Gujarat High Court
State Of Gujarat vs Talab Jaku ... on 18 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/30/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 30 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
================================================================
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 ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
TALAB JAKU BHOKAL....Opponent(s)/Respondent(s)
================================================================
Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 18/03/2015
ORAL JUDGMENT
Page 1 of 18
R/CR.A/30/2004 JUDGMENT
1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), is directed against the judgment and order of acquittal dated 26.09.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Jamnagar in Sessions Case No.215/2002, whereby the learned trial Judge acquitted the original accused-respondent herein, of the charges for the alleged offences.
2. The brief facts of the prosecution case are that the complainant-deceased Januben was married to the accused Talab Jaku Bhokal three years prior to the incident. She was staying with her husband in the house of one Mubarakbhai at Khambhaliya Railway Station Road, Khambhaliya separately six months prior to the incident. It is further case of the prosecution that out of the said wedlock, they have one son viz. Firoz. The accused was dealing in cloths and was going outside the village for selling the same. The accused doubted the character of the deceased. Page 2 of 18
R/CR.A/30/2004 JUDGMENT One day prior to the incident, the accused had beaten up the deceased and brought kerosene tin to burn the deceased. It is further case of the prosecution that on the day of the incident, in the morning, the accused quarreled with the deceased and went away for his business outside the village. The accused was, thus, in the habit of beating the deceased doubting her character and as the mental and physical harassment became unbearable, the deceased tried to commit suicide by pouring kerosene on herself and setting herself on fire. It is further case of the prosecution that, however, as she was not able to bare the pains of burning, she shouted and thereupon the neighbours and the police came there. Thereafter, she was taken to Khambhaliya Hospital where the police recorded her statement. During the treatment, she succumbed to the burn injuries. On these facts, the complaint being I- C.R.No.13/1993 was filed with Jamkhambhaliya Police Station for the alleged offences.
3. After completion of the investigation, the Page 3 of 18 R/CR.A/30/2004 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, Jamnagar, which was, thereafter, numbered as Sessions Case No.215 of 2002. Since the opponent- accused did not plead guilty and claimed to be tried, he was 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 9 witnesses as well as the prosecution also produced 7 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, Page 4 of 18 R/CR.A/30/2004 JUDGMENT Jamnagar acquitted the accused of all the charges leveled against him. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponent-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 judgment and order of the Trial Court is against the provisions of law; 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-accused. She further submitted that the learned Trial Judge ought to have believed the evidence of Executive Magistrate Anantray Jayshankar Dave, who was examined at Exh:19 and he has stated in his evidence that the doctor had made an endorsement Page 5 of 18 R/CR.A/30/2004 JUDGMENT that at the time of recording the dying declaration of the deceased, patient was in a fit state of mind to give her dying declaration and he has further stated that he complainant deceased herself had stated in her dying declaration that as the harassment being meted out to her at the hands of the accused became unbearable she tried to commit suicide and therefore, there is no reason to believe the evidence of this witness. She further submitted that the learned Trial Judge ought to have believed the evidence of Dr.Bhimshibhai Karshanbhai Karangiya, who was examined at Exh:22 and he has clearly stated in his evidence that after making endorsement regarding the fitness of the deceased complainant, the Executive Magistrate recorded the dying declaration of the deceased and the said endorsement is at Exh:21 which contains the signature of the doctor and the doctor has also identified his signature. She further submitted that the learned Trial Judge ought to have seen that the deceased complainant Page 6 of 18 R/CR.A/30/2004 JUDGMENT committed suicide within a period of three years of her marriage and therefore, the necessary presumption under Section 113(A) of the Evidence Act, ought to have been drawn. Learned APP has strenuously urged that the dying declaration speaks about the specific allegations against the present accused. There were mental harassment meted out to the deceased and that she had taken the extreme step of committing suicide. Learned APP has taken this Court through the evidence and submitted that the finding of fact regarding dying declaration is against the principle annunciated by the Apex Court and the recent decision of the Apex Court, wherein the Apex Court has held that the dying declaration is such on which reliance can be placed and conviction should be recorded. Learned APP has also taken this Court through the oral as well as the entire documentary evidence and submitted that the present appeal deserves to be allowed. The learned APP, further, submitted that the impugned judgment and order passed by the learned Trial Page 7 of 18 R/CR.A/30/2004 JUDGMENT Court is required to be quashed and set aside.
8. As against that, learned advocate for the opponent-accused supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. Hence, no interference is called for with the same at the hands of this Court. Therefore, the criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned Trial Court is required to be confirmed.
9. I have heard learned APP for the appellant- State and the learned advocate for the accused and perused the material on record with their assistance.
10. 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. Page 8 of 18
R/CR.A/30/2004 JUDGMENT 11. The principles which would govern and
regulate the hearing of an appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR, (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In Para-54 of the decision, the Apex Court has observed as under;
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
12. Further, in the case of CHANDRAPPA Vs. STATE OF KARNATAKA, reported in (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;Page 9 of 18
R/CR.A/30/2004 JUDGMENT [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
13. Thus, it is a settled principle that while exercising appellate powers, even if two reasonable views/conclusions are possible on the basis of the evidence on record, the appellate Page 10 of 18 R/CR.A/30/2004 JUDGMENT Court should not disturb the finding of acquittal recorded by the trial Court.
14. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR., reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
15. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS. RAM VEER SINGH & ORS., (2007 A.I.R. S.C.W. 5553) Page 11 of 18 R/CR.A/30/2004 JUDGMENT and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP, (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
16. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS., reported in (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."
17. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. BY THE INSPECTOR OF POLICE, TAMIL NADU, reported in (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:
Page 12 of 18
R/CR.A/30/2004 JUDGMENT "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC573]."
18. It is also a settled legal position that in acquittal appeals, the Appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY, (AIR Page 13 of 18 R/CR.A/30/2004 JUDGMENT 1981, SC 1417), wherein it is held as under;
"...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
19. In a recent decision, the Honble Apex Court in SHIVASHARANAPPA & ORS. VS. 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."
20. Thus, in case the Appellate Court agrees with the reasons and the opinion given by the Lower Court, then the discussion of evidence is not necessary.
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 Page 14 of 18 R/CR.A/30/2004 JUDGMENT evidence, it cannot be said that the provisions of Sections 498A and 306 of IPC can be attracted in the facts of this case. I do not find any infirmity in the order passed by the learned Trial Judge so as to interfere in this case. The judgment and order of acquittal passed by the learned Trial Judge is just and proper. The testimony of the prosecution witnesses do not establish that there was any harassment meted out to the deceased. 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. 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. In the case of Mangat Ram vs. State of Haryana, reported in (2014) 12 SCC 595, the Apex Court has defined the Page 15 of 18 R/CR.A/30/2004 JUDGMENT 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 498A and 306 of IPC, this Court cannot upturn the judgment of the Trial Court and taking into consideration all aspects of the matter, the prosecution has not succeeded in establishing the offences under Sections 498A and 306 of IPC against the accused. I am further supported in my view by the decision of the Apex Court in the case of Kuldeep Kaur v. 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 Page 16 of 18 R/CR.A/30/2004 JUDGMENT 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. Madan Mohan Lal Verma, reported in (2013 (14) SCC 153). Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
22. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the accused of the charges leveled against them. I 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. I am, therefore, in complete agreement with the findings, ultimate Page 17 of 18 R/CR.A/30/2004 JUDGMENT conclusion and the resultant order of acquittal recorded by the Court-below and hence find no reasons to interfere with the same.
23. In the result, the appeal fails and is dismissed. The judgment and order of the Trial Court dated 26.09.2003 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.
(K.J.THAKER, J) rakesh/ Page 18 of 18