Gujarat High Court
State Of Gujarat vs Jayendrakumar @ Jayesh Palabhai & on 16 April, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/973/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 973 of 2003
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
JAYENDRAKUMAR @ JAYESH PALABHAI &
4....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
MR JM BUDDHBHATTI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
-4
UNSERVED-EXPIRED (N) for the Opponent(s)/Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 16/04/2015
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R/CR.A/973/2003 JUDGMENT
ORAL JUDGMENT
1. By way of this appeal, the appellant-State has challenged the judgment and order of the learned Additional Sessions Judge, Fast Track Court No.2, Jamnagar dated 23.04.2003 rendered in Sessions Case No.128 of 2002, whereby the learned Trial Judge acquitted the original accused- opponent herein of the charges for the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code (for short "IPC").
2. The brief facts of the prosecution case are that accused no.1 Jayendrakumar @ Jayesh Palabhai is the husband of the deceased, accused no.2 Palabhai Ghaanabhai is the father in law of the deceased, accused no.3 Jaykumar @ Jashu Palabhai and accused no.5 Dipak Palabhai @ D.P. are the brother in law of the deceased and accused no.4 Baluben w/o. Palabhai is the mother in law of the deceased. The further prosecution case is that the deceased was married to accused no.1 three years prior to the incident and she was residing Page 2 of 21 R/CR.A/973/2003 JUDGMENT with her husband along with others in a joint family. That five months prior to the incident, the son of the deceased died due to hysteria. Thereafter, the parents of the deceased took the deceased with them and the deceased was staying in her parental house. The accused including her husband did not come to her for taking her to her in-laws house. However, the accused sent message through her relative that they did not want her as she was very slow in her household work, she did not know household work and that her son expired due to hysteria. The accused thus committed mental torture and as she lost her son also, she committed suicide on 31.03.2002 by pouring kerosene on herself and setting herself on fire in the kitchen in her parental house. Thereafter, the deceased was taken in the G.G. Hospital, Jamnagar, where the police had recorded her complaint, and thereafter, she succumbed to the burn injuries. Thereafter, she died.
3. After completion of the investigation, the Page 3 of 21 R/CR.A/973/2003 JUDGMENT 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 learned Additional Sessions Judge, Fast Track Court No.2, Jamnagar, which was, thereafter, numbered as Sessions Case No.128 of 2002. 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 13 witnesses as well as the prosecution also produced 18 documentary evidences.
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 learned Additional Sessions Judge, Fast Track Court No.2, Page 4 of 21 R/CR.A/973/2003 JUDGMENT Jamnagar acquitted the accused of all the charges leveled against her. 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 ought to have believed the evidence of Gandhubha G. Sakariya - PSI, who had recorded the complaint of the deceased. The said witness has clearly stated that the complaint of the deceased was registered at the hospital, after making sure from the doctor, whether the patient was in a fit state of mind to give her statement and therefore, the complaint is at Exh:18. She further submitted that the learned Trial Judge ought to have believed the evidence of Dilipbhai P. Jani-Executive Magistrate, who had recorded the dying declaration of the Page 5 of 21 R/CR.A/973/2003 JUDGMENT deceased. The said witness has clearly stated that the dying declaration of the deceased was recorded at the hospital, after making sure from the doctor, whether the patient was in a fit state of mind to give dying declaration. She further submitted that it ought to have been appreciated that the deceased committed suicide within a period of seven years of her marriage and therefore, necessary presumption ought to have been drawn. She further submitted that the learned Trial Judge ought to have believed the D.D./complaint given by the deceased before she died and especially the further statement, wherein she stated that she had taken the step because of torture and harassment of the accused. She further submitted that the learned Trial Judge ought not to have acquitted the accused for offence with which they were charged. She further submitted that the learned Trial Judge ought to have taken into consideration medical evidence which supports the prosecution case. She further submitted that necessary Page 6 of 21 R/CR.A/973/2003 JUDGMENT 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, 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. Page 7 of 21
R/CR.A/973/2003 JUDGMENT
9. I have heard learned APP for the appellant- State and the learned advocate for the respondents-accused and perused the material on record.
10. As far as respondent no.5 is concerned, during the pendency of the appeal, he expired and his case stands abated qua him.
11. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals.
12. 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; Page 8 of 21
R/CR.A/973/2003 JUDGMENT "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."
13. Further, in the case of CHANDRAPPA VS. STATE OF KARNATAKA (2007 (4) S.C.C. 415), the Apex Court laid down the following principles;
"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 Page 9 of 21 R/CR.A/973/2003 JUDGMENT 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 on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
14. 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.
15. 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 Page 10 of 21 R/CR.A/973/2003 JUDGMENT 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 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."
16. 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.
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R/CR.A/973/2003 JUDGMENT
17. 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 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."
18. 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 Page 12 of 21 R/CR.A/973/2003 JUDGMENT 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 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]"
19. 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:Page 13 of 21
R/CR.A/973/2003 JUDGMENT (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."
20. 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."
21. I have gone through the judgment and order passed by the Trial Court. 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 Page 14 of 21 R/CR.A/973/2003 JUDGMENT 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 to the deceased. It cannot be said that she 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 have been named by the deceased in the complaint and the so-called complaint was also very specific that the accused were harassing her. The accused were harassing her time and again. 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. In the present case, no case is made out on the basis of the dying declaration. The learned Trial Court, while discussing the issue in Paragraphs-27 to 29 and Page 15 of 21 R/CR.A/973/2003 JUDGMENT on appreciation of evidence on record, has rightly acquitted the accused persons. 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 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 Page 16 of 21 R/CR.A/973/2003 JUDGMENT 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 respondent-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 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 Page 17 of 21 R/CR.A/973/2003 JUDGMENT 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 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 Page 18 of 21 R/CR.A/973/2003 JUDGMENT 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.
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 2002 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 Page 19 of 21 R/CR.A/973/2003 JUDGMENT 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 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 23.04.2003 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Page 20 of 21 R/CR.A/973/2003 JUDGMENT Trial Court, forthwith.
(K.J.THAKER, J) rakesh/ Page 21 of 21