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2022 DIGILAW 522 (GUJ)

State Of Gujarat v. Somabhai Akhibhai Sondarva

2022-04-13

RAJENDRA M.SAREEN

body2022
JUDGMENT : 1. The State being prosecuting agency has preferred this appeal under Section 378 of the Criminal Procedure Code against the judgment and order dated 07.02.2008 rendered by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.4, Veraval camp at Una in Sessions Case No.24 of 2007. 2. The short facts giving rise to the present appeal are that, deceased was wife of respondent – accused Somabhai Akhibhai Sondarva. On the date of incident i.e. on 21.03.2007, four years have been passed of their married life. For one year after marriage, both – accused and deceased lived happily. But after period of one year, when deceased was not able to conceive a child, respondent – accused started giving her mental and physical torture and when such harassment was gone out of limit, deceased committed suicide by hanging herself. Therefore, complainant filed a complaint against the accused for the alleged offences under Section 498(A) and 306 of the Indian Penal Code. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused. The charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined several witnesses and also produced several documentary evidence. 3.2 After appreciating the oral as well as documentary evidence, the trial Court has delivered the judgment, as stated above. 4. Being aggrieved by the same, the appellant - State has preferred the present Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of acquittal. It is further contended that learned trial Judge has erred in evaluating the evidence on record and without appreciating the evidence in its proper perspective acquitted the accused and therefore, the impugned judgment and order of acquittal is required to be reversed, as such. 6. Learned APP Mr. R. C. Kodekar appearing for appellant - State has reiterated and urged the grounds mentioned in the memo of appeal. 6. Learned APP Mr. R. C. Kodekar appearing for appellant - State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper-book and evidence on record and argued that the mother, brother and other family members of the deceased have clearly deposed that there was constant harassment to the deceased, since she could not conceive child. He further submitted that only four years married life was there and there was constant harassment, because of which, she committed suicide by hanging herself. 6.1 Learned APP has further submitted that deposition of complainant, who is brother of the deceased is at Exh.30, which is fully getting corroboration from the evidence on record. Learned APP has further submitted that deposition of mother of the deceased is at Exh.34, wherein she has also stated that her daughter has committed suicide because of torture and harassment of the respondent – accused. 6.2 He has further submitted that the trial court has failed to appreciate the evidence on record and wrongly recorded the judgment of acquittal which is required to be reversed and the accused is required to be convicted, as such. 7. On the other hand, learned advocate Mr. Madansingh O. Barod for the respondent accused has taken this Court through the record and proceedings and argued that if there was mental and physical torture by the accused as alleged, then there was no complaint filed against the accused before present complaint. He has also submitted that there is material contradiction in statement of the complainant and original complaint. He has further submitted that no independent witness has been examined by the prosecution and the witnesses, who are examined are the family members and relatives of the deceased only. He further submitted that it is a clear case of false complaint, otherwise also, before few days of committing suicide, the deceased and accused stayed at the house of the uncle of the deceased and mother of the deceased was frequently visiting the deceased as per her own statement. He further submitted that the learned trial Court has rightly acquitted the accused which calls for no interference. 8. This Court has heard learned advocates for the respective parties and perused the record and proceedings of the case. 9. He further submitted that the learned trial Court has rightly acquitted the accused which calls for no interference. 8. This Court has heard learned advocates for the respective parties and perused the record and proceedings of the case. 9. This Court has minutely gone through the impugned judgment and order rendered by learned trial Court as well as the evidence on record in the nature of paper book. Indisputably, the record and proceedings clearly indicates that complaint came to be lodged on 21.03.2007 by the brother of the deceased. As such, before that, no complaint was lodged against the accused for harassment or torture by the present complainant or deceased herself. Moreover, as per the evidence of the complainant, previously when deceased was beaten by the accused, one Kanubhai, who was sarpanch of Jargali village was called and that Kanubhai has advised the accused not to harass the deceased. However, such Kanubhai was not examined by the prosecution. At that time one Ghhaganbhai, who is brother in law of the complainant was also present. However, such Chhaganbhai was also not examined. It also appears from the record that evidence of the complainant is not supported by the evidence of the mother of the deceased. Therefore, the trial Court did not believe the evidence of the complainant. Therefore, learned trial Court has rightly acquitted the accused persons. 9.1 One Lumbhabhai Gangabhai, who is maternal uncle of the deceased and the complainant, was examined at Exh.35. As per the evidence of such Lumbhabhai, he has stated that deceased and her mother Bayaben came to his house and stayed for one night and then left for Kob village. He has further deposed that mother of the deceased has told him that accused has beaten the deceased. However, as per the evidence of the Bayaben, she has nowhere stated that she has told such Lumbhbhai that accused has beaten the deceased. Therefore, evidence of such witness cannot be believed. 9.2 Perusal of the evidence of another witness namely Nileshkumar Karshanbhai Sondarva at Exh.33 shows that he is residing near the house of the accused, where such incident has happened from many years. But he nowhere stated in his evidence that accused was torturing or beating the deceased. Therefore, his version also does not support the evidence of the complainant. 9.2 Perusal of the evidence of another witness namely Nileshkumar Karshanbhai Sondarva at Exh.33 shows that he is residing near the house of the accused, where such incident has happened from many years. But he nowhere stated in his evidence that accused was torturing or beating the deceased. Therefore, his version also does not support the evidence of the complainant. Therefore, no proximate cause is revealing from the entire record and proceedings indicating that soon before the incident, the accused had given any sort of instigation or any inducement to led her to commit suicide. In that way of the matter, the ingredients of Section 306 read with Section 117 of the Indian Penal Code are not being constituted and the learned trial Court has rightly acquitted the accused persons. 10. In above view of the matter, this Court is of the considered opinion that the trial Court is completely justified in acquitting the respondent accused from the charges leveled against him. This Court finds that the findings recorded by learned trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court, is therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by Court below and hence finds no reasons to interfere with the same. 11. In a decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the 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. 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 reappreciate 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.” 11.1 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled. 11.2 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 . 12. Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary. 13. In the result, the appeal fails and the same is dismissed accordingly. Bail bond, if any, stands cancelled. R & P be sent back to the concerned trial Court, forthwith.