Gujarat High Court
The State Of Gujarat vs Kara Arshi Odedara & ... on 27 April, 2016
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/173/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 173 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
==========================================================
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 ?
==========================================================
THE STATE OF GUJARAT....Appellant(s)
Versus
KARA ARSHI ODEDARA & 2....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR RUTVIJ OZA, APP for the Appellant(s) No. 1
MR SUNIL C PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No.1-3
==========================================================
CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 27/04/2016
ORAL JUDGMENT
1. The present appeal, under Section 378 (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 10/12/2004 passed by the learned Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Apr 29 03:04:21 IST 2016 R/CR.A/173/2006 JUDGMENT Assistant Judge, Porbandar in Sessions Case No.74 of 1997, whereby, the learned trial judge has acquitted the original accused-the respondents herein, of the charges for the offences punishable under Sections 498(A), 306 and 114 of the Indian Penal Code.
2. The brief facts of the prosecution case are that the complainant Lakha Dudda filed his complaint at Kamalabag Police Station which was registered as CR No.I-27 of 1997. It is the case of the complainant that he had a son named Bhima who is married and residing separately at Vankaner. The complainant's daughter Devi was married with accused Kara Arshi Odedara before six years and she had two children. Deviben was residing with accused nos.1 to 3. It is the case of the complainant the he received a message through his brother-in-law Kanabhai Sajanbhai about death of Deviben, and therefore, he went to Porbandar with his wife. The complainant was informed by Karabhai Visabhai who was residing nearby accused no.1 Kara Arsi that Deviben was murdered by her in-laws. Therefore, complainant has filed the aforesaid complaint. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed and submitted the same before the Judicial Magistrate First Class, Porbandar and Criminal Case No.4039 of 1997 was registered. However, as the case being exclusively sessions triable, the same was committed before the Sessions Court, Porbandar as per Section 209 of the Code of Criminal Procedure where the case was registered as Sessions Case No.74 of 1997. The trial was initiated against the respondents.
Page 2 of 8
HC-NIC Page 2 of 8 Created On Fri Apr 29 03:04:21 IST 2016
R/CR.A/173/2006 JUDGMENT
3. To prove the case against the present accused, the prosecution has examined about six witnesses and also produced several documentary evidence.
4. At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned trial Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 10/12/2004.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court, the appellant- State has preferred the present appeal.
6. This Court has heard Mr.Rutvij Oza, learned APP and Mr. Sunil C. Patel, learned advocate for the respondents.
7. It is contended by learned APP that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned Judge has not properly appreciated oral as well as documentary Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Apr 29 03:04:21 IST 2016 R/CR.A/173/2006 JUDGMENT evidence and thereby committed error by acquitting respondent for the alleged offence under Section 498(A) and 306 of the Indian Penal Code which requires to be reversed as such and the accused are required to be convicted. Learned APP has reiterated the grounds urged in the appeal and has argued that though there was evidence on record, learned Trial Judge has recorded the findings contrary to the evidence on record. He has also contended that though the prosecution witnesses who are near relatives have supported the case of the prosecution, the learned Trial Court has acquitted the accused which is not in accordance with law and evidence on record and urged that present appeal be allowed and the judgment and order of acquittal be converted into conviction.
8. On the contrary, Mr. Sunil C. Patel, learned advocate for the respondents argued that there is no iota of evidence available on record to connect the respondents with the crime and he has supported the judgment of acquittal recorded by learned Assistant Judge. He has further contended that the learned Trial Judge has made elaborate analysis and scrutiny of evidence on record and the Trial Court has found that the evidence contains exaggeration and contradictions. Consequently therefore, the learned Trial Judge has rightly not believed the evidence on record. Mr. Patel, learned advocate has taken this Court through the entire record and submitted that the impugned judgment and order passed by the learned Judge is just and proper and it cannot be said that the learned Judge has committed any error in acquitting the accused, and therefore, the present appeal deserves to be dismissed.
Page 4 of 8
HC-NIC Page 4 of 8 Created On Fri Apr 29 03:04:21 IST 2016
R/CR.A/173/2006 JUDGMENT
9. On the day of incident, father of deceased, Lakha Dudda lodged FIR before the Police Sub Inspector, Kamalabag, Porbandar wherein he has narrated that his daughter Devi was married to Kara Arshi and she was residing along with her in-laws at village Chhaya of Porbandar and Devi had two sons. On the day of incident, his brother-in-law Kana Sajan informed him that Devi has been murdered. Therefore, he went to Porbandar. Kara Visa who was residing nearby her daughter and her son-in-law informed him that today in the morning, in-laws of Devi murdered Devi and dead body is lying in their house and they have burned Devi alive by poring kerosene over her. He has also narrated that during her married life, as she was subjected to cruelty by the respondents, she used to return to her parental home and after settling the issue, she was again sent to her matrimonial home for about three times and ultimately the accused have murdered her. Indisputably, during the course of investigation, it was found that she was not murdered by the respondents but she committed suicide and in consequence thereof, the respondents were charged with the offence punishable under Sections 498(A) and 306 and 114 of the Indian Penal Code.
10. This Court has gone through the record and proceedings of learned trial court and perused the record. PW-2- Lakha Dudda who is father of the deceased has not stated whatever he has stated in the complaint as regards commission of murder of Deviben by the respondents but he has narrated that Deviben was subjected to cruelty by the respondents due to which she returned to her parental home for three times and after settling the issue, she was again sent back to her Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Apr 29 03:04:21 IST 2016 R/CR.A/173/2006 JUDGMENT matrimonial home and he has admitted that whatever he has stated, he had come to know the said fact from Kara Visa. He has also admitted that Devi has never told about subjecting ill treatment by the respondents. On overall appreciation of the evidence, learned Trial Court has noted that there is lot of improvement and contradiction in the statement of PW-2 and in the FIR lodged by him. The contradictions and improvement as well as exaggeration made in the deposition are also brought on record. Not only that but initially upon receipt of information from his brother-in-law, he tried to implicate present respondents in the offence of murder and thereafter he has changed that deceased was subjected to cruelty by the respondents but no details of the same is given either in his deposition or in his complaint. PW-3, Sajanben Kara who happens to be aunt (Mami of deceased) was residing nearby deceased Devi and has deposed in her examination in chief that as she was residing nearby deceased Devi, she noticed that disputes were going on between them. She has also admitted that accused no.1 was away from his house and she came on the previous day of incident and never told anything regarding disputes which were going on between deceased Devi and her husband and in-laws. PW-4- Kana Sajan happened to be uncle (Mama of the deceased) has deposed that whenever respondent no.1 returned with his truck from outside, his mother and sister used to instigate him against Devi, due to which there was disputes amongst them and he used to intervene and settle the disputes and he has also deposed that Devi committed suicide due to ill treatment by the respondents. In his cross examination, he has admitted that he has never informed parents of Devi regarding the fact that Devi has been subjected with cruelty by the respondents.
Page 6 of 8
HC-NIC Page 6 of 8 Created On Fri Apr 29 03:04:21 IST 2016
R/CR.A/173/2006 JUDGMENT
11. On overall appreciation of evidence on record,
indisputably, there is no evidence in the nature of dying declaration. The evidence as narrated above of three near relatives are available on record. On scrutiny of their evidence, there appears no uniformity in their depositions and their depositions suffers from exaggerations, contradictions as well as if we read the same together, then the same are found in the nature of absolving the accused from the charges leveled against them.
12. In this view of the matter, learned Trial Court has rightly not put any reliance over the oral testimony of aforesaid witnesses and rightly recorded that the evidence of aforesaid witnesses are not sufficient to record any finding against the respondents for conviction. From the evidence of doctor who carried out autopsy as well as PW-6-Devayat Khimabhai, Investigating Officer, it appears that death of deceased turns out to be suicidal death and not culpable homicidal amounting to murder. Even FSL report clearly indicates that death of deceased is suicidal and not homicidal. Evidence on record also indicates that deceased Devi had a son aged about eight years. Therefore, marriage span was more than eight years. Therefore, learned Trial Court has also rightly not gone into presumption as provided under Section 113(A) of the Indian Evidence Act.
13. This Court has minutely perused the oral as well as documentary evidence available on record and has gone through the impugned judgment and order passed by the trial court and has also considered the submissions made by Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Apr 29 03:04:21 IST 2016 R/CR.A/173/2006 JUDGMENT learned APP for the appellant-State and learned advocate for the respondents.
14. In the above view of the matter, this Court is of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against her. This Court find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Present appeal is devoid of any merits and requires dismissal.
15. In the result, the present appeal is hereby dismissed. Record and Proceedings to be sent back to the trial Court, forthwith. Bail bond and bail, if any, stands cancelled. Surety also, if any given, stands discharged.
(R.P.DHOLARIA,J.) ila Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Apr 29 03:04:21 IST 2016