Gujarat High Court
State Of Gujarat vs Chamar Rameshbhai Maganbhai & on 21 January, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/341/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 341 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers YES
may be allowed to see the judgment?
2 To be referred to the Reporter or YES
not?
3 Whether their Lordships wish to see NO
the fair copy of the judgment?
4 Whether this case involves a
substantial question of law as to
NO
the interpretation of the
Constitution of India, 1950 or any
order made thereunder?
5 Whether it is to be circulated to NO
the civil judge?
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STATE OF GUJARAT....Appellant(s)
Versus
CHAMAR RAMESHBHAI MAGANBHAI & 1....Respondent(s)
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Appearance:
MS MONALI BHATT APP for the Appellant(s) No. 1
MR AS SUPEHIA for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 21/01/2014
ORAL JUDGMENT
1. The present Appeal is directed against the judgment and order delivered by the Additional Page 1 of 18 R/CR.A/341/2003 JUDGMENT Sessions Judge, Fast Track Court, Dhangadhra in Sessions Case No.60/1998 dated 30.12.2002 recording acquittal of the accused for the alleged offence under Sections 498(A) and 306 of the Indian Penal Code.
2. The facts of the case briefly summarized are as follows:
2.1 The deceased, Valiben committed suicide due to harassment caused to her by the accused persons. The complaint was initially registered as Accidental Death No.53/1995, however subsequently, complaint came to be registered as C.R.No.92/1995 with Dhangadhra Police Station, District : Surendranagar. 2.2 On the basis of the aforesaid complaint, the investigation was made, and at the end of trial, chargesheet came to be filed and it was tried by the Sessions Judge.
2.3 In order to bring home the charges leveled against the accused, the prosecution has examined the witnesses and also produced documentary evidence as referred to in the impugned judgment.
2.4 After recording the evidence of the
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R/CR.A/341/2003 JUDGMENT
prosecution witnesses was over, further statement of the accused under Section 313 of the Criminal Procedure Code were recorded. 2.4 After hearing the learned Additional Public Prosecutor as well as for the defence, the court below passed an order of acquittal on the basis of appreciation of material and evidence, which has led to the present appeal.
3. Heard learned APP Ms.Monali Bhatt for the appellantState and learned counsel, Shri Samir Gohil for learned counsel, Shri A.S. Supehia for the respondentsaccused.
4. Learned APP Ms.Bhatt referred to the impugned judgment and order and also depositions of witnesses including the deposition of Chandrakant Sahayata, PW 1, Exh.6, the Executive Magistrate, who recorded the dying declaration of the decease.
She pointedly referred to the depositions of this witness to emphasis that the witness has stated about the conditions of the deceased and he has stated that she was in fit state of mind to give the dying declaration and he has recorded the same. She has also referred to the dying Page 3 of 18 R/CR.A/341/2003 JUDGMENT declaration, Exh.8 and emphasized that the deceased had categorically stated about the harassment caused to her, due to which, she has committed suicide. Learned APP Ms.Bhatt has therefore submitted that this evidence is corroborated by the medical evidence. She referred to the deposition of Dr.Harshadray Bhuva, Exh.9 and submitted that he has stated that he had examined the patient and made endorsement about the condition of the patient and he stated that she was throughout conscious as endorsed in the dying declaration. Learned APP Ms.Bhatt submitted that if the medical evidence supports with regard to the genuineness of the dying declaration, same cannot be discarded and has to be relied upon. She submitted that there is no inconsistency in the evidence of the Executive Magistrate and the doctor as observed in the impugned judgment. Learned APP Ms.Bhatt has also submitted that the court below has erred in appreciation of this vital material and evidence and if the dying declaration is reliable and trustworthy then, the conviction could have been recorded without any corroboration. She has therefore submitted that Page 4 of 18 R/CR.A/341/2003 JUDGMENT the observation made in the impugned judgment and order and the appreciation of evidence is erroneous. She has also stated that the observations made raising doubt about the dying declaration referring to the condition of the deceasedpatient that the dying declaration was recorded at the instance of the relatives, is also erroneous. She pointedly referred to the evidence and submitted that as it transpires, the father and other relatives were informed by 05:30 and they had reached the hospital thereafter and, thereafter, when the dying declaration has recorded between 06:00 p.m. and 06:15 p.m., they would not have been there and the relatives of the accused could be present. She therefore submitted that the court below has failed to appreciate this aspect while making observations. Learned APP therefore submitted that if the dying declaration and the medical evidence is believed, theory of accidental death as per the initial entry has been ruled out and it was not an accidental death. She emphasized that looking to the nature of injuries to the extent of 90% burn injuries, it cannot be said that it was an accident. Therefore it was Page 5 of 18 R/CR.A/341/2003 JUDGMENT submitted that once it is accepted that it was a suicidal death, cause of the death as reflected in the dying declaration clearly suggests about the involvement of the accused and the impugned judgment and order recording acquittal is not just and proper. In support of her submission, she has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Shanmugal @ Kulandaively Vs. State of Tamil Nadu, reported in AIR 2002 SCW 4653 and emphasized the observation in para no.8 to emphasis that if the dying declaration is reliable, same cannot be discarded.
5. Per contra, learned advocate, Shri Samir Gohil for the respondentsaccused, however, referred to the deposition and submitted that the complaint, father and mother have turned hostile and have not supported the prosecution case. He submitted that there is no evidence with regard to the past quarrel or the history as it has not been brought to the record by the prosecution. He pointedly referred to the deposition of Shankarbhai Ratandas, PW 6, Exh.16 and submitted that he was the person, who had reached the place to rescue the deceasedvictim and witness is said to have Page 6 of 18 R/CR.A/341/2003 JUDGMENT been stated that while preparing tea, she got burnt and he has not been declared hostile. Similarly, he has referred to the depositions of other witness, Malabhai Lagharabhai (maternal uncle), PW 4, Exh.14 and submitted that he has also turned hostile and not supported the prosecution case. Learned advocate, Shri Gohil has therefore submitted that the offence under Section 498(A) of the IP Code would not be attracted as the marriage span is more than seven years and, therefore, the presumption would not be attracted. He submitted that the offence under Section 306 of the IP Code would not be attracted as the ingredient like instigation has not been fulfilled. He submitted that other witnesses have not supported the prosecution case and there is no evidence with regard to any such quarrel before the incident or any instigation by any one prior to commission of suicide. In support of his submission, he has referred to and relied upon the judgment in case of State of Gujarat Vs. Kalavatiben Liladhar, reported 2007 (2) GLR 1272 and the observations made in this judgment to support his submission that there is no direct Page 7 of 18 R/CR.A/341/2003 JUDGMENT evidence or other circumstantial evidence to establish about any instigation to commit suicide. He has also submitted that therefore considering the fact that it is an acquittal appeal where the court below has recorded the acquittal and the findings cannot be termed as perverse, the present appeal may not be entertained.
6. In view of these rival submissions, it is required to be considered whether the present appeal can be entertained or not.
7. From bare perusal of material and evidence and the rival submissions, it is required to be focused on the aspect of cruelty or harassment, which has led to commit suicide by the deceased. Further, the dying declaration, Exh.8, which has been much emphasized and referred to by learned APP is required to be considered. As could be seen from the evidence, initially it was registered as an accidental death and PW 6, who had gone to rescue the deceasedvictim has stated that the deceased is said to have stated to him that while preparing tea, she got burnt. Therefore on one hand, the deceased is said to have stated to this witness about the accidental death where in her dying Page 8 of 18 R/CR.A/341/2003 JUDGMENT declaration, Exh.8, she has stated about the suicide due to harassment and illtreatment. Further considering the deposition of Chandrakant Sahayata, Executive Magistrate, Exh.6 and Dr.Bhuva, Exh.9, the dying declaration is reliable and it could not be discarded as submitted by learned APP. However, the evidence of Dr.Bhuva is with regard to the physical condition of the deceasedvictim that she was able to give statement and it was recorded in his presence. At the same time, span of marriage is more than seven years and, therefore, the presumption for the alleged offences under Section 498(A) of the IP Code would not be attracted. Again word 'cruelty' has not been defined but has been considered by the Hon'ble Apex Court in various judicial pronouncements as to what would constitute the instigation leading to such extreme steps. Though the Legislature has by suitable amendment in the provisions of the Code of Criminal Procedure as well as in the Evidence Act make such penal laws more stringent for dealing with such offence against the married woman. Explanation to Section 498(A) of the IP Code refers to the cruelty and Page 9 of 18 R/CR.A/341/2003 JUDGMENT what would constitute the cruelty specifically providing such a willful conduct, which has driven a woman to commit suicide. Similarly, the court below while considering the offence under Section 306 of the IP Code has made discussion with regard to necessary ingredients. For the offence under Section 306 of the IP Code, necessary ingredients like the intentionally instigation or the abetment to the deceased to commit suicide is necessary. In other words, for such offence, it has to be established that the harassment or the torture was such, which has compelled a person to commit suicide. Similarly, the harassment or the instigation has to be of such a nature that it is unbearable and, therefore, by such willful conduct, the accused is said to have instigated the deceased to commit suicide and thereby aided in commission of suicide. Thus there has to be evidence suggesting the harassment and also instigation of such a nature which has prompted the deceased to commit suicide or to take such an extreme steps of suicide. There is no evidence with regard to such harassment as discussed above. Admittedly, there is no evidence with regard to Page 10 of 18 R/CR.A/341/2003 JUDGMENT any demand for dowry etc. Therefore, the harassment which has been referred to by the deceasedvictim in the dying declaration does not appear to be persistent and/or unbearable which could have lead her to commit suicide. It is also well settled that for the offence under Section 306 read with Section 107 of the IP Code, there has to be an evidence that there was an instigation or harassment by the accused, which has compelled a person to commit suicide. In other words, the instigation or abatement to commit suicide can be gathered from the evidence on record. Again the ingredients for the offence under Section 306 of the IP Code are required to be considered read with Section 107 of the IP Code for the abatement. There has to be some evidence suggesting instigation or the torture and it has to be shown that it was of such a nature, which has prompted, she was to take such extreme step of suicide. In the facts of the case, there is no evidence on record and time leg with regard to any such quarrel or extreme step of suicide is also required to be considered.
8. Therefore in other words, the instigation must be Page 11 of 18 R/CR.A/341/2003 JUDGMENT such a nature, which is direct result of the quarrel or such instigation leading to suicide. Though learned APP Ms.Bhatt has much emphasized with regard to the dying declaration and the suicide, offence under Section 306 of the IP Code cannot be said to have been made out. Similarly, Section 498(A) of the IP Code would also not be attracted. Assuming that it is a case of suicide and the dying declaration is trustworthy and reliable, still it only refers to the suicide ruling out the theory of accidental death. However, it has to be seen whether the ingredients for the offences under Sections 498(A) and 306 of the IP Code are fulfilled. Moreover for the offence under Section 306 of the IP Code regarding the abetment or instigation to commit suicide would require a closer scrutiny of the evidence. As discussed above, the offence under Section 306 of the IP Code cannot be said to be made out. Similarly, the offence under Section 498(A) of the IP Code, which requires harassment amounting to cruelty as stated in the explanation, has to be established. Therefore there has to be an evidence suggesting nexus between the conduct or the Page 12 of 18 R/CR.A/341/2003 JUDGMENT harassment which has ultimately led a woman to take extreme steps of suicide to attract the aforesaid offences. Therefore, there has to be a causal connection between the instigation and the resultant effect of such instigation or abetment culminating into suicide. As discussed above, there is no evidence with regard to any such quarrel or instigation immediately before the incident or in a close proximity. In fact the prosecution witnesses including the father of the victim have turned hostile and have not supported the prosecution case. Shankarbhai, PW 6, who is said to be present to rescue has also not supported the case and has on the contrary, suggested theory of accident.
9. It is also required to be mentioned that while appreciating the material and evidence with regard to the harassment for the illtreatment, various factors like sensitivity of the individual victim, social background, environment, education and other surrounding circumstances are also required to be considered. The work 'mental cruelty' also is a relative term which varies from person to person depending upon the sensitivity of the Page 13 of 18 R/CR.A/341/2003 JUDGMENT individual and degree or impact of the harassment and the degree of the patience and endurance to withstand such mental torture or harassment. Thus it has to be considered with regard to each case depending upon the material and evidence on record.
10. It is in this background, while considering the present appeal against the acquittal, the court is to consider well accepted broad guidelines laid down by the Hon'ble Apex Court referring to the scope of Section 378 of the Criminal Procedure Code. The Hon'ble Apex Court in a judgment in case of Ram Kumar Vs. State of Haryana, reported in AIR 1995 SC 280 has observed as under : "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Secs. 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the Page 14 of 18 R/CR.A/341/2003 JUDGMENT slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."
11. Similarly, it is well accepted that in an acquittal appeal, if other view is possible then, the high court cannot substitute its own findings reversing the acquittal. The Hon'ble Apex Court in a judgment in case of Syed Peda Aowalia Vs. Public Prosecutor, High Court of A. P., Hyderabad, reported in AIR 2008 SC 2573 has made observations expressing word of caution that it is only when the court below has totally misdirected or whether there are compelling reasons, the acquittal order be called for interference.
12. Similarly, a useful reference can also be made to the observation and discussion made by the Hon'ble Apex Court in a judgment in case of Chandrappa & Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415 laying down the broad guidelines with Page 15 of 18 R/CR.A/341/2003 JUDGMENT regard to the scope of Section 378 of the Code of Criminal Procedure, 1973. The Hon'ble Apex Court has observed and quoted Lord Russel, "There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result."
13. The Hon'ble Apex Court referring to the scope of Section 378 of the Code of Criminal Procedure, 1973 has also made observations that plain reading of Section 378 of the Code of Criminal Procedure, 1973 makes it clear that there are no restrictions imposed by the Legislature on the powers of the appellate Court. At the same time, the Hon'ble Apex Court has referred to the judgments and development of law including the observations made by the Constitution Bench in a judgment in case of Page 16 of 18 R/CR.A/341/2003 JUDGMENT M.G. Agarwal v. State of Maharashtra, reported in AIR 1963 SC 200 with regard to the approach and also the subsequent judgment referring to the aspect of substantial and compelling reasons and has also referred to the factors, which are required to be considered by the appellate court. Thus it is only when the court below has totally misdirected or whether there are compelling reasons, in the interest of justice or rather to prevent the miscarriage of justice, the court may on appreciation of evidence or review thereof reverse the finding and conclusion arrived at by the court below.
14. Further a useful reference can be made to the judgment of the Hon'ble Apex Court in case of S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka, reported in (2013) 7 SCC 219. It is required to be mentioned that the broad principle is that the presumption of innocence is strengthen if the accused is acquitted by the trial court. Therefore considering these aspects, the interference with the acquittal order cannot be made. It is also well accepted that where two view are reasonably possible, acquittal should not be Page 17 of 18 R/CR.A/341/2003 JUDGMENT disturbed unless the judgment of the court below is perverse, illegal, erroneous and contrary to the material and evidence.
15. Therefore in light of the aforesaid discussion, it cannot be said that the impugned judgment and order is perverse and the appreciation of material and evidence calls for any interference as this court is in broad agreement with the conclusions and findings arrived at by the court below. The present appeal therefore deserves to be dismissed and accordingly stands dismissed.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 18 of 18