Gujarat High Court
State Of Gujarat vs Ramju @ Ramjan Bhatti on 10 December, 2024
NEUTRAL CITATION
R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2388 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
X X
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STATE OF GUJARAT
Versus
RAMJU @ RAMJAN BHATTI
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Appearance:
MR YURVAJ BRAHMBHATT APP for the Appellant(s) No. 1
MR PATHIK M ACHARYA(3520) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 10/12/2024
ORAL JUDGMENT
1. Present appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the impugned judgment and order dated 7.9.2009 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Bhuj (hereinafter be referred to as "the trial Court") in Sessions Case No. 65 of 2008 whereby the trial Court has Page 1 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined acquitted the accused for the offences punishable under Sections 498(A), 323, 504, 306 etc. of the Indian Penal Code ("I.P.C." for short)
2. Brief facts of the present case, in nutshell, are as under:-
2.1 The complainant Aminaben wife of Ramjan Harun Bhatti, was residing at Kera village and her husband was doing labour work. Aminaben was married with the accused Ramjan Harun Bhatti, 15 years prior to the incident, as per the rite and customs of their community.
She was having three sons and one daughter and she was having two sisters. Her husband was doing labour work, sometime he did not go to labour work and did not get sufficient money hence, quarrel took place between the complainant and her husband very often. Therefore, the complainant informed at her parental home to her brothers about the same, but her brothers convinced her to live with her husband. However, her husband was causing mental and physical harassment to her. Page 2 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024
NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined 2.2 On 6.06.2008, when the complainant cooking food, at that time her husband came from outside and told that why she had gone out and by saying so he beaten her by stick. As she could not tolerate the said harassment from the accused she was induced to commit suicide and had committed suicide by pouring kerosene on her body and set herself on fire.
2.3 Thereafter, brother of complainant took her to the Hospital and then she declared dead. Thereby, the accused has induced the deceased to commit suicide and has committed offence punishable under Section 498 [A], 323, 504 & 306 of I.P.C.. Hence, the complaint was filed being C.R. No.I- 231 of 2008 against the accused husband at Bhuj Police Station.
3. On the basis of the FIR, investigation was carried out and after thorough investigation as there was sufficient evidence against the respondent- accused, charge sheet was filed before the Learned Judicial Magistrate First Class, Bhuj. As the offences committed by the accused Page 3 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined person was exclusively triable by the Court of Sessions as per the provisions of 209 of Cr.P.C., the Learned Judge has committed the case to the Court of Sessions and the case was transferred and placed for trial before the Additional Sessions Judge, Fast Track Court No.4, Bhuj, which has been numbered as Sessions case No.65 of 2008. Thereafter, charge was framed against accused for the offence punishable under Sections 498 [A], 323, 504 & 306 of I.P.C. The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution therefore, laid evidence. The Prosecution, for proving the charge against the accused person, has examined 12 oral witnesses as well as produced 17 documentary evidences on the record of the case.
3.1 After going through documentary as well as oral evidence and after hearing both the sides, the trial Court has acquitted the accused person vide order dated 7.9.2009 passed in Sessions Case No. 65 of 2008 from aforementioned charges.
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4. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant - State of Gujarat has preferred this Appeal.
5. Heard Mr. Yuvraj Brahmbhatt learned Additional Public Prosecutor for the appellant - State of Gujarat and Mr. Pathik Acharya, learned counsel appearing for the respondent - accused at length.
5.1 Mr. Brahmbhatt, learned Additional Public Prosecutor for the appellant - State of Gujarat, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and has submitted that the trial Court has committed serious error of law and on facts both, while passing the impugned judgment and order of acquittal and discarded the oral and documentary evidence produced by prosecution to prove the charge against the present respondent, thus the impugned judgment and order passed by the trial Court is not in consonance with the settled legal principle.
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NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined 5.2 Mr. Brahmbhatt, learned Additional Public Prosecutor has submitted that the prosecution has produced relevant material and also examined the independent witnesses i.e. Doctor who has performed the postmortem, the Deputy Executive Magistrate who has recorded the dying declaration and from the evidence of those witnesses, the prosecution has proved the charged against the present respondent beyond reasonable doubt however, the trial Court has not considered the same while appreciating the evidence of concerned witnesses and passed the impugned judgment and order of acquittal, which is erroneous and contrary to the facts of the case.
5.3 Mr. Brahmbhatt, learned Additional Public Prosecutor has further contended that the deceased sustained serious burn injuries of 90 to 95% at her body and she was in such a condition has no reason to give any false statement before the Deputy Executive Magistrate, who has recorded the dying declaration or before the Page 6 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined concerned police officer before whom she has stated the facts and same were recorded as FIR / second dying declaration. Learned APP submitted that in the said FIR / second dying declaration, the deceased has categorically stated that because of the mental and physical cruelty meted out to her by present respondent, she has no other option but to take such a harsh and last extreme steps, whereby she had poured the Kerosene on her body and set on her fire which suggests that the mental and physical cruelty meted to the extent and therefore, she has committed suicide. Learned APP submitted that all these facts are not properly appreciate by the trial Court while passing the impugned judgment order of acquittal and thus, the trial Court has committed serious error of law and on facts both while passing the impugned judgment and order of acquittal.
5.4 Over and above the aforesaid submissions, learned APP urges before the Court that present Appeal may be allowed and the impugned judgment and order of acquittal may be quashed and set aside. Page 7 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024
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6. As against that Mr. Pathik Acharya, learned Counsel appearing on behalf of the respondent accused has contended that the prosecution miserably failed to establish the case against present respondent under Section 498(A) read with section 306, 323 and 504 of I.P.C. He has submitted that the near relatives of the deceased have not supported the case of the prosecution and from the deposition of the Deputy Executive Magistrate the fact reveals that the said dying declaration was also under serious cloud of doubt and it cannot be believed and conviction cannot be based upon such piece of evidence, which is not supported by the other corroborative piece of evidence.
6.1 Mr. Pathik Acharya, learned Counsel appearing on behalf of the respondent accused has contended that even the said dying declaration was not properly recorded by the Deputy Executive Magistrate, as there was no any endorsement made by the concerned treating doctor that whether the patient was in conscious to give Page 8 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined any declaration or not. He has submitted there was no endorsement on dying declaration and no endorsement on even report also by the treating doctor and under such circumstances, the said piece of evidence in nature of dying declaration is risky to refer and rely and therefore, the trial Court has rightly discarded and disbelieved the said piece of evidence, as the surrounding circumstance creats a highly doubt over the veracity of the dying declaration.
6.2 Mr. Pathik Acharya, learned Counsel appearing on behalf of the respondent accused has contended that even the first information report recorded by the investigating officer was also created serious doubt, as the deceased was unable to give any statement and even her near relatives have stated that she was not in position to even speak while she was taken to the hospital and she was not uttered anything about the incident to the witnesses and since the witnesses are the near relatives they have no other reason to depose before the Court otherwise in favour of the present respondent. Therefore, Page 9 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined under circumstances, the trial Court has not committed any error while passing the impugned judgment and order of acquittal.
6.3 Learned Counsel appearing on behalf of the respondent accused drew the attention of this Court upon the recent pronouncement of the Hon'ble Apex Court in the case of Kamaruddin Dastagir Sanadi reported in 2024 SCC OnLine SC 3541, wherein the Court has held as under:-
18. Section 306 IPC defines abetment of suicide which reads as under:
"306. 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."
20. Abetment has been defined under Section 107 IPC and it reads as under:
"107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing."
21. The very first clause of the aforesaid provision lays down that a person, who abets the doing of a thing, is a person who instigates any person to do that thing. Page 10 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024
NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined Therefore, 'instigation' to do a particular thing is necessary for charging a person with abetment.
22. 'Instigation' is to provoke, incite or encourage a person to do an act.
25. Even in cases where the victim commits suicide, which may be as a result of cruelty meted out to her, the Courts have always held that discord and differences in domestic life are quite common in society and that the commission of such an offence largely depends upon the mental state of the victim. Surely, until and unless some guilty intention on the part of the accused is established, it is ordinarily not possible to convict him for an offence under Section 306 IPC.
26. The salient features constituting an offence under Section 306 IPC were elucidated by this Court in M. Mohan vs. State represented by the Deputy Superintendent of Police3 and it was observed as under:
"43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605:(2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation"and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act Page 11 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined which led the disease to commit suicide seeing no option and this act must have been intended to push the disease in two such a position that he/she committed suicide."
29. There is no direct evidence adduced by the prosecution to prove that the accused-appellant has in any way instigated or provoked the deceased to commit suicide. The accused- appellant on asking of the deceased had simply refused to marry her which is not a positive act on his part with any intention to abet the crime of suicide.
6.4 Learned Counsel for the respondent accused has relied upon another decision of the Hon'ble Apex Court in the case of Kumar @ Shiva Kumar vs. State of Karnataka reported in 2024 3 SCR 329, wherein the Hon'ble Apex Court has held as under:-
"31. In India attempt to commit suicide is an offence under Section 309 IPC. This section provides that whoever attempts to commit suicide and does any act towards the commission of such offence, he shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. But once the suicide is carried out i.e., the offence is complete, then obviously such a person would be beyond the reach of the law; question of penalising him would not arise. In such a case, whoever abets the commission of such suicide would be penalised under Section 306 IPC. Section 306 IPC reads as under:
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.
31.1. Thus, as per Section 306 of IPC, if any person commits suicide, then whoever abets the commission of Page 12 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined 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.
32. The crucial word in Section 306 of IPC is 'abets'.'Abetment' is defined in Section 107 of IPC. Section 107 of IPC reads thus:
107. Abetment of a thing- A person abets the doing of a thing, who-First-Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-
Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
32.1. From a reading of Section 107 IPC what is deducible is that a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. Explanation 1 clarifies that even if a person by way of wilful misrepresentation or concealment of a material fact which he is otherwise bound to disclose voluntarily causes or procures or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing. Similarly, it is clarified by way of Explanation-2 that whoever does anything in order to facilitate the Page 13 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined commission of an act, either prior to or at the time of commission of the act, is said to aid the doing of that act.
33. Suicide is distinguishable from homicide inasmuch as it amounts to killing of self. This Court in M. Mohan Versus State1 went into the meaning of the word suicide and held as under:
(2011) 3 SCC 626
37. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. "Sui"
means "self" and "cide" means "killing", thus implying an act of self- killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
34. In Ramesh Kumar versus State of Chhattisgarh2, this Court delved into the meaning of the word 'instigate' or 'instigation' and held as under:
20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
34.1. Thus, this Court held that to 'instigate' means to goad, urge, provoke, incite or encourage to do 'an act'. To satisfy the requirement of Page 14 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined 'instigation', it is not necessary that actual words must be used to that effect or that the words or act should necessarily and specifically be suggestive of the consequence. But, a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused by his act or omission or by his continued course of conduct creates a situation that the deceased is left with no other option except to commit suicide, then instigation may be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
35. Again in the case of Chitresh Kumar Chopra versus State3, this Court elaborated further and observed that to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. This Court held as follows:
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a (2009) 16 SCC 605 thing that stimulates someone into action;
provoke to action or reaction" (see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.).
18. Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.
35.1. Thus, this Court has held that in order to prove that the accused had abetted the commission of suicide by a person, the following has to be established:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or Page 15 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 6.5 Learned Counsel appearing on behalf of the respondent has also relied upon the decision in case of Irfan alias Naka vs. State of Uttar Pradesh reported in 2023 SCC OnLine SC 1060 wherein the Hon'ble Apex Court has dealt with an issue that whether dying declaration is to be accepted as a legal and valid evidence and observed as under:-
"58............
23. It is not difficult to appreciate why dying declaration s are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator.
59. This Court in Bhajju (supra) has observed as under:
"23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting Page 16 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. ..."
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:
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(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
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(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding Page 18 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined circumstances render such statement of the declarants very doubtful."
6.6 In view of the above decisions of the Hon'ble Apex Court learned Counsel for the respondent has submitted that the trial Court has not committed any error in passing the impugned judgment and order of acquittal. Further, learned Counsel appearing on behalf of the respondent has also submitted that P.W. 1 being a maternal uncle, who is residing in near vicinity has not supported the case of the prosecution and therefore, under such circumstance, Mr. Acharya, learned Counsel urges that present Appeal may be dismissed and the order of trial Court may be confirmed.
7. I have perused the material available on record as well as the documents appended thereto. I have also gone through the impugned judgment and order of acquittal passed by the trial Court. I have also examined the evidence recorded by the trial Court. Page 19 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024
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8. On going through the record and examination of the oral as well as documentary evidence and on detailed examination, certain undisputed facts which are relevant to decide the present Appeal read as under-
9. The marriage span of the deceased was more than 15 years. During the said wedlock, the deceased delivered four children being one daughter and three sons. The deceased was residing with her children and her husband separately from the other family members. The deceased and her husband both were doing labour work and earned their livelihoods. During this 15 years there was no allegation relating to the cruelty or any mental or physical harassment caused to the deceased or cruelty meted out to the deceased. Even, if we believe the case of the prosecution as it is, then it also transpires that for saving the life of the deceased, the husband has also sustained serious burn injuries and has taken a treatment for number of days.
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10. Under the above referred circumstances, another suspicious circumstance arise relating to the manner of recording the dying declaration which creates a serious doubt about the veracity of the evidence in nature of dying declaration. The Deputy Executive Magistrate who has recorded the dying declaration has not consulted the treating doctor regarding the mental and physical fitness of the patient that whether she is mentally fit to give a statement and whether the said piece of evidence can be considered as gospel truth. Since even if we consider the same as genuine piece of evidence, then also in dying declaration she has not stated anything relating to the cruelty meted out on account of mental or physical torture and in spur of moment, she got exited and poured kerosene on herself and ignited herself, under such circumstances that evidence also cannot drag present respondent into alleged offence of cruelty and the abetment for commission of suicide.
11. Though, the prosecution has not examined any independent witnesses. Even one independent witness i.e. Page 21 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined neighbour at P.W. 3 at Exh.10 also declared hostile and has not supported the case of the prosecution and even the real brother of the deceased has also not supported the case. In fact, in the Accidental Death Entry No. 258 of 2008 recorded and posted in the station diary as Entry No. 18 of 2008, the concerned person has raised suspicion against present respondent and on the basis of that the investigation was already handed over to the investigating officer and the concenred investigating officer Mr. B.K. Solanki was unfortunately, passed away during the pendency of the trial and he could not depose before the Court and therefore the defence was unable to prove the contradiction or omission on record.
12. Under such circumstances now the present appeal is required to be decided.
13. So far as the first aspect is concerned, the consistent story of the prosecution is that the deceased was given mental and physical torture by husband on account of labour work done by the deceased that why Page 22 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined she was doing a labour work and on account of that there was quarrel between the husband and wife, meaning thereby that there was no any other reason and there was no cruelty as mentioned under Section 498(A) of the I.P.C. For ready reference, Sections 498(A), 306 and 107 of the I.P.C. read as under:-
"Section 498A-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.
Explanation.-- For the purpose of this section, "cruelty" means--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Section 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.
Section 107-Abetment of a thing.--
A person abets the doing of a thing, who-- (First)-- Instigates any person to do that thing; or Page 23 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined (Secondly)-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.-- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
14. On perusal of the above Sections, it appears that the ingredient of Section 498(A) is not satisfied in present case. Even the allegation that the respondent husband had given a stick blows to the deceased was also not supported by the other witnesses. Further, all the interested witnesses have also not supported the case of the prosecution and they have been declared as hostile.
15. Except this, the panch witnesses have also not supported the case of the prosecution and declared hostile. Now, remaining witnesses are doctor, police witnesses and the Deputy Executive Magistrate and from their evidences, the offence of abetment is not found to be trustworthy and genuine and therefore, ingredients of Sections 107 and 306 of I.P.C., are also not established in present case.
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16. Even, as per the story of the prosecution, the deceased was unable to give signature and therefore, the thumb impression of her leg was taken. In fact, that was also found incorrect and is completely contrary to the inquest panchnama as in the inquest panchnama, it is specifically mentioned that both the legs of the deceased were completely burnt upto the scene deep and therefore, it is absolutely impossible and improbable that thumb impression of leg of the deceased was obtained by the Investigating Officer or by the Deputy Executive Magistrate. Even, from the medical papers also that fact was not supported and therefore, the said piece of evidence is also creating serious doubt. Except this, there is no other allegation with regard to any harassment. On account of the household, if any quarrel is taken place between the husband and wife, it cannot be said to be cruelty as defined under Section 498(A) of I.P.C. and therefore, under such circumstances, the trial Court has Page 25 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined not committed any error while passing the impugned judgment and order of acquittal.
17. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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.
18. Further, 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. Further, while exercising the powers in Page 26 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined 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 whether the accused are connected with the commission of the crime with which he is charged.
19. The scope and principles are enunciated by the Page 27 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraph Nos. 42 and 43, which was subsequently re-affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph No. 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court.
20. It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and Page 28 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined observed in paras-20 and 21 as under:-
"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
"42. .... (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 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.Page 29 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024
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21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."
21. Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Therefore, the accused cannot be convicted on the evidence on record.
22. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges Page 30 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024 NEUTRAL CITATION R/CR.A/2388/2009 JUDGMENT DATED: 10/12/2024 undefined levelled against him. Even, on reappreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed.
23. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order of acquittal passed by the trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 31 of 31 Uploaded by SURESH SOLANKI(HC00208) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:10:47 IST 2024