Court:Gujarat High Court
Bench: JUSTICE K.S. Jhaveri & K.M. Thaker
State Of Gujrat Vs. Gajendrahai Amrutlal Parmar & Ors. On 04 July 2013
Law Point:
Indian Penal Code, 1860 — Sections 498A, 304B, 306 — Evidence Act, 1872 — Section 114 — Criminal Procedure Code, 1973 — Section 378 — Cruelty — Dowry Death — Abetment of Suicide — Appeal against acquittal — Benefit of doubt — It is not proved beyond reasonable doubt that deceased had been subjected to cruelty or harassment by her husband or any relatives of her husband in connection with demand of dowry — When main offence is not proved, there would be no question of abetment as envisaged by Section 114, Evidence Act — Court below was completely justified in passing impugned judgment and order — Impugned order acquitting accused upheld.
JUDGEMENT
1. By way of the present appeal under Section 378 of the Code of Criminal Procedure, the appellant-State has challenged judgment and order dated 30.5.1991 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 90 of 1991 whereby learned Trial Judge acquitted the respondents-original accused of the charges punishable under Sections 498A, 304B, 306 read with Section 114 of the Indian Penal Code.
2. The facts of the case, in a nutshell, are that original accused No. 1 is husband of deceased Rashmikaben. Original accused Nos. 2 to 4 are sisters of accused No. 1 and accused No. 5 is his mother. After marriage with accused No. 1 in the year 1987, deceased Rashmikaben was living in her matrimonial house at Ahmedabad. The accused persons used to harass and taunt the deceased for not bringing golden bangles and zanzeer which drove her to commit suicide by consuming acid on 2.12.1990. The deceased was admitted in the Civil Hospital on the very same day and she died after 22 days during the course of treatment.
3. The Trial Court framed charges against the accused persons. The accused persons pleaded not guilty to the charges and claimed to be tried. Therefore, the prosecution produced evidence. Further statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded. The Trial Court, after completion of trial, acquitted the accused of the charges levelled against them by the aforesaid judgment. Hence the present appeal.
4. To prove the case against the respondents-original accused, the prosecution has examined the following witnesses:
1. Dr. Manish Tulsidas Kapadia at Exh. 10
2. Devjibhai Bhanabhai Makwana at Exh. 17
3. Naranbhai Mohanbhai at Exh. 22
4. Jivanbhai Mohanbhai at Exh. 24
5. Laxmiben Devjibhai at Exh. 25
6. Manubhai Laxmanbhai Chavda at Exh. 26
7. Kantibhai Boghabhai at Exh. 27
8. Ganpatbhai Punjabhai Vaghela at Exh. 28
9. Dr. Bimal Amthagiri Goswami at Exh. 29
10. Harjibhai Bababhai Chavda at Exh. 31
11. Harishankar Jatashankar at Exh. 35
12. Harishchandra Ramsing Bhuva at Exh. 39
4.1. Learned APP Mr. Pujari for the appellant State has contended that in spite of dying declaration and ample evidence produced by the prosecution in support of its case, the Trial Court has committed error in acquitting the respondents-original accused of the charges levelled against them. He further contended that the Trial Court has committed error in not considering the evidence of Dr. Manish Tulsidas Kapadia at Exh. 10 which supports the case of prosecution. In that view of the matter, he submitted that the order of acquittal is required to be set aside and the accused are required to be convicted.
5. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the Trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr., reported in III (2006) CCR 76 (SC)=V (2006) SLT 252=III (2006) BC 433 (SC)=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:
“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 views are possible, the Appellate Court should not interfere with the finding of acquittal recorded by the Court below.”
5.1. Further, in the case of Chandrappa v. State of Karnataka, reported in II (2007) SLT 520=I (2007) CCR 465 (SC)=I (2007) DLT (Crl.) 732 (SC)=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, 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 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.”
5.2. 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 Trial Court.
5.3. Even in the case of State of Goa v. Sanjay Thakran & Anr., reported in II (2007) CCR 38 (SC)=III (2007) SLT 368=(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.”
5.4. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., reported in IV (2007) CCR 1 (SC)=VII (2007) SLT 809=AIR 2007 SCW 5533 and in Girja Prasad (Dead) by LRs v. State of MP, reported in AIR 2007 SCW 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
5.5. In the case of Luna Ram v. Bhupat Singh and Ors., reported in II (2009) CCR 170 (SC)=2009 (3) SCC 749, the Apex Court in paras 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 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.”
5.6. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State rep. by the Inspector of Police, Tamil Nadu, reported in VIII (2007) SLT 19=III (2007) DLT (Crl.) 1004 (SC)=III (2007) CCR 328 (SC)=AIR 2013 SC 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 levelled 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 appellants 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 v. Sohan Lal and Others, (2004) 5 SCC 573.”
5.7. It is also a settled legal position that in acquittal appeal, the Appellate Court is not required to rewrite 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 v. Hemareddy, reported in AIR 1981 SC 1417, wherein it is held as under:
“This Court has observed in Girija Nandini Devi v. Bigendra Nandini Choudhary, 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.”
5.8. 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.
6. We have heard learned Counsel for the parties and perused the judgment and order of the Trial Court. Considering the dying declaration, complaint and the evidence produced on record, the Trial Court has given its findings in paragraph Nos. 19, 20 and 21 of the judgment which are reproduced hereinbelow:
“19. In this case, the First Information Report dated 2.12.1990, whereupon the deceased Rashmikaben has put her signature, and the Dying Declaration Exh. 34 are very material documents. In Exh. 34, the deceased had stated that her mother-in-law, in the past, used to say about the work, but she was never harassed or trouble in any manner. It is the say of the deceased that on 1.12.1990, her husband had sought the divorce from her, but she had refused. However, she had felt it very much and consumed the acid. At that time, only Jyotikaben was there in another room, and that her husband had gone to Shahpur in the morning on that day. Ratilal had also gone to her father’s place at Vandasan. The deceased has stated in so many words that there was no harassment to her from the side of her mother-in-law, father-in-law, husband, brother-in-law and sister-in-law and that she was never beaten by her husband. She was brought to the hospital by her brother-in-law i.e. Ratilal. In the Dying Declaration Exh. 34. the deceased had stated that in the past, her mother-in-law used to harass her for food. She had been residing with her father and she had come with Ratilal to attend the marriage of her sister-in-law. It is her say that on 1.12.1990, her husband had asked for divorce and she had refused. She was not beaten up by her husband. Since last about 6 months, she had been residing at her father’s place, and that there was no quarrel and/or enmity with anyone. According to her, as she was asked divorce, she felt it very much and as such she consumed the acid. There is no other reason for doing so. She has stated that at present there is no harassment from mother-in-law, father-in-law, brother-in-law, sister-in-law, etc.
20. While summing up the evidence produced by the prosecution, it is very obvious from the statement of the P.W. 1 Dr. Manish T. Kapadia that the deceased fully conscious, when she was brought to the Civil Hospital. P.W. 10 H.B. Chavda, the Executive Magistrate has also stated on oath that Rashmikaben was conscious and he had personally satisfied himself by asking certain question to her. He had also certified accordingly as conscious in the Dying Declaration at Exh. 34. P.W. No. 11 Harishankar Jatashankar, Police Inspector has also stated on oath that Rashmikaben was fully conscious, when he recorded her complaint. However, the prosecution witnesses, who are very close in relation with the deceased instead of explaining Exs. 34 and 35 had adopted a very strange and false stand that the deceased was unconscious on 2.12.1990. The Doctor and the Executive Magistrate at least are very much respectable officials, and they have no reason to speak lie on oath. This apparently is done to come out of the Dying Declaration and F.I.R., wherein the deceased had stated that she was not harassed by any of the accused persons. The only reason for consuming the acid given by the deceased, is that the accused No. 1 had sought divorce, but she had refused, and she had felt it very much. It is an admitted fact that the couple was quite young and married since last 4 years. It is also admitted that the deceased used to come to her husband only in vacation or on certain social occasions. The talk of the divorce is an admitted fact, but according to the defence, the deceased herself had sought the same, as she wanted to marry someone else. It is also admitted that the deceased lastly came at her husband’s place on the occasion of marriage of her husband’s sister Bakula, and that too on persuasion and with specific condition that she would be sent back on completion of the ceremony of the marriage. The couple was very young. The natural course of events would be that they would be together as much as possible. However, contrary to this, we find reluctant wife to come to husband’s place and her stay at her father’s place, even after her studies were over, she having failed in T.Y.B.A. Examination. As she was not required to attend the college, she could stay with her husband, but somehow or the other, she and her family elected that she should be at her father’s place. All these facts make the defence version of the accused persons very probable. Otherwise also, when a husband finds that his wife does not want to stay with him, it would be most natural for him to seek divorce and such a request for divorce can never be considered as ‘cruelty’ or ‘harassment’ as contemplated by explanation to Section 498A of the I.P.C. The divorce does not appear to have been sought for coercing the wife or any person related to her to meet any unlawful demand of property or valuable security, nor it is aimed in furtherance of a wilful conduct of the accused No. 1 of such a nature as is likely to drive the wife to commit suicide. If a wife does not want to stay with her husband, mere speaking of divorce by him, in my opinion, is not likely to drive the wife to commit suicide or cause grave injustice or danger to life or limb or health of the wife. It is very clear from the Dying Delcaration and the FIR recorded on 2.12.1990 that as stated by the deceased herself, the accused persons never harassed her or committed any cruelty upon her. The deceased had stated that the accused Nos. 2 and 4 were not staying at Gaytrikunj and that even the accused No. 1 was not there, when she consumed the acid. Despite these all the facts, the prosecution witnesses have been improving upon their version with a manifest reason. The evidence of the prosecution is full of material contradictions, infirmity and defects running all throughout. It would be very risky to rely upon such evidence for conviction. The explanation under Section 313 of the Cr.P.C. of the accused persons and the version of their defence are quite probable. In criminal cases, it is often difficulty for the Courts of Law to arrive at the real truth. The judicial process can only operate on the firm foundation of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against the person accused of the very reprehensible crime. If the places of evidence on which the prosecution chooses to raise its cause or so brittle that they crumble easily, the structure built on such unsecured foundation also collapses. It is also well settled that there are two important factors in every criminal trial that weigh heavily in favour of the accused person, one is that the accused is entitled to the benefit of every reasonable doubt and that when the accused person offers a reasonable explanation of his conduct then even though he cannot prove his assertion, they should ordinarily be accepted unless the circumstances indicate that they are false. In the instant case the prosecution has failed to discharge its initial burden and the presumption if any available to prosecute as under Sections 113A and 113B of the Evidence Act have also been rebutted by the evidence on record.
21. Having thus regards to the facts and the evidence adduced in this case, it has been proved that the death of Rashmikaben has been caused under otherwise than normal circumstances and that such death had occurred within 7 years of her marriage. But, it has not been proved beyond reasonable doubt that Rashmikaben had been subjected to cruelty or harassment by her husband or any relatives of her husband and that such cruelty or harassment was for or in connection with the demand for dowry. It is also not proved beyond reasonable doubt that the husband or his relatives, by his wilful conduct created a situation which he knew would drive his wife to commit suicide. It is needless to say that when the main offence is not proved, there would be no question of abetment as envisaged by Section 114, IPC. I, therefore, answer points Nos. 1 to 4 in negative.”
7. In view of above, in our view, the Trial Court has rightly come to the conclusion that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt and the accused are required to be acquitted of the charges levelled against them.
8. Further learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order.
9. We are, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charges levelled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court. Hence, the appeal is devoid of any merit and is dismissed. Bail bond stands cancelled.
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