Gujarat High Court
State vs Ramilaben on 30 July, 2010
Author: A.M.Kapadia
Bench: A.M.Kapadia
Gujarat High Court Case Information System
Print
CR.MA/1870/2010 5/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1870 of 2010
In
CRIMINAL
APPEAL No. 337 of 2010
=========================================
STATE
OF GUJARAT
Versus
RAMILABEN
BHARATBHAI RAMSINGBHAI KOLI PATEL
=========================================
Appearance :
MR
LB DABHI APP for
Applicant
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 30/07/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) 1 By means of filing this Application under Section 378 (1)(3)of the Code of Criminal Procedure ( the Code for short), the Applicant State of Gujarat has prayed to grant leave to file Criminal Appeal No. 337 of 2010, which is directed against the judgment and order dated 15.09.2009, rendered in Sessions Case No. 52 of 2008, by the learned Second Additional Sessions Judge, Dahod, acquitting the Respondent accused of the offences punishable under Section 306 of the Indian Penal Code( IPC for short).
2 The prosecution case as unfolded in the FIR and during trial was that:
2.1 Deceased Bharatbhai married respondent accused Ramilaben before five years from the date of the incident. It is the prosecution case that the matrimonial life between them was not happy and the respondent accused, being wife of the deceased Bharatbhai, used to quarrel with her husband Bharatbhai and the deceased was meted out with mental torture by his wife accused-Ramilaben. It is alleged that the respondent - accused on and often used to visit and stay at her parental house without informing her husband deceased-Bharatbhai. On 7.2.2008 deceased Bharatbhai came to his home and dispute took place between him and the accused regarding financial assistance. On next day, both, accused Ramilaben as well as her husband deceased-Bharatbhai went to Baroda(2) where parents of accused were residing. After they reached to the house of the parents of the accused, deceased Bharatbhai went to the outskirts of said village in a forest and his dead body was found hanging on a tree. The unnatural death of Bharatbhai was reported to the police by his father PW-1 Ramsingbhai Jitabhai Koli. Police initially commenced inquiry regarding accidental death,qua, the deceased. After collecting the required preliminary material, investigating Police Officer PW-6 D.A. Parmar, lodged the FIR against the respondent accused and his FIR was registered. He himself conducted the investigation and during the course of investigation, statements of material witnesses were recorded and necessary panchnamas were drawn in presence of panchas. Postmortem report of the deceased was collected. Accused came to be arrested.
After the police collected required material for the purpose of lodgment of charge sheet, charge-sheet came to be filed in the court of learned Judicial Magistrate, First Class, Limkheda. Since the offence punishable under Section 306 of the IPC is exclusively triable by the Court of Sessions, learned JMFC, committed the case to the Court of Sessions, Dahod, which was registered as Sessions Case No. 52 of 2008, and the same was made over to the Court of learned Second Additional Sessions Judge, Dahod ( the `Trial Court' for short) for trial.
2.3 The Trial Court framed charge against the accused, to which she did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced oral and documentary evidence. Prosecution examined seven witnesses and also produced seven documentary evidence, detailed in the paragraph-4 in the impugned judgment and order. After the prosecution concluded its oral evidence, the learned Trial Court recorded the further statement of the respondent accused under Section 313 of the Code and the accused in her further statement, denied generally all the incriminating circumstances put to her by the Trial Court and stated that she was falsely implicated in this case. After appreciating, analyzing and scrutinizing the evidence on record and considering the submissions made on behalf of both the sides, the Trial Court came to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt and recorded the acquittal of the respondent accused.
3 We have considered the submissions advanced by Mr. R.C. Kodekar, learned APP for the Applicant State of Gujarat, we have perused the impugned judgment and order and the set of evidence supplied by him during the course of his submission so also the record and proceedings of the Sessions Case No. 52 of 2008, which was called for by us vide order dated 8.7.2010.
4 We have given our thoughtful consideration to the impugned judgment and order rendered by the Trial Court as well as we have perused the evidence adduced by the prosecution. Considering the evidence on record, first of all, it clearly transpires that, father of the deceased PW-1 Ramsinghbhai Jitabhai Koli, informed the police that the dead body of his son Bharatbhai was found in the forest, the said information supplied by him to the police, was not recorded and registered as FIR. Upon the information furnished by PW-1 Ramsinghbhai Jitabhai Koli, PW-6 Police Officer D.A. Parmar conducted the inquiry and during the course of inquiry, recorded statements of the witnesses and collected certain documents like postmortem report, etc and ultimately PW-6 Police Officer - D.A. Parmar, on behalf of the State, lodged the FIR against the respondent accused. The said FIR came to be registered. After the lodgment of the FIR, he himself took over the investigation of the offence. Under such circumstances, the Police Officer, who himself lodged the FIR, conducted the investigation of the offence.
4.1 We have considered the evidence of father of the deceased PW-1 Ramsingbhai Jitabhai Koli, brother of the deceased PW-2 Varsing Ramsingbhai Koli, sister of the deceased- PW-3 Dholiben Ramsingbhai Koli and mother of the deceased PW-4 Maniben Ramsingbhai Koli. Considering their evidence, the only thing which emerges is that the deceased, who was husband of the accused, used to do labour work. On account of labour work for considerable long time, he had to go out of his village. During his absence, the accused used to go to her parents house. It is further pertinent to note that on 7.2.2008 after doing labour work for a pretty long time, deceased Bharatbhai returned to his home. It is alleged that during evening hours, there was a quarrel about financial assistance between the spouses. However, as emerged from the evidence, next day i.e. on 8.2.2008, both, the deceased Bharatbhai and his wife the respondent accused went together to the parental house of the respondent accused. However, they reached to the house of her parents and thereafter, according to the prosecution case, the dead body was found hanging on a tree in a forest, which is outskirts of the village. Moreover, the Trial Court found material contradictions, omissions and improvements in the evidence of parents, brother and sister of the deceased. Ultimately, the Trial Court came to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt and recorded the acquittal of the respondent accused.
5So far as the abatement made by the accused to the deceased to commit suicide is concerned, according to us, there is no evidence. It is a settled legal provision of law that for bringing home the charge under Section 306 of IPC, there must be some evidence adduced on record showing that soon before the incident there was some harassment and torture to the deceased at the hands of the accused. Section 107 of IPC is with regard to the abetment and as per the provisions of this section, there must be some evidence that soon before the incident there must be some incident due to which he was prompted, instigated or abetted to commit suicide.
6 So far as the reported decision laying down the proposition of law on the question of abatement to commit suicide is concerned, they are legion. However, we would not make a reference to all of them with a view to avoid the repetition and to burden this order. Some of the reported recent decisions are as under:
(i) In case of SUSHIL KUMAR SHARMA vs. UNION OF INDIA, reported in 2005 AIR SCW p.3569, the Supreme Court makes it very abundantly clear that mere harassment or cruelty by the husband or his relatives would not constitute an offence of abetting the commission of suicide. Supreme Court in four lines has explained the correct position of law very succinctly. The relevant paragraph is reproduced herein below :
Basic difference between the two Sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide while under the former provision suicide is abetted and intended.
In the instant case, the prosecution at best can argue that whatever has been said by each of the witnesses so far as the harassment meted towards the deceased is concerned dragged the deceased to commit suicide but there is not an iota of evidence to even remotely suggest that the accused ever intended the consequences of the act or she abetted the commission of suicide.
(ii) In SWAMY PRAHALADDAS vs STATE OF M.P. & Anr.
Reported in 1995 Supp.(3) SCC p.438, the appellant was charged for an offence under Section 306, IPC on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. The Supreme Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima-facie enough to instigate the deceased to commit suicide.
(iii) In MAHENDRASINH vs. STATE OF M.P., reported in 1995 Supp. (3) SCC p.731, the appellant was charged for an offence under Section 306 IPC mainly based upon the dying declaration of the deceased, which reads as under:-
My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning.
The Supreme Court, considering the definition of 'abetment' under Section 107 IPC found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. The Supreme Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
(iv) In RAMESH KUMAR VS. STATE OF CHHATTISGARH reported in (2001) 9 SCC p.618, the Supreme Court while considering the charge framed and the conviction for an offence under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire, acquitting the accused the Supreme Court said :-
A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.
(v) In Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh , 2002 AIR SCW 2035 (SC), the Supreme Court in para 13 has observed as under :-
Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the word uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.
7 The principle of law which has been explained in each of the above referred judgments of the Supreme Court is that before a person can be held guilty for abetting the commission of suicide, the prosecution must establish by cogent, convincing and overwhelming evidence that the accused intended the consequences of the act namely suicide and abetted the suicide within the meaning of Section 107 of IPC. Mere harassment or cruelty which drags any person to commit suicide is not sufficient to constitute the offence under Section 306 of IPC.
8 Applying the principle laid down by the Supreme Court in above referred to judgments to the facts of instant case, we are of the considered opinion that mere allegations which are general in nature with regard to the deceased was subjected to mental and physical cruelty at the hands of the accused, offence under Section 306 cannot be proved.
9 On overall view of the matter, according to us, the prosecution has not been able to bring home the charge levelled against the accused person and the complicity of the accused for the commission of the offence is not established as there is no cogent and convincing evidence against the accused person to connect her with the alleged crime.
10. In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality or infirmity has been committed by the Trial Court in acquitting the accused persons of the offences with which he was charged. We find ourselves in complete agreement with the ultimate conclusion and the resultant order of acquittal, as, in our view, no other conclusion was possible except the one reached by the Trial court.
11. This is an acquittal appeal. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been very succinctly explained by the Supreme Court in the matter of AJIT SAVANT MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997 p.3255.
(a) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(b) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(c) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
(d) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.
(e) If the High Court, on a fresh scrutiny and reappraised of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(f) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(g) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
12 In ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992 SC p.598, Supreme Court has held that in an appeal against acquittal, the High Court should attach greater weight to appreciation of evidence by the Trial Judge who had the occasion to watch the demeanour of the witnesses.
13 It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
14 On overall appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the trial Court for acquitting the respondent-accused. Suffice it to say that the trial Court has given cogent and convincing reasons for acquitting the respondent-accused and the learned A.P.P. has failed to dislodge the reasons given by the trial Court and convince this Court to take a view contrary to the one taken by the trial Court.
15 Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the respondent-accused of the offences with which she was charged.
16 For the foregoing reasons, the application fails and accordingly it is rejected. Resultantly, leave to appeal is refused, and as a consequence thereof, Criminal Appeal No. 337 of 2010 is dismissed.
(A.M.KAPADIA, J.) (J.C.UPADHYAYA, J.) pnnair Top