The State Of Gujarat vs Ambalal Ramjibhai ... on 15 March, 2017

[Cites 8, Cited by 1]

Gujarat High Court

The State Of Gujarat vs Ambalal Ramjibhai ... on 15 March, 2017

Bench: A.G.Uraizee

                   R/CR.A/346/2007                                             JUDGMENT



                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                CRIMINAL APPEAL NO. 346 of 2007



         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MR.JUSTICE A.G.URAIZEE
         ================================================================
         1     Whether Reporters of Local Papers may be allowed                           No
               to see the judgment ?

         2     To be referred to the Reporter or not ?                                    No

         3     Whether their Lordships wish to see the fair copy of                       No
               the judgment ?

         4     Whether this case involves a substantial question of                       No
               law as to the interpretation of the Constitution of
               India or any order made thereunder ?

         ================================================================
                                    THE STATE OF GUJARAT....Appellant(s)
                                                      Versus
                          AMBALAL RAMJIBHAI HARIJAN....Opponent(s)/Respondent(s)
         ==============================================================================
         Appearance:
         MR KL PANDYA, APP for the Appellant(s) No. 1
         MR Y J PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
         ================================================================
             CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

                                        Date : 15/03/2017
                                       ORAL JUDGMENT

1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 12.12.2006 passed by the learned Additional Sessions Judge, Fast Track Court No.10, Morbi, in Sessions Case No.19 of Page 1 of 10 HC-NIC Page 1 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT 2000, whereby the accused have been acquitted from the charges leveled against them.

2. The brief facts of the prosecution case are as under: 2.1 The deceased complainant Jayaben was the wife of accused No.1. In the present case, accused No.1 had illicit relation with accused No.2 and accused No.3 and deceased Jayaben doubted that her husband went to the house of accused No.2 and accused No.3. And because of that complaint was quarreled with accused persons in the morning. And therefore, on 01.07.1999, at about 14.00 hours, accused No.1 quarreled with deceased complainant Jayaben and caused injuries to her and induced to deceased to commit suicide, therefore, by pouring kerosene on her body and get herself burnt and committed suicide, and thereby, the accused person abetted in committing suicide. Therefore, complaint was lodged at Morbi City Police Station, Rajkot for the offence punishable under Sections 498(a), 306, 323 and 114 of the Indian Penal Code.

2.2.After completion of the investigation charge sheet was filed against accused before Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT JMFC, Morbi. However, as the case was triable, by the Sessions Court. Therefore, learned JMFC, Morbi, committed the said case to the sessions court as per the provisions of 209 of Criminal Procedure Code. Thereafter, charge was framed against the accused for the offences punishable under Section 498(a), 306 and 323 of Indian Penal code. The accused pleaded not guilty to the charges and claimed to be tried.

2.3.To prove the case against the present accused, the prosecution has examined, in all witnesses and also produced several documentary evidence.

2.4.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 Sessions Judge acquitted the respondent of all the charges leveled against him by judgment and order dated 12.12.2006.

3. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT preferred the present appeal.

4. It is submitted by learned APP that the judgment and order of the Sessions Court is against the provisions of law; the Sessions 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 the whole ingredients of the evidence against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence.

5. The prosecution has examined Maganbhai Amrishbhai Surani, Deputy Collector at Exh.20, who has recorded the Dying Declaration of the deceasedJayaben, which was produced at Exh.22. In the Dying Declaration, she has very specifically stated that she had quarreled with accused persons in morning, therefore, on 01.07.1999, at about 14.00 hours, accused No.1 quarreled with her and caused injuries to her and then after, accused No.1 went out by saying I brought your parent. Because of that, she has taken extreme steps of pouring kerosene on herself and committing suicide. The Dying declaration at Exh.22 is very Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT important piece of evidence, wherein she has very specifically stated that the cause of taking extreme steps was taken because of illicit relation of her husband, accused No.1 with accused No.2 and accused No.3.

6. The learned Judge ought to have appreciate the scene of panchnama, which was produced at Exh.24, inquest panchnama, which was produced at Exh.25 and Dying Declaration, which was produced at Exh.22, in light of the evidence of the Investigating Officer by whom those documents have been proved. However, as the Learned Judge has not properly appreciated this aspect of the matter, the impugned judgment and order passed by the learned judge being contrary to the evidence available on the record of the case and the same deserves to be quashed and set aside by this Court.

7. The prosecution has examined PW2 Kishanbhai Ambalal, son of the deceased complainant Jayaben and accused No.1, was examined at Exh.12. However, he has turned hostile to the case of the prosecution.

8. It comes out that the accused persons Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT caused mental and physical harassment to the deceased, and therefore, deceased committed suicide and died. She further submitted that the dying declaration is proved by the prosecution, and therefore, it can be said that the prosecution proved the case against the accused, but, the trial Court has not properly appreciated the evidence on record and wrongly acquitted the accused, and therefore, by way of this Appeal, she prayed to allow the appeal by quashing and setting aside the judgment and order of the trial Court.

9. I have perused the record and considered the submissions made by the parties. From the evidence of this witness, there are so many contradictions and are not corroborated with the documents. From the record of the case, it appears that due to strained relation between the accused No.1 and the deceased, the deceased set her at fire and it is not at all established that the accused No.1 or other accused persons instigated her to commit suicide. Therefore, the aspects of instigation or provocation or any kind of abetment on the part of the accused are not established Page 6 of 10 HC-NIC Page 6 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT against the accused persons, and therefore, the prosecution miserably failed to prove the case against the accused persons. Even the ingredients under Section 498(A) and 306 of the Indian Penal Code are not attracted to the case of the accused. Therefore, the learned trial Judge has rightly acquitted the accused from the charges levelled against him.

10. At the outset it is required to be noted that 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 a catena of decisions. In the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 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, 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.



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HC-NIC                               Page 7 of 10     Created On Mon Aug 14 10:53:49 IST 2017
                R/CR.A/346/2007                                            JUDGMENT

[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."

11. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal recorded by the trial court.

12. Upon perusal of the evidence, ocular and documentary, adduced by the prosecution, it appears that P.W.2Kishanbhai Ambalal who happens to be son of the deceased and Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT respondent herein has not supported the prosecution case. It emerges from his evidence that the deceased had told him that she got fire as she fell down due to convulsion. The information Exh.13 in respect of the incident was recorded in the hospital at the instance of deceased herself wherein she stated that she had taken an extreme step of setting herself blaze on account of the giddiness and ill treatment by her husband i.e. the respondent herein. This allegation made in the complaint is at variance with the Exh.22 Dying Declaration that she had quarrel with Baluben and Tulsiben who were the neighbors, and therefore, she was reprimanded and beaten by the respondent herein, and she therefore, set herself blaze. It is very clear from the complaint Exh.13 and Dying Declaration Exh.22, except thus, complaint Exhibit13 and Dying Declaration Exhibit22, there is no evidence to show that the deceased was subjected to such cruelty and ill treatment by the respondent as would compel the deceased and her life.

13. In view of the variance and contradiction between the Exh.13 complaint and Exh.22 Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 14 10:53:49 IST 2017 R/CR.A/346/2007 JUDGMENT Dying Declaration, I am of the opinion, that the respondent cannot be convicted on the basis of Exh.22 Dying Declaration.

14. The learned trial Judge has recorded cogent reasons for acquitting the respondent.

15. I am, 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.

16. For the foregoing reasons, the present appeal is hereby dismissed.

17. Record and proceedings is ordered to be sent back to trial Court, forthwith.

(A.G.URAIZEE,J) Manoj Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 14 10:53:49 IST 2017

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