Gujarat High Court
The State Of Gujarat vs Dilip Nandkishor ... on 2 September, 2015
Author: K.S.Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/10/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 10 of 1999
With
CRIMINAL APPEAL NO. 11 of 1999
With
CRIMINAL APPEAL NO. 432 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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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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THE STATE OF GUJARAT....Appellant(s)
Versus
DILIP NANDKISHOR DHOBI....Opponent(s)/Respondent(s)
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Appearance:
MR LR PUJARI, APP for the Appellant(s) No. 1 in all 3 appeals
MR BS PATEL for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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Date : 02/09/2015
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. These three appeals arise out of the same judgment and order dated 27-3-1998 passed by the learned 5th Additional Sessions Judge, Vadodara, in Sessions Case No.163 of 1997 whereby the original accused No.1 was convicted and sentenced to undergo RI for seven years with fine of Rs.2,000/-, in default, to suffer further SI for three months for the offence punishable under section 304 Part-I of Indian Penal Code (hereinafter referred to as "IPC" for short) and RI for six months with fine of Rs.500/-, in default, to suffer further SI for one month for the offence punishable under section 201 of IPC. Original accused Nos.2 and 3 were acquitted of all the offences charged against them. Criminal Appeal No.10 of 1999 has been filed by the State for enhancement of sentence, Criminal Appeal No.11 of 1999 has been filed by the State against acquittal of accused under section 302 of IPC while Criminal Appeal No.432 of 1998 has been filed by the original accused No.1 against his conviction for the offence punishable under Section 304 Part-I of IPC.
2. Short facts of the prosecution case are that a complaint was lodged by the complainant Nanabhai Ramjibhai Singhal, father of the deceased with Karelibaug Police Station, Vadodara, for the offences punishable under sections 302 read with section 34 of IPC alleging inter alia that the deceased, wife of accused No.1 and daughter-in-law of accused Nos.2 and 3 were abusing and giving mental and physical torture to the deceased regarding household work and therefore, the deceased and her husband were living separately on the first floor of the house where accused Nos.2 and 3 were staying. As accused No.1 was not earning anything, mental torture continued and therefore, the Page 2 of 13 HC-NIC Page 2 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT deceased started to earn by doing ironing work and thereafter accused were demanding and pressuring the deceased to pay Rs.500/- towards rent. On the day of Bhaibij (second day of New Year) on 13-11-1996, the deceased was desirous to go to her parents' house at Ahmedabad and as it was denied by the accused, there was some quarrel between the accused and the deceased and therefore, the accused in collusion with each other with a view to kill her at about 7.45 p.m. in House No.41 situated at Manav Jivan Society, Harani, Vadodara, came with iron wire and strangulated her. With a view to destroy the evidence of crime, the accused took her to the hospital giving the history at the hospital that she had fallen from the staircase and became unconscious. Upon filing of the complaint, the police started investigation and at the end of investigation, charge sheet was filed before the Court of learned Judicial Magistrate First Class, Vadodara.
2.1 As the offence was triable by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions at Vadodara. The learned Sessions Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused.
2.2 To prove the guilt against the accused, prosecution examined following 9 witnesses:
i) P.W.No.1, Nanabhai Ramjibhai Singhal, the complainant, father of the victim at Exh.10.
ii) P.W.No.2, Bharatbhai Nanabhai Singhal, brother of the victim at Exh.17.
iii) P.W.No.3, Minaben Manharlal at Exh.33.Page 3 of 13
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iv) P.W.No.4, Chandubhai Shankarbhai Chauhan, panch witness at Exh.34.
v) P.W.No.5, Govindbhai Babubhai Rajput, panch witness at Exh.36.
vi) P.W.No.6, Jivanbhai Parsottambhai Macwana at Exh.38.
vii) P.W.No.7, Dr.Vaishaliben Yasvantrav Shukla at Exh.41.
viii)P.W.No.8,Sajid Rahimmiya Saudagar, panch witness at Exh.49.
ix) P.W.No.9, Shivdansinh Swarupsinh Chauhan, I.O. At Exh.55.
2.3 Prosecution also produced and relied upon several documentary evidence namely, complaint Exh.11, panchnama of clothes worn by the deceased at Exh.21, panchnama of bodily position of the accused at Exh.22, panchnama of surname of accused at Exh.22, copy of station dairy at Exh.25, receipt of muddamal sent to FSL for analysis at Exh.28, forwarding note of the muddamal sent for analysis at Exh.29, panchnama of scene of offence at Exh.37, inquest panchnama at Exh.39 Certificate of Forensic Department, SSG Hospital, Vadodara, at Exh.45, post mortem note at Exh.42, etc. 2.4 On submission of closing pursis by the prosecution, learned Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua incriminating evidence wherein they have denied all the charges. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned 5th Additional Sessions Judge, District Vadodara, delivered the impugned judgment and order as aforesaid in the earlier part of this judgment giving rise to prefer the present appeals.
3. Heard learned APP, Mr.L.R.Pujari for the State and learned Page 4 of 13 HC-NIC Page 4 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT advocate, Mr.B.S.Patel for the original accused.
4. Learned APP, Mr.Pujari, for the State took us through the evidence of complainant-father of the victim, medical evidence and post mortem report and contended that keeping in mind the oral as well as documentary evidence on record, as there was a ligature mark found on the neck of the deceased, it appeared to be a case of strangulation and therefore, the trial court has committed a grave error in acquitting the accused persons for the offence punishable under section 302 of IPC. He therefore contended that acquittal appeal qua original accused is required to be entertained. He further contended that looking to the fact that the offence against the accused has been proved beyond reasonable doubt, no leniency should have been shown towards the accused No.1 while imposing sentence and therefore, he sought to enhance the sentence imposed on the accused No.1 and therefore, appeal for enhancement of sentence of accused No.1 is required to be allowed.
5. Learned advocate, Mr.B.S.Patel for the original accused tried to show from medical jurisprudence about the distinction between hanging and strangulation. He contended that the accused No.1 has been imposed with the sentence of seven years and looking to his poor family background, sentence imposed on him may not be enhanced. It is, therefore, requested that the Criminal Appeal No.10 of 2009 filed by the State may be dismissed and Criminal Appeal No.432 of 1998 filed by the accused may be partly allowed by reducing sentence.
5.1 As far as acquittal of the accused for the offence under section 302 of IPC is concerned, learned advocate, Mr.Patel contended that the reasons assigned for recording a finding of acquittal of the accused for the offence punishable under Page 5 of 13 HC-NIC Page 5 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT sections 302 and 34 of IPC are reasonable and justifiable. According to him, there are glaring and major contradictions and material improvements without any satisfactory explanation in the depositions of prosecution witnesses and therefore, the accused were rightly acquitted by the trial court under those respective sections. He further submitted that in an appeal against the order of acquittal, the judgment and order delivered by the trial Court deserves to be upheld as proper, as plausible reasons for acquittal have been recorded. He ultimately urged to dismiss Criminal Appeal No.11 of 2009.
6. We have gone through the oral as well as the documentary evidence on record together with the findings arrived at by the trial court in the impugned judgment and order.
7. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions.
7.1 In the case of Dilawar Singh and Others Vs. State of Haryana reported in (2015)1 SCC 737, it has been held by the Hon'ble Supreme Court in Paragaph 36 and 37 as under:
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
37. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, the scope of power of Page 6 of 13 HC-NIC Page 6 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT appellate court dealing with an appeal against acquittal has been considered and this Court held as under:
"42.....(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."
Unless there are substantial and compelling reasons, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan vs. Shera Ram (2012) 1 SCC 602."
7.2 In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Hon'ble Apex Court In para 16 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 Page 7 of 13 HC-NIC Page 7 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT whether any of the accused is connected with the commission of the crime he is charged with."
7.3 In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 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 anke 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 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."
7.4 Even in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in 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 appellant 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 Page 8 of 13 HC-NIC Page 8 of 13 Created On Tue Sep 08 00:34:16 IST 2015 R/CR.A/10/1999 JUDGMENT 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 vs. Sohan Lal and Others, (2004) 5 SCC 573]"
7.5 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 Vs. 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 (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."
7.6 Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66.
7.7 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then elaborate discussion of evidence or assigning fresh reasons are not necessary.
8. We have considered the above referred rival submissions made by the learned advocates for the respective parties in light of the principles laid down in the aforesaid decisions.
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9. It appears that the trial court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has acquitted the accused under respective charges. This Court is, therefore, of the opinion that the trial court was completely justified in acquitting the accused of those respective charges. Therefore, the findings recorded by the trial court in that regard are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same and therefore, Criminal Appeal No.11 of 2009 is required to be dismissed.
10. The crucial evidence in the present case is the evidence of the complainant-Nanabhai Ramjibhai Singhal, who is father of the deceased wherein he has narrated the incident in detail. He has deposed that after receiving information from one of the relatives about death of his daughter by falling from the staircase, he went to the house of the accused where it was informed that she was in the hospital. When he went to the hospital, as he saw ligature mark on the neck of the deceased, he informed the police about doubtfulness regarding the death of his daughter on the ground that the deceased had strange relations with her husband and in-laws. Evidence of P.W.No.2- Bharatbhai Nanabhai Singhal, who is brother of the deceased and who has not seen the dead body of the deceased is also crucial in this case. Another important evidence is the evidence of Dr.Vaishaliben Yashvantrav Shukla, who has performed post mortem on the dead body of the deceased. She has noted following injuries on the body of the deceased:
1) Abrasion 2 x 1 cm present over both lower eyelids bilateral, over the medial & inner of the lower eyelids.
2) Small, semi-lunar abrasions around the nose,
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corresponding with fingernail marks.
3) Abrasion present over the inner aspect of right side of lower lip, tissue deep 1x1 cm, corresponding to imprint of upper teeth.
4) Imprint abrasion with contusions on the lateral aspect & front of the neck below level of thyroid, bilaterally present 5 x 1.5 cm, 7 cm below angle of mandible on the right side & 6 x 1.5 cm, 7.5 cm below angle of mandible left side horizontally directed.
5) Scratch abrasions, semi-lunar in shape on the lateral aspect of left shoulder & medical aspect in the left axillary region of upper limb with surrounding contusion.
6) Abrasion with contusion over the lateral aspect of right wrist joint 2x1 cm.
7) Contusion 2x1 cm over medial aspect of M/3 of left thigh.
8) Abrasion 2x0.5cm over the back of right leg M/3.
9) Abrasions semi lunar in shape over the lateral aspect below left elbow joint.
10) Lacerated wound 2 x 1cm x bone deep over medial aspect right ankle joint.
11) Two semi lunar & abrasions over both upper arms middle /3 outer aspect.
12) Semi lunar abrasions over anterior aspect of both forearm just below elbow.
13) Abrasion over the front of left wrist 2x1 cm.
14) Three abrasions over the dorsum of the right hand over ring & middle finger.
She was cross examined at length on the aspect of strangulation and tried to develop the case of suicide, however, she has denied the same.
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11. In view of the aforesaid, as far as conviction of the accused No.1 under section 304 Part-I of IPC is concerned, taking into account the aforesaid evidence as well as the medical evidence and the fact that the incident in question has happened at the matrimonial home of accused No.1, prima facie it appears to be a case under section 302 and therefore, it is very difficult to convict the accused under section 304 part-I of IPC. However, taking into consideration the fact that incident is of November, 1996 and looking to the family condition of accused, though normally we would have awarded 10 years of imprisonment in such a case, looking to the aforesaid family background of the accused, we are not considering the case under section 302 of IPC and also not considering for enhancement of sentence imposed on the accused No.1 but we are confirming the sentence of the accused No.1 for the offence under Section 304 Part-I of IPC and thereby confirming the impugned judgment and order. Therefore, Criminal Appeal No.10 of 2009 filed by the accused No.1 and Criminal Appeal No.432 of 1998 filed by the State are required to be dismissed.
12. In view of the above, all three appeals stand dismissed. The judgment and order dated 27-3-1998 passed by the learned 5th Additional Sessions Judge, Vadodara, in Sessions Case No.163 of 1997 is hereby confirmed. Bail bonds shall stand cancelled. If the accused No.1 has not undergone the prescribed period of sentence, he shall surrender before the jail authority within a period of eight weeks from today to undergo the remaining period of sentence. Record and proceedings shall be sent back forthwith to the trial court.
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