Gujarat High Court
State Of Gujarat vs Gajendrasing Hemantsinh Jadeja on 4 February, 2025
Author: A.S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 150 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
GAJENDRASING HEMANTSINH JADEJA & ORS.
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Appearance:
MR UTKARSH SHARMA, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,4
MR DHARAMVEERSINH J SOLANKI, for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeal filed by the Appellant-State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 06.11.1996 passed by the Additional Sessions Judge, Jamnagar (hereinafter referred to as "the Trial Court") in Sessions Case No.51 of 1995, whereby the Trial Court has acquitted the respondents- accused for the offences punishable under Sections 302, 304(B), 498(A), 506(2) and 114 of Indian Penal Code, 1860, (for short, "the IPC") and Sections 3 and 7 of the Dowry Prevention Act, 1961.
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2. The prosecution case emanates from the FIR (being No.55 of 1995) registered by the deceased complainant on 08.02.1995 at City 'B' Division Police Station, Jamnagar (at Exh.52), wherein she has alleged that she was being harassed by the accused herein by demanding dowry. The contents of the FIR reveal that she has alleged that there was some dispute going on between the accused No.1 (the husband) with regard to the maintenance, and after the compromise was entered upon, she along with her husband stayed separately at Jamnagar and at that time, the other accused (in-laws) as well as brother-in-law used to come at their home and used to demand money time and again. She has further alleged that they also demanded an amount of Rs.16,000/- and ultimately, on that day, there was some quarrel with her husband - accused No.1, who all of sudden, after threatening her, went out after some argument and bickering. Thereafter, she poured kerosene and set her ablaze. Accordingly, the charge was framed against four accused at Exh.6. The charge was framed against the accused for the offence punishable under Sections 302, 304(B), 498(A), 506(2) and 114 of the IPC and Sections 3 and 7 of the Dowry Prevention Act, 1961.
3. At the outset, the present appeal is already abated, so far as the accused Nos.2 and 4 i.e. the father-in-law and mother- in-law, are concerned and the present appeal is confined to the accused Nos.1 and 3 i.e. the husband and brother-in-law.
4. The Trial Court, after examination of ocular as well as documentary evidence, has acquitted all the accused for the offences punishable under Sections 302, 304(B), 498(A), Page 2 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined 506(2) and 114 of the IPC and Sections 3 and 7 of the Dowry Prevention Act, which has given rise to the present appeal.
5. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, at the outset, has referred to the dying declaration at Exh.39 recorded by the Executive Magistrate. The PW-10 - Dheerajlal Laxmishankar Vyas, is examined at Exh.37. It is submitted that in her dying declaration, she refers that she was set ablaze by the accused pouring kerosene on her.
6. Learned Additional Public Prosecutor has further referred to the deposition of PW-13 - Chhotubha Devubha Chudasama (at Exh.43), and PW-7 - Ajaysinh Devubha (at Exh.28), who are brothers of the deceased. While referring to their evidence, he has submitted that they have categorically deposed before the Trial Court that the accused were demanding Rs.16,000/- from the deceased and other articles as dowry, which caused mental harassment to the deceased and ultimately, the accused poured kerosene on her and set her ablaze as the dowry demand was not met by the parents of the deceased.
7. Learned APP has further referred to the history referred by the doctor, who had treated the deceased at Exh.41. He has referred to the deposition of Dr.Ali Mohmad Osman Noida examined at Exh.42 and has submitted that the history was recorded by him.
8. Learned Additional Public Prosecutor has also referred to the letters written by the accused No.2 (the father of the accused No.1) demanding articles such as watch, furniture and other household articles. These letters are produced at Exh.44 Page 3 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined and Exh.45. He has, thus, submitted that there is ample evidence, which would suggest that the deceased was subjected to the cruelty and when the dowry demand was not made, she was set ablaze by pouring kerosene.
9. In the alternative, learned Additional Public Prosecutor Mr.Sharma has further submitted that assuming that the charge for offence under Section 302 is not proved, however there is an ample evidence to bring home the charge of Section 498A of the IPC, against the present accused No.1, who is the husband of the deceased. Thus, it is urged that the present appeal may be allowed and quashed and set aside the judgment and order of acquittal recorded by the Trial Court.
10. Per contra, learned advocate Mr.Dharmveersinh Solanki, appearing for the accused has submitted that the judgment and order passed by the Trial Court may not be interfered with as the same is precisely passed. He has submitted that there is no independent witness(es) examined by the prosecution, which can prove the charge of cruelty against the accused Nos.1 and 3. It is submitted that the brothers, who were examined by the prosecution as PWs-7 and 13 are interested witnesses, and even if their depositions are closely read, the allegations are against the accused Nos.2 and 4, who have passed away.
11. Learned advocate Mr.Solanki has further referred to the documentary evidence at Exh.30, wherein it is submitted that the amount of Rs.16,000/- was being demanded by the accused as it was required to be lawfully paid to them in view of the settlement and it cannot be said that the demand of Page 4 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined Rs.16,000/- would be a dowry demand. It is further submitted that the reliance placed by the prosecution on the letters written by the accused No.2 are disbelieved by the Trial Court since the Trial Court has not referred the same to the Handwriting Expert and they were directly produced by the prosecution witnesses - the brothers of the deceased before the Trial Court. It is submitted that it is not proved that the said letters were in the handwriting of the accused more particularly the accused No.2.
12. Learned advocate Mr.Solanki has submitted that in fact, after the settlement was arrived at between the accused No.1 and the deceased, they started residing separately at Jamnagar and even if the contents of the FIR are read, it would prove that the dowry demand was at the behest of other accused and not by the present accused Nos.1 and 3.
13. Learned advocate Mr.Solanki, has also referred to the deposition of the Defence Witness Nos.1, 2 and 3 and has submitted that they have categorically proved the fact that the accused No.1 was present at his office along with them when the deceased had set herself ablaze. He has also referred to the evidence of the house owner (PW-6) - Pradhumansinh Chhatrasinh (at Exh.27), who has categorically stated that when he arrived at the scene of incident, the doors were closed from the inside and they could not open the door and ultimately, the deceased had opened the door and accordingly, she was covered by him by a bag and thereafter, he had called the accused No.1 from his office Doordarshan Kendra, where he was serving. He has submitted that this witness has Page 5 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined deposed that thereafter, the accused No.1 along with the staff had arrived at the scene of offence and the deceased was taken by them to the hospital.
14. While referring to the judgment of the Supreme Court in the case of Chandrappa and other Vs. State of Karnataka, (2007) 4 SCC 415, it is urged that the present appeal may not be entertained and the view, which is found favourable by the trial Court acquitting the accused, may not be entertained. Thus, it is urged that the acquittal recorded by the Trial Court may not be reversed in view of evidence of these witnesses.
15. We have heard the learned advocates appearing for the respective parties. We have also examined the evidence threadbare along with the findings of the Trial Court.
16. As narrated hereinabove, the case of the prosecution as per the charge at Exh.6 is that all the accused used to demand dowry from the deceased and she was time and again harassed by them. It is also alleged that also demanded an amount of Rs.16,000/-, after the compromise was entered between the accused No.1, and ultimately, she was murdered by the accused by pouring kerosene and setting her ablaze.
17. The case of the prosecution as per the charge at Exh.6 differs from the contents of the complaint dated 08.02.1995, which has been given by the deceased. Thus, it has to be treated as a dying declaration. As per the contents of the complaint, she has alleged that there was some maintenance case going on between the accused No.1 and herself, in which, the Court had granted maintenance of Rs.375/- per month and Page 6 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined she was also paid Rs.8,000/- and compromise was entered and ultimately, she went with the accused No.1 and was staying at Jamnagar with him. It is further alleged that when she was at Jamnagar with her husband, at that time, the in-laws i.e. the deceased accused along with the accused No.3 used to come at home and used to demand dowry from her. She has also referred that the other accused demanded Rs.16,000/- as costs of litigation and ultimately, she was unable to pay and some altercation took between her and the husband in the evening and the husband had arrived at 5 O'clock at the house and thereafter, he has threatened her to kill her and left the house due to altercation and bickering, she ultimately poured kerosene on her and set herself ablaze.
18. At this stage, it would be apposite to refer to the deposition of the PW-6 (the house owner), who has examined at Exh.27, in whose house the incident had occurred. The deceased and the accused no.1 were staying in his house after the compromise. He has categorically stated that on hearing hue and cry, he rushed to the room, where the incident had occurred and when he saw that smoke was coming out from the room and the deceased was crying for help, he had given four to five blows of his leg on the door, however the door did not open and ultimately, it was open by the deceased herself and he had covered her with a bag. It is further deposed by him that he along with the other persons went on motorcycle to call the accused No.1 from his office Doordarshan Kendra, where he was serving and thereafter, the husband along with staff arrived at the scene of offence and took her to the hospital. He was declared hostile by the prosecution. In the Page 7 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined cross-examination of the present witness, the prosecution was unable to dislodge about his deposition and he has firmly further stated that on arrival of the ambulance, the deceased was taken by the accused No.1 in the ambulance to the hospital.
19. Similarly, the Defence Witnesses, DW Nos.1, 2 and 3, who are colleagues of the accused No.1, have supported him and they have categorically stated that the accused No.1 was with them at his office, where he was serving. The DW-1 - Suresh Anandji Bhodar, who has established his presence in the office along with documentary register, which shows that when the incident had occurred the accused No.1 was present in the office and not at the scene of offence. DW-2 - Govind Dayabhai and DW-3 - Chandrakant Motiram Raikard have also deposed on the same line. The prosecution is failed to dent their depositions and the evidence of all the witnesses, as mentioned hereinabove, reveals that the accused No.1 was not present at the scene of offence, when the incident had occurred, and the deceased was taken by him to the hospital. Thus, in view of the evidence of these witnesses, the charge of Section 302 of the IPC, which has been framed against the accused No.1 and the accused No.3 is not proved beyond reasonable doubt.
20. So far as the charge of Section 498A of the IPC is concerned, the Trial Court has disbelieved the documentary evidence i.e. the letters, which are produced by the witnesses directly before the Trial Court. The Trial Court has disbelieved these evidences only for the reason that no Handwriting Expert Page 8 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined was examined to prove that the letters were written by the accused No.3, who is the father-in-law. The evidence reveals that the demand of dowry was made by the in-laws and not by the present accused No.1. On the basis of the FIR and the evidence of the father of the deceased - Devubha Motibha Chudasama (PW-8) and two brothers (the PW-7 and the PW-
13) have deposed that there was a demand of Rs.16,000/- by the accused, however as noticed by the Trial Court and by us that such demand is not in the form of dowry but the demand was made in view of the settlement. Such demand is also made by the deceased accused and not by the accused No.1. The Trial Court has disbelieved the evidence of these witnesses on the ground that they are interested witnesses.
21. A very important witness - Pratapsinh, who could have proved the charge of harassment is also not examined by the prosecution.
22. The marriage span of the accused and the deceased is above 7 years and it appears that there was some dispute between the deceased and the accused No.1, and the accused No.1 was ordered to be paid the maintenance, which he had already paid of Rs.375/- along with Rs.8,000/- and ultimately, the compromise had arrived at and the deceased went separately to live with him. Thus, even if the evidence of the prosecution is believed, the same would be against the deceased accused, so far as the role of the accused No.3, who is brother-in-law, is concerned, except general allegations, we do not find any concrete evidence against him.
23. At this stage, it would be apposite to refer to the Page 9 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025 NEUTRAL CITATION R/CR.A/150/1997 JUDGMENT DATED: 04/02/2025 undefined observations of the Supreme Court in the case of Chandrappa and other (supra). The Supreme Court after survey of various judgments, has ultimately discussed the scope of Appellate Court in interfering the acquittal. The same is as under -
"41. 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."Page 10 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 00:36:24 IST 2025
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24. Thus, it is held by the Supreme Court that in the 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, and secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced, reaffirmed and strengthened by the trial Court. It is further held that if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the findings of acquittal recorded by the trial Court.
25. In the present case, in fact, the evidence, which has surfaced on record, does not in any manner, establish the complicity of the present accused in the offence. So far the other accused are concerned, they have passed away.
26. For the foregoing discussion, we unhesitatingly hold that the reasons given by the Trial Court for recording the judgment and order of acquittal in favour of the respondents-accused, are convincing. The present appeal fails. The same stands dismissed.
27. Record and proceedings, if any, shall be sent back to concerned Trial Court, forthwith.
Sd/-
(A. S. SUPEHIA, J) Sd/-
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