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2024 DIGILAW 2085 (GUJ)

State Of Gujarat v. Kathi Bababhai Nagbhai

2024-11-27

BIREN VAISHNAV, MAULIK J.SHELAT

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JUDGMENT : (Biren Vaishnav, J.) 1 This appeal has been filed by the Appellant-State under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) against the Judgment and Order of acquittal passed by the Ld. Sessions Judge, Amreli (hereinafter referred to as “the Trial Court”) in Sessions Case No. 30 of 1990 on 30.12.1999, whereby, the Ld. Trial Court has acquitted the Respondents- Accused for the offences punishable under Sections 498-A, 304-B, 306, 114 of Indian Penal Code (“IPC” for short). The respondents are hereinafter referred to as the accused as they stood in the rank and file in the original case for the sake of convenience/clarity and brevity. 2 The brief case of the first informant as alleged in the First Information Report which had ultimately resulted in the present appeal is that on 22.10.1989 at around 8:15 hours, because of the harassment and demands made by the accused, the deceased had jumped in the Well situated nearby in the village. The marriage span was merely that of 8 months and therefore, also section 304-B has been invoked at the stage of framing of charge. The prosecution case is that the accused had demanded certain articles in nature of dowry, more particularly after the death of the mother of the deceased and therefore, because of the harassment caused by the respondents, she had committed suicide by jumping in the Well situated nearby. 2.1 In pursuance of the above allegation of the first informant, First Information Report was lodged with the Chalala Police Station, for the offences punishable under Sections 304-B, 306, 498-A and 114 of IPC of Indian Penal Code, 1860, vide I-CR No.123 of 1989. Investigating Agency during the course of investigation recorded statements of the witnesses, drawn various panchnamas including panchnama of scene of offence, collected medical papers, etc. for the purpose of proving of the offence. 3. Upon committal of the case to the Ld. Sessions Judge, Amreli, framed charges vide Exh.2 against the Respondents - Accused for the aforesaid offences. The Respondents-Accused pleaded not guilty and were tried. The prosecution has examined 10 prosecution witnesses and also produced various documentary evidence before the Ld. Trial Court. The details of the evidence led by the prosecution are reproduced in the tabular form hereunder: Relevant Oral Evidences PW. No. Exh No. Pg.No Name of the Witness-Nature Discussion Para-Judgment Pg.no. The Respondents-Accused pleaded not guilty and were tried. The prosecution has examined 10 prosecution witnesses and also produced various documentary evidence before the Ld. Trial Court. The details of the evidence led by the prosecution are reproduced in the tabular form hereunder: Relevant Oral Evidences PW. No. Exh No. Pg.No Name of the Witness-Nature Discussion Para-Judgment Pg.no. 1 7 49 Dr.J.A. Vithlani-PM Discusses about injury and in cross-examination states that could have happened because of bucket or wooden stand of machine Para-16, pg.116 2 10 56 Bachubhai Nana Vala- Panch of House- Hostile Para-17, pg.117 3 13 65 Gabharu Hatiyabhai- Panch of Scene of offence-Well, had gone to place even prior panchnama when incident occurred as resides in same village. Para-13, pg.118 4 17 70 Jorubhai Jeevabhai-Brother-Complainant-accepts they were poorer to accused’s family and no demand at time of marriage also that first version he got to know was of accident and he believes it was not accident therefore, complaint. Para-11, pg.107 Para-12,13 pg.108,110, 114 5 20 78 Januben Jagubhaisister in law (Jagubhai’s wife) 6 22 84 Jagubhai-Brother Para-12, pg. 113 Para-13, pg.113 7 24 88 Amrabhai Apabhai brother in law of deceased (sister’s husband) accepts all he know is hearsay. Para-13, pg.115 8 25 92 Chandraben-Sister of deceased Para-14, pg.116 9 27 97 Raghurajsinh Dilipsinh Zala Para-19, pg.119 10 28 99 Mr.MJ Pancholi, PSI Chalala Para-20, pg.119 Exh. No. Name of Witness Pg.No. 2 Charge 35 8 P.M. Note 52 18 Complaint 75 11 Panchnama Residence 58 12 Inquest Panchnama 60 14 Panchnama Scene of offence 67 4 Thus, prosecution had examined the complainant, witnesses, medical officer and the police witness, which according to the prosecution have bring home the charge in support of their case. The prosecution has also relied upon documentary evidences in support of the oral evidence led by them before the Trial Court. At the end of the evidence, necessary pursis was presented before the Ld. Trial Court declaring closer of evidence. Ld. Trial Court has thereafter proceeded to record the further statement of the accused under Section 313 of the Code of Criminal Procedure. With such evidence being noticed, Ld. Trial Court after evaluating the same arrived at a conclusion that prosecution has failed to prove the charge against the Respondents - Accused and has thereby recorded acquittal. Ld. Trial Court has thereafter proceeded to record the further statement of the accused under Section 313 of the Code of Criminal Procedure. With such evidence being noticed, Ld. Trial Court after evaluating the same arrived at a conclusion that prosecution has failed to prove the charge against the Respondents - Accused and has thereby recorded acquittal. In view of the aforesaid facts and circumstances, this Acquittal Appeal has been preferred by the State. 5 Mr.Utkarsh Sharma, learned APP for the State, made the following submissions: 5.1 It is submitted by Mr.Sharma, learned APP, that findings of acquittal are contrary to law in evidence on record and the findings recorded are erroneous and based on irrelevant material. 5.2 It is further contended that Ld. Trial Court has committed an error in acquitting the respondents and not properly appreciating the evidence produced on record though the prosecution had proved case against the accused. It is further contended by Mr.Sharma, learned APP that the learned Trial Court has given weightage to the minor omission and contradiction in the witnesses though there was no any material omission and contradiction in the evidence of the witnesses. The Ld. Trial Court has relied on minor contradiction and discarded the evidence of the witnesses, thus, the reasons assigned by the learned Trial Court while acquitting the accused in the submission of Mr.Sharma, learned APP, are unjust, improper, perverse and unwarranted to the facts of the prosecution case. 5.3 It is further submitted that the prosecution has established the guilt of all the accused and the learned Trial Court has committed an error both on law and facts. 6 Thus, according to Mr.Sharma, learned APP, the learned Trial Court has wrongly recorded the order of acquittal, which deserves to be quashed and appropriate sentences for the offences be passed against all the accused. On the aforesaid contentions, it is submitted that present appeal be allowed has prayed for. 7 Though there is a leave note of Mr.Madansingh Borad, learned advocate for the respondents, we have taken up the appeal for final hearing today. 8 It is brought on record that the accused No.2 has died during the pendency of the appeal and death certificate has been placed on record. Accordingly, the appeal, qua respondent No.2, stands abated. 9 What is evident is that the prosecution essentially to bring home the charges has examined Dr.J.A.Vithalani at Exh.7. 8 It is brought on record that the accused No.2 has died during the pendency of the appeal and death certificate has been placed on record. Accordingly, the appeal, qua respondent No.2, stands abated. 9 What is evident is that the prosecution essentially to bring home the charges has examined Dr.J.A.Vithalani at Exh.7. He is the Medical Officer who carried out the Postmortem. Perusal of his testimony indicates that in the cross-examination, the Medical Officer has stated that it is possible that the injury sustained as a result of the deceased jumping into the Well can also be caused by the bucket and / or the hard surface of the well. Looking at the charge framed against the accused, Secs. 498(A), 304(B) and 306 r/w. 114 of the Indian Penal Code have been invoked. 9.1 The complainant Jorubhai Jeevanbhai, the brother of the deceased Madhuben has been examined at Exh.17. The evidence of this witness indicates that he is the brother of the deceased. He in his examination states that the accused No.1 is the husband, the accused No.2 is the mother-in-law and the accused No.3 is the daughter-inlaw of the accused. He has submitted that the matrimonial alliance of his sister with the accused No.1 was entered into about eight months prior to the date of death. That the family to which they belonged to were of poor means. From the examination of this witness, it has also come on record that it was an admitted position that the matrimonial alliance was entered into as the accused had preferred to marry Madhuben, the deceased, and therefore, the Sessions Court reasonably believed that the motive of the alleged suicide committed by the deceased could not be for the demand for dowry. Further, reading of the evidence of Jorubha, the brother, indicates that after her mother’s death, Madhuben, the deceased would frequently visit the matrimonial home. What comes out from his testimony is that Madhuben, deceased, visited the matrimonial home on three occasions and at no stage did she complained about being harassed on the ground of demands for dowry. 9.2 Further examination of this witness would indicate that there was no complaint made by Madhuben, that her in-laws were harassing her and also that they on such demand being made by the in-laws had gone to the accused to object to the fact that their sister was being harassed. 9.2 Further examination of this witness would indicate that there was no complaint made by Madhuben, that her in-laws were harassing her and also that they on such demand being made by the in-laws had gone to the accused to object to the fact that their sister was being harassed. Reading of the evidence of this witness would further indicate that in the community that they belonged to, it was a custom that on the marriage certain gifts and items were given to the family where the daughter would have her marriage. It was a custom out of which several gifts as set out in the deposition of this witness were given to the family of the accused. When this evidence is read in light of the evidence of Amrabhai Apabhai, brother-in-law of the deceased is read, it is clearly made out that it is not in dispute that it was a normal custom in the family to exchange gifts as the accused and the family belonged to the Kathi community, and therefore, dowry was not the issue or the motive on which the deceased could have been said to have committed suicide. 9.3 Januben is bhabhi of the deceased examined at Exh.78 and she more or less confirms to the testimony of Jorubhai. What is also found on examination of the evidence of witness Jagubhai who is the brother of the deceased Madhuben is that when they went to the hospital on hearing of the news of the death of Madhuben and when they questioned the villagers as to what had happened, the evidence that has come on record indicates that they were informed that Madhuben, the deceased had died due to a fall in the Well for fetching water. In his cross-examination also he admits that the death has occurred as a result of accident. The Panchwitness have turned hostile. In his cross-examination also he admits that the death has occurred as a result of accident. The Panchwitness have turned hostile. 9.4 Considering the evidence of Chandraben, the sister of the deceased, who was examined at Exh.25, this witness together with the assessment of evidence of the earlier ones, the Trial Court fould that once it was brought on record on the basis of the testimony of the complainant that he was informed that the death of the sister had occurred as a result of an accident which was even confirmed on the testimony of her second brother Jagubhai, we find that there is no reason to take a view different from the one taken by the Trial Court. 10 As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 11 Scope of appeal against acquittal is well laid down in case of Chandrappa and ors. vs. State of Karnataka reported in (2007) 4 SCC 415 , it was observed: “42. From the above decisions, in our considered view, the following general principles regarding powers of 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. Such phraseologies are more in the nature of ’flourishes of language’ to emphasize 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 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.” 12. Even recently, the Apex Court in the case of Babu Sahebagouda Rudragoudar and Others vs. State of Karnataka [ (2024) 8 SCC 149 ] has held as under: “39. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: - "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] "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 Criminal Procedure Code, 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. (2) The Criminal Procedure Code, 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. 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." 40. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: - "8.1.The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible." 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:- 41.1 That the judgment of acquittal suffers from patent perversity; 41.2 That the same is based on a misreading/omission to consider material evidence on record; 41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 13. Considering these set of evidences on record and in light of the latest decision of the Apex Court as reproduced hereinabove, which deals with the law on acquittal, we are of the opinion that no error has been committed by the learned learned Sessions Judge, Amreli in Sessions Case No. 30 of 1990 on 30.12.1999, whereby, the learned Judge has acquitted the respondents- accused for the offences punishable under Sections 498-A, 304-B, 306, 114 of Indian Penal Code. 14. The appeal is accordingly dismissed. Resultantly, the impugned judgment and order of the trial court is hereby confirmed. Bail bond, if any, shall stand cancelled. Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.