Gujarat High Court
State Of Gujarat vs Patel Amrutlal Keshavlal & ... on 26 February, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/853/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 853 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
PATEL AMRUTLAL KESHAVLAL & 2....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS MONALI H. BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2
MR TEJAS P SATTA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 , 3
================================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 26/02/2015
ORAL JUDGMENT
1. Heard learned Additional Public Page 1 of 18 R/CR.A/853/2004 JUDGMENT Prosecutor Ms. Monali H. Bhatt for the appellant - State and learned Advocate for the respondent Mr. Tejas P. Satta.
2. By way of this Appeal, the Appellant
- State has felt aggrieved by the judgment and order of acquittal dated 21.01.2004 of the learned Additional Sessions Judge, Fast Track Court No.5, Mahesana in Sessions Case No.20/2002 whereby the respondents herein were acquitted of the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code and under Sections 3 and 7 of the Prevention of Dowry Act.
3. The case in brief and the incident which occurred on 26.08.2001 are as under :-
The deceased Dimple had married with one
- Kirankumar. After marriage, she started residing with her in-laws. On the festival of Rakshabandhan, Dimple had come to her parental home that her husband intended to go to America.Page 2 of 18
R/CR.A/853/2004 JUDGMENT However, as Dimple had not agreed to the same, her father-in-law, her mother-in- law and sister-in-law had started giving her foul abuses, insulted her and also told her to get an amount of Rs.50,000/= from her father's house. It is alleged that all the accused had taunted her about not getting anything from her parental home and are also alleged to be giving mental torture. It is also alleged that the registered marriage with Dimple was carried out to avoid expenses.
The next day, a telephone call was received that Dimple was serious. The parents, uncle and aunty on reaching the house, saw that Dimple was already dead and lying on the cot. It is alleged that the in-laws were asked as to how Dimple had died, but they did not respond. The neighbours disclosed that the husband had gone to a temple. The in-laws had also gone out and when they returned at 2.00 pm in the noon, Dimple had complained about stomach pain and Page 3 of 18 R/CR.A/853/2004 JUDGMENT vomitting. Dimple's brother-in-law had asked her to go to the Dispensary; she had refused. When at 5.00 pm he had tried to wake up Dimple, she did not get up and was taken thereafter to the Hospital, where the doctor had declared her dead.
It is the case of the prosecution that Dimple had committed suicide due to mental and physical torture meted out by the accused and also for the demand of Rs.50,000/= made by them from Dimple.
The chargesheet was laid before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them. On completion of the evidence of prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure were recorded.
4. The prosecution had examined the Page 4 of 18 R/CR.A/853/2004 JUDGMENT following witnesses and had relied on several oral and documentary evidences, some of them are as under :-
Particulars Exhibit
Sitaben Ishwarbhai (mother of 13
the deceased)
Ishwarbhai Kanjibhai Patel 15
(father of the deceased)
Krunal Ishwarbhai Patel 17
(brother of the deceased)
Ambalal Kanjibhai Patel 18
(younger brother of the
deceased)
Jayaben Ambalal (aunty of the 19
deceased)
Manilal Ambalal Patel (uncle of 20
the deceased)
Lilaben Kantilal (aunty of the 21
deceased)
Shardaben Manilal (aunty of the 22
deceased)
Nasratkhan Anwarkhan Pathan - 32
PSO
5. In the above background of facts,
learned Additional Public Prosecutor Ms. Monali H. Bhatt submits that the learned Judge ought to have appreciated the deposition of the Doctor at Exhibit 39 which shows that the deceased was Page 5 of 18 R/CR.A/853/2004 JUDGMENT compelled to consume poison, because of the physical and mental torture. Further, the marriage span was only of one year. In addition, the deposition of the aunt of the deceased should be believed who has stated that the deceased's in-laws were constantly demanding for money and even five days prior to the incident, Dimple had told her about the demand of dowry. It is further submitted that the FSL Report had disclosed the presence of the chemical poison and therefore, the deceased had consumed poison because of the demand of dowry. It is therefore, submitted that the judgment and order of the learned Additional Sessions Judge requires to be upturned by this Court.
6. Per contra, learned Advocate for the respondent Mr. Tejas P. Satta has taken this Court through the evidence and through the well reasoned and detailed judgment and order of the learned Judge and has submitted that no interference is called by this Court.
Page 6 of 18R/CR.A/853/2004 JUDGMENT
7. 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 catena of decisions. Before proceeding with the matter and before this Court goes to the factual scenario, as it emerges before the Trial Court, it would be relevant to refer to the principles to hear an appeal against acquittal, which are time and again reiterated by the Apex Court. More particularly, in a recent judgment in the case of S. Govindaraju v. State of Karnataka reported in (2013) 15 SCC 315, wherein, the Apex Court held that it is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court Page 7 of 18 R/CR.A/853/2004 JUDGMENT below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. The Apex Court further held that while doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence.
8. Further, the Apex Court in Basappa v. State of Karnataka reported in (2014) 5 SCC 154, held that the reversal of a judgment of acquittal passed by a trial Court is permissible, only if the judgment of the trial Court is perverse and just because a different view is possible, as per the appellate Court, the findings of the trial Court should not be normally reversed.
Page 8 of 18R/CR.A/853/2004 JUDGMENT
9. In a recent 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 paragraph 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 Page 9 of 18 R/CR.A/853/2004 JUDGMENT 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."
10. 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. Even in a recent decision of the Apex Court in the case of Mookiah and Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu (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 Page 10 of 18 R/CR.A/853/2004 JUDGMENT 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 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 Page 11 of 18 R/CR.A/853/2004 JUDGMENT 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]."
12. It is a settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. On the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in the said impugned judgment cannot be said to be perverse and this view is based on facts. The prosecution have failed to prove the main ingredients for bringing home the charges namely demand for dowry and inducement.
13. At this stage, it is necessary to reproduce Sections 498-A, 306 and 114 of the Indian Penal Code which reads as under :-
Page 12 of 18R/CR.A/853/2004 JUDGMENT "498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
306. Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
114. Abettor present when offence is committed. - Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
14. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala & Anr reported in (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal.
Page 13 of 18R/CR.A/853/2004 JUDGMENT 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 view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
15. Having heard learned Advocates and perusing the record of the case and on the touchstone of the aforesaid decisions, the following facts stand proved :-
a) The prosecution has not proved that there was demand for dowry or harassment which would fall within the purview of Section 498(A) of the Indian Penal Code.
b) Even on facts, this Court is of the Page 14 of 18 R/CR.A/853/2004 JUDGMENT considered view that the death did not occur due to any mental harassment by the accused.
c) The principles enunciated by the Apex Court will not permit this Court to upturn the judgment and order of the learned Sessions Judge as the prosecution has not proved that there was abetment and that the accused were subjecting the deceased to any harassment for getting dowry.
Therefore, this Court cannot invoke Section 113(A) of the Evidence Act.
16. I am unable to accept the submissions of learned Additional Public Prosecutor Ms. Monali H. Bhatt that the findings of the Court are perverse. The findings of the Court on this aspect is just and germane as the totality of the evidence on record nowhere states that there was a demand of dowry either by respondent No.1 or respondent No.3. If we go the extremities of the statements made by the complainant and other witnesses, Page 15 of 18 R/CR.A/853/2004 JUDGMENT they have given parrot evidence of demand of Rs.50,000/=. This demand was never reflected in any earlier statements of the deceased. On the contrary, in the statement under Section 313 of the Code of Criminal Procedure, 1973, an entirely new story rebutting the allegations of dowry are made, which have rightly decided by the learned Judge. I do not feel that this ground raised by the prosecution can be brought home against the accused to upturn the judgment and order of the learned Judge.
17. This takes this Court to the next aspect of Section 306 of the Indian Penal Code. There is nothing on record which would go to show that the accused had abetted the death of the deceased. On the contrary, it appears that just before to her going from her matrimonial home to her parental home, she was ill- treated because of her love marriage with the son of the accused No.1. All this cumulatively have led to the acquittal of the accused and therefore, Page 16 of 18 R/CR.A/853/2004 JUDGMENT I do not find any justification in reversing the well reasoned judgment of the Trial Court.
I am supported in my view by the latest decision of the Apex Court in the case of Kuldeep Kaur v. State of Uttarakhand reported in (2014) 10 SCC 584 and also the decision in the case of KK Salma vs. R.V. Surya Rao reported in 2013 CRLJ 2189.
18. In the result, the judgment and order dated 21.01.2004 passed by the learned Additional Sessions Judge, Fast Track Court No.5, Mahesana in Sessions Case No.20/2002 is confirmed.
19. By giving benefit of doubt to the accused, this appeal is sans merits and therefore, stands dismissed. Bail and bail bond, if any, stands cancelled. Record and proceedings, if any, be sent to the Trial Court forthwith.
Sd/-
Page 17 of 18R/CR.A/853/2004 JUDGMENT (K.J. THAKER, J.) CAROLINE Page 18 of 18