conduct of the complainant i.e. father of the deceased is not natural. According to his version, he has seen her daughter in dead condition on the cot of the residence of the accused and at the relevant time, he did not take any action for filing of the complaint and he has straightway went to his own village and as per his version, he has told regarding happening of the incident and, thereafter, he kept silent for 26 days. It also appears from the record that necessary ingredients of the alleged offence are missing in his evidence. At the same time, the evidence of the wife of the complainant is also not revealing any fact of the alleged offence. Of course, her version that she has gone to the Deesa Police Station, is corroborated by the accidental death entry before the police which is at Exhibit 12. However, from that document, it does not reveal that at the relevant time, any narration regarding harassment by the accused to the deceased and due to that, the deceased has committed suicide by taking poison is revealed. 18. It also appears from the evidence of the maternal uncle of the deceased that they have no personal knowledge regarding harassment by the accused to the deceased. Not only that but as observed hereinabove regarding the witness Tejaji that he has not supported the version of the prosecution and yet he has not been declared hostile and his evidence has been accepted by the prosecution. However, from his evidence, it appears that he has narrated that somebody has administered poison to the deceased. Thus, this witness creates another story. So also, the evidence of Hamirji at Exhibit 23 is also of hearsay in nature. 19. It is an admitted position that in an acquittal appeal, powers of the appellate Court is very much circumscribed as held in the case of Muralidhar @ Gidda and Another v. State of Karnataka reported in (2014) 5 SCC 730 , wherein it is held as under in paragraph 12: “12. .. .. 19. It is an admitted position that in an acquittal appeal, powers of the appellate Court is very much circumscribed as held in the case of Muralidhar @ Gidda and Another v. State of Karnataka reported in (2014) 5 SCC 730 , wherein it is held as under in paragraph 12: “12. .. .. (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 powers 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 demeanour 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; and (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.” 20. The Honourable Supreme Court in the case of Ghurey Lal v. State of Uttar Pradesh reported in (2008) 10 SCC 450 , has crystallized the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court’s acquittal in the following manner : “70. … 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. … 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in “grave miscarriage of justice”; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.” 21. So far as the offence under Section 306 of IPC is concerned, it has been well settled by the Honourable Supreme Court in the case of M. Mohan v. State reported in (2011) 3 SCC 626 , that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which leads the deceased to commit suicide leaving no option and this act must have intended to push the deceased into such a position that he/she commits suicide. 22. Now, on perusal of the impugned judgment and order of the Trial Court, it appears that there is some substance in the submission of the prosecution that the impugned judgment and order is in cryptic in nature as the Trial Court has narrated the arguments for acquitting made by the accused side and has accepted all the arguments of the defence. But the Trial Court has not elaborately dealt with the evidence for reaching out the conclusion regarding acquittal of the accused. But the Trial Court has not elaborately dealt with the evidence for reaching out the conclusion regarding acquittal of the accused. However, it appears that in cryptic manner, the Trial Court has narrated that there is no evidence revealed from the evidence of Vasarambhai as well as Nathiben that the deceased was being harassed by the accused be that as it may. However, on re-appreciating the evidence, it clearly transpires that necessary ingredients are missing in this case and, therefore, there is no cogent evidence for connecting the accused for the death of the deceased. 23. In view of the above, the present appeal is liable to be dismissed and accordingly, it is dismissed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.