Gujarat High Court
State Of Gujarat vs Maheshbhai Babubhai Vaghari & ... on 14 July, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/2192/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2192 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
MAHESHBHAI BABUBHAI VAGHARI & 2....Opponent(s)/Respondent(s)
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Appearance:
MR JK SHAH, APP for the Appellant(s) No. 1
MR PRAVIN GONDALIYA, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 14/07/2015
ORAL JUDGMENT
Page 1 of 21
R/CR.A/2192/2004 JUDGMENT
1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Additional Sessions Judge (3rd Fast Tack Court), Sabarkantha at Himmatnagar, dated 31.07.2004 rendered in Sessions Case No.39 of 2004, whereby the learned Trial Judge acquitted the original accused-opponents herein of the charges for the offences punishable under Sections 498(A), 323 and 306 of the Indian Penal Code (for short "IPC").
2. The brief facts of the prosecution case are that complainant-Vajiben Atmaram Vaghari had lodged a complaint dated 19.05.2003 stating that she has got five daughters and from amongst them, and the marriage of second daughter Prabhaben had taken place with Maheshbhai Babubhai Vaghari residing at Village Chhapariya, Tal: Himmatnagar before ten years. After the one year of the marriage, her daughter and son-in-law were staying at the maternal house at Village Itadi with their maternal grand mother-father Keshabhai Gobarbhai Vaghari and Nathiben Keshabhai Vaghari. Page 2 of 21
R/CR.A/2192/2004 JUDGMENT As per the complainant, the daughter of the
complainant was treated well for the initial five years of the marriage and thereafter, for the remaining five years, the son in law was raising excuses regarding the home work and was beating her frequently and was torturing her (the daughter of the complainant). Therefore, the complainant's daughter was coing back to the maternal home and at that time, she was being perused and was being sent at the in-laws house at Village Itadi and the advise was being given the son in law. According to the complaint of Yajiben, the grand father-in-law Keshabhhai Gobarbhai Vaghari and grant mother-in-law Nathiben Keshabhai of, her complainant's daughter were causing harassment by raising the objections and excuses and the said fact was being stated by her daughter when she was coming to the home as the complainant's daughter could not tolerate the torturing of the accused, she (daughter of the complainant) had committed suicide by jumping down in a huge well. Therefore, a complaint came Page 3 of 21 R/CR.A/2192/2004 JUDGMENT to be filed against the accused.
3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of the learned Additional Sessions Judge (3rd Fast Tack Court), Sabarkantha at Himmatnagar, which was, thereafter, numbered as Sessions Case No.39 of 2004. Since opponents-accused did not plead guilty and claimed to be tried, they were tried for the alleged offences.
4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 10 witnesses as well as the prosecution also produced 7 documentary evidences.
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R/CR.A/2192/2004 JUDGMENT
5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the the learned Additional Sessions Judge (3rd Fast Tack Court), Sabarkantha at Himmatnagar acquitted the accused of all the charges leveled against them. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponents-accused.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal.
7. Learned APP, vehemently, submitted that the learned Trial Judge has not properly considered the deposition of the complainant PW:2, Vajiben Atmaram Vaghari. She further submitted that the learned Trial Judge has erred in not appreciating the evidence of the complainant who had Page 5 of 21 R/CR.A/2192/2004 JUDGMENT categorically deposed that torture and harassment have been administered by the accused. The learned APP further submitted that the learned Trial Judge ought to have taken into consideration the span of marriage life i.e. only five years, and therefore, the learned Trial Judge ought not to have acquitted the accused for offence with which they were charged. The learned APP further submitted that the learned Trial Judge ought to have taken into consideration medical evidence which supports the prosecution case. The learned APP further submitted that it ought to have been appreciated that the deceased committed suicide within a period of five years of her marriage and therefore, necessary presumption ought to have been drawn under Section 113 of the Indian Evidence Act. There were mental harassment meted out to the deceased and that she had taken the extreme step of committing suicide. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. The learned APP, further, Page 6 of 21 R/CR.A/2192/2004 JUDGMENT submitted that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside.
8. As against that, learned advocate for opponents-accused supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. Therefore, the criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned Trial Court is required to be confirmed.
9. I have heard learned APP for the appellant- State and the learned advocate for the respondent-accused and perused the material on record.
10. In view of the above, I have to appreciate the facts in this case from the touchstone of the Page 7 of 21 R/CR.A/2192/2004 JUDGMENT decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals.
11. 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. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006 (6) S.C.C. 39), the Apex Court has narrated 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;
"54. 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."
12. Further, in the case of CHANDRAPPA VS. STATE OF KARNATAKA (2007 (4) S.C.C. 415), the Apex Court laid down the following principles; Page 8 of 21
R/CR.A/2192/2004 JUDGMENT "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, re-appreciate 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
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R/CR.A/2192/2004 JUDGMENT
on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
13. Thus, it is a settled principle that while exercising appellate powers, 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.
14. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. (2007 (3) S.C.C. 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 Page 10 of 21 R/CR.A/2192/2004 JUDGMENT 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."
15. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
16. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS. ((2009) 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 postmortem 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 Page 11 of 21 R/CR.A/2192/2004 JUDGMENT 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."
17. Even in a recent decision of the Apex Court in the case of MOOKKIAH 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 in 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 reappreciate 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 Page 12 of 21 R/CR.A/2192/2004 JUDGMENT 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]"
18. It is also a settled legal position that in acquittal appeals, 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 VS. HEMAREDDY (AIR 1981 SC 1417), wherein it is held as under;
"......This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:
(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."
19. In the recent decision, the Hon'ble Apex Court in SHIVASHARANAPPA AND OTHERS V/S. STATE OF KARNATAKA (JT 2013 (7) SC 66) has held as under:
"That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."Page 13 of 21
R/CR.A/2192/2004 JUDGMENT
20. The affidavit filed by the accused reads as under:
"I, Maheshbhai Keshabhai Vaghari, aged about 45 years, Occu.: Labour, residing at Nr. Hadialpul, Chhapariya, Himatnagar, respondent No.1 herein do hereby solemnly affirm and state on oath as under:
My marriage was taken place with the deceased before ten years from the alleged incident. Incident occurred on 18-5-2003. Our marriage life was about ten years, and I have three children out of wedlock. Two daughters and one son. Eldest daughter's name is Nayna who is aged about 19 years, second daugher's name is Karishma who is 16 years, and son namely Sachin is aged about 14 years who is studying in 8th standard and all are residing with me. I further say that I brought up my children with the best of my abilities. My eldest daughter has attended the marriageable age. I further say that my wife/deceased fall into the well accidentally while saving our got from the dog. I further state that my maternal grand father aged about 80 years by now and maternal grand mother aged about 75 years, by now, were also implicated in the alleged offence.
We are not involved in any offence during our lifetime. We are belonging to very lower state of the society. I am the only earning member of my family.
What is stated herein above is true and correct as per my personal knowledge, information and belief and I believe the same to be true and correct."
21. I have gone through the judgment and order passed by the Trial Court and the affidavit filed by the accused. It appears from the affidavit, it is admitted position of the fact that the children are staying with accused no.1 (husband of the deceased) unfortunately after the said Page 14 of 21 R/CR.A/2192/2004 JUDGMENT demise of the deceased and the husband of the deceased i.e. accused no.1 is taking care of his children. Some of the witnesses have turned hostile and they have not supported the case of the prosecution. The important witness- complainant-Vajiben Atmaram Vaghari (mother of the deceased) has turned hostile and she has not supported the case of the prosecution and she has unfortunately not stated anything on oath. I have also perused the oral as well as documentary evidence led by the Trial Court and also considered the submissions made by learned APP for the appellant-State. On going through the entire evidence, it cannot be said that the provisions of Sections 498(A) and 306 of the IPC can be attracted in the facts of this case. I do not find any infirmity in the order passed by the learned Trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned Trial Judge is just and proper. The testimony of the prosecution witnesses do not establish that there was any harassment meted out Page 15 of 21 R/CR.A/2192/2004 JUDGMENT to the deceased. It cannot be said that the accused had caused mental and physical harassment to the deceased so that the deceased may commit suicide. Learned APP has tried to convince this Court that at least accused has been named by the deceased in the complaint and the so-called complaint was also very specific that the accused were harassing her. Hence, I am unable to accept the submission of learned APP that this is a case where I would like to upturn the judgment of the learned Trial Judge which is a well reasoned judgment, and there is no perversity in the same. The evidence of the witnesses also will not permit this Court to take a different view than the one taken by the Trial Court. This is not a case where the deceased has imparted cruelty on the accused. The finding of fact on the touchstone of the decision of the Apex Court will not permit this Court to upturn the judgment of the Trial Court. Even apart from the complaint, the prosecution has not proved that there was any cruelty which leading to abetment of committing Page 16 of 21 R/CR.A/2192/2004 JUDGMENT suicide by the deceased. In the case of Mangat Ram v/s. State of Haryana, reported in (2014) 12 SCC 595, the Apex Court has defined the term cruelty, and therefore, in this case, the evidence nowhere goes to show that there was cruelty to abetment of suicide of the deceased. I have appreciated the evidence on record and the view of the Trial Court cannot be said to be so perverse that this Court requires to convict the accused. There was no alleged cruelty established, and therefore, when the prosecution has not succeeded in establishing the offence under Sections 498(A) and 306 of IPC, this Court cannot upturn the judgment of the Trial Court and taking into consideration all aspects of the matter, the prosecution has not succeeded in establishing the offences under Sections 498(A) and 306 of IPC against the respondents-accused. I am further supported in my view by the decision of the Apex Court in the case of Kuldeep Kaur v/s. State of Uttarakhand, reported in (2014) 10 SCC 584, and therefore, the acquittal cannot be Page 17 of 21 R/CR.A/2192/2004 JUDGMENT interfered with and the present appeal requires to be dismissed. Even in the present appeal, nothing is produced or pointed out to rebut the conclusion of the Trial Court. Even looking to the evidence on record, learned APP is not able to bring home the charge levelled against the accused and persuaded this Court to take a different view than that taken by the learned Trial Judge in view of the catena of decisions of the Apex Court and the latest decision of the Apex Court in the case of State of Punjab v/s. Madan Mohan Lal Verma, reported in (2013) 14 SCC
153. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
22. Acquitting on the touchstone of the aforesaid decisions and on the latest decision of the Apex Court, more particularly when the learned Trial Judge has given cogent reasons for acquitting the accused. It cannot be held that she was subjected to physical cruelty, as per the provisions of Section 498(A) of IPC which forced her to commit Page 18 of 21 R/CR.A/2192/2004 JUDGMENT suicide.
23. At this stage, it is necessary to reproduce Sections 498(A) and 306 of the Indian Penal Code which reads as under:-
"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."
24. There is no proof that the accused were giving mental and physical harassment to the deceased.
25. Having considered threadbare and the judgments on which reliance is placed hereinabove, the accused cannot be convicted for the alleged offences as the chain of circumstantial evidence does not get completed nor do they opine the physical and mental torture by the accused.
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R/CR.A/2192/2004 JUDGMENT 26. I find that the Trial Court, while
considering the evidence on record, has rightly acquitted the accused. The Trial Court has observed that there are various discrepancies in the evidence produced by the prosecution. The Trial Court has doubted the veracity of the investigation. There are loopholes in the evidence and investigation which has been observed by the Trial Court. Moreover, the incident is of the year 2003 and I do not find any strong ground to reverse the decision of the Trial Court. In that view of the matter, the view taken by the Trial Court is not required to be disturbed.
27. I am, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and Page 20 of 21 R/CR.A/2192/2004 JUDGMENT the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court.
28. In view of the above discussions, I am of the opinion that the learned Judge committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed.
29. In the result, the appeal fails and is dismissed. The judgment and order of the Trial Court dated 31.07.2004 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.
(K.J.THAKER, J.) rakesh/ Page 21 of 21