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2024 DIGILAW 1186 (GUJ)

State of Gujarat v. Kishor Roopabhai Patel

2024-05-16

VAIBHAVI D.NANAVATI

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JUDGMENT : VAIBHAVI D. NANAVATI, J. 1. It transpires from the record that the respondent No. 2 (mother-in-law of the deceased) expired during the pendency of the Appeal. Copy of the Death Certificate of the respondent No. 2-Shantaben has been produced before this Court. The date of death is mentioned as 16.05.2019. The same is ordered to be taken on record. Hence, the Appeal stands abated qua the respondent No. 2. 2. By way of this Appeal, the Appellant-State has felt aggrieved by the judgment and order of acquittal dated 17.07.2007 passed by the learned Presiding Officer, Fast Track Court No. 5, Morbi in Sessions Case No. 65 of 1993 whereby the respondents were acquitted for the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code (IPC). 3. The case of the prosecution is as under: 3.1. The complainant-Mavjibhai Devjibhai Patel (father of the deceased-Kokilaben) in his complaint against the accused persons registered as I-C.R. No. 100 of 1992 with Morbi Police Station, stated that about 1.5 years prior to the date of incident, his daughter was married with the respondent No. 1 (husband) and thereafter, started living at her matrimonial home. It is alleged that the accused used to mentally and physically harass the deceased and were also pressurizing her to bring dowry and cash from her parental home. It is further alleged that the accused persons told the deceased to bring Rs. 5,000/- from her parental home but the same could not be managed and therefore, the mental and physical harassment for cash continued. Hence, on 06.09.1992 at about 6.30 hours, the deceased poured kerosene on her body and committed suicide. 3.2. On the basis of the complaint filed, the investigation commenced. Charges were led against all the original accused under Sections 498(A), 306 and 114 of the IPC in the Court of the learned Judicial Magistrate First Class. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. 3.3. 3.2. On the basis of the complaint filed, the investigation commenced. Charges were led against all the original accused under Sections 498(A), 306 and 114 of the IPC in the Court of the learned Judicial Magistrate First Class. Since it was a Sessions triable case, the learned Judicial Magistrate First Class committed the case to the Court of Sessions. 3.3. At the time of the trial, the prosecution examined the following witnesses: Particulars Exhibit Mavjibhai Devjibhai Patel (Complainant) 19 Karshanbhai Govindbhai Patel 53 Raghavjibhai Mavjibhai Patel 55 Nathubhai Devabhai Patel 57 The prosecution also relied upon various documentary evidences, some of them are: Particulars Exhibit Original Complaint 20 Inquest Panchnama 48 Panchanama of the situation of the house compound 49 Arrest Panchnama 50 Post Mortem Report 51 Original Certificate of the cause of death 63 Yadi written by the PSO 65 FIR Report of Morbi Taluka Police Station AD No. 15/1992 67 Analysis Report of the muddamal 70 3.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the respondents pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present Appeal has been filed by the State, as aforesaid. 4. Learned Additional Public Prosecutor Mr. Hardik Soni for the appellant - State has submitted that the competent Court erred in acquitting the accused mainly on the ground that the above offences are not attributed to the accused. It is further submitted that the deceased was subjected to cruelty and was also harassed for dowry and cash. It is also submitted that the complainant - the father of the deceased was examined at Exhibit 19 and then the complaint was lodged on the narration by the deceased, with regard to the death of the deceased on account of harassment which led her to commit suicide. It is further submitted that the accused No. 2-mother-in- law also harassed the deceased. The accused No. 1-husband also harassed the deceased for getting Rs. 5,000/- from her parental home, however, the same could not be managed because of the financial crunch. It is further submitted that the accused No. 2-mother-in- law also harassed the deceased. The accused No. 1-husband also harassed the deceased for getting Rs. 5,000/- from her parental home, however, the same could not be managed because of the financial crunch. Hence, the deceased at 6.30 hours on the said date of incident poured kerosene on her body and committed suicide. It is further submitted that relying upon the testimony of the complainant, the learned Judge could not have acquitted the respondents herein. 5. It is further submitted that PW-3 Raghavji Mavjibhai Patel - the brother of the deceased was examined at Exhibit 55. PW-4 Nathubhai Devabhai Patel - the Uncle of the deceased was examined at Exhibit 57. The evidence of the said witnesses wholly support the case of the prosecution. It is further submitted that the said witnesses reveal that the deceased was subjected to harassment by the accused. PW-3 Raghavji Mavjibhai Patel - the brother of the deceased had lodged a private complaint alleging an offence punishable under Section 302 of the Indian Penal Code against the accused persons. It is also submitted that the death is not accidental but committed with the instigation of the accused. It is further submitted that the cruelty and harassment are evident from the record and the competent Court erred in passing the order of acquittal qua the accused. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the respondents should be upturned by this Court. 6. Per contra, learned Advocate for the respondents-accused Mr. Ashish M. Dagli submitted that the judgment and award passed by the competent Court acquitting the respondents is just and proper. It is further submitted that the prosecution has failed to examine the testimony of the deceased's mother, who informed the complainant, i.e. father of the deceased, with respect to the incident which had occurred and thereafter, the First Information Report came to be filed by the complainant. It is further submitted that the Investigating Officer has also not been examined the testimony of the complainant and the case is based solely on the evidence of PW-4 the father's brother (i.e. the uncle of the deceased and a retired PSI), who has been examined at Exhibit 57. It is further submitted that the Investigating Officer has also not been examined the testimony of the complainant and the case is based solely on the evidence of PW-4 the father's brother (i.e. the uncle of the deceased and a retired PSI), who has been examined at Exhibit 57. It is also submitted that in absence of evidence of independent witnesses and in absence of any documentary evidence with respect to the harassment allegations levelled by the deceased's father, nothing has come on record to bring the accused under the ambit of Sections 498A, 306 and 114 of the Indian Penal Code. It is also submitted that there are two versions available, one that of the father of the deceased having filed complaint under Sections 498A and 306 of the Indian Penal Code and that of the brother of the deceased having filed complaint under Section 302 of the Indian Penal Code and therefore, this Court should not interfere in the well reasoned judgment and order of the learned Additional Sessions Judge. 7. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala and Another, (2006) 6 SCC 39 , the Apex Court has narrated about the powers of the 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.” 8. Further, in the case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 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. 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. (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.” 9. 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 competent Court. 10. Even in the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 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. 10. Even in the case of State of Goa vs. Sanjay Thakran and Another, (2007) 3 SCC 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.” 11. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh vs. Ram Veer Singh and Others, 2007 AIR (SCW) 5553 and Girja Prasad (Dead) by LRs. vs. State of M.P. 2007 AIR (SCW) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 12. In the case of Luna Ram vs. Bhupat Singh and Others, (2009) SCC 749, the Apex Court in Para 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 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 post-mortem 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.” 13. Even in a decision of the Apex Court in the case of Mookkiah and Another vs. State Rep. by the Inspector of Police, Tamil Nadu, AIR 2013 SCC 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 appellant 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 ].” 14. 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 reasonings, 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, AIR 1981 SC 1417 , wherein it is held as under: “This Court has observed in Girija Nandini Devi vs. Bigendra Nandini Choudhary, (1967) 1 SCR 93 : AIR 1967 SC 1124 that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.” 15. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Others vs. State of Karnataka, JT 2013 (7) SC 66. 16. At this stage, this Court would also like to refer to the decision of the Hon’ble Apex Court in the case of Mariano Anto Bruno vs. Inspector of Police, AIR 2022 SC 4994 . 17. This Court also relies on the decision of the Hon’ble Apex Court in the case of Mallappa and Others vs. State of Karnataka, 2024 AIR Online SC 80 wherein it was held in Paragraph 36 as under: “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which comes into play while deciding an Appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which comes into play while deciding an Appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary. (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge. (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed. (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal. (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts. (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.” 18. I have heard learned Advocates for the parties and perused the records of the case. While going through the well reasoned judgment and order of the learned Sessions Judge, the learned Judge held that the prosecution examined only four witnesses, who are interested witnesses. The incident occurred at a place where the prosecution could have taken into consideration the evidence and the deposition of independent witnesses. Nothing has come on record with regard to the cruelty meted out to the deceased- Kokilaben for the Court to bring the case under the ambit of Section 498A of IPC. Further, not a single incident has been narrated in the First Information Report which states that cruelty was meted out to the deceased, except the narration in the complaint that the deceased-Kokilaben was in need of Rs. 5,000/- which is also narrated by the mother of the deceased. The learned Judge has discussed in detail with respect to the aforesaid in Paragraphs 23 and 24 of the impugned judgment and award. Therefore, in absence of any evidence, this Court is not inclined to disbelieve the findings arrived at by the learned Sessions Court. 5,000/- which is also narrated by the mother of the deceased. The learned Judge has discussed in detail with respect to the aforesaid in Paragraphs 23 and 24 of the impugned judgment and award. Therefore, in absence of any evidence, this Court is not inclined to disbelieve the findings arrived at by the learned Sessions Court. Apart from that, the learned Additional Public Prosecutor for the appellant - State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record. In that view of the matter, I am in complete agreement with the reasons recorded by the learned trial court and in my view, the impugned judgment is just, legal and proper and requires no interference by this Court. 19. It is made clear that the present order is being passed in the present Appeal and the same shall not affect any pending proceedings, if any, qua the respondents herein. 20. The Appeal is devoid of merits and is dismissed accordingly. The judgment and order of acquittal dated 17.07.2007 passed by the learned Presiding Officer, Fast Track Court No. 5, Morbi in Sessions Case No. 65 of 1993 is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.