Gujarat High Court
State Of Gujarat vs T Koli Rameshbhai Devabhai & ... on 25 February, 2015
Author: K.J. Thaker
Bench: K.J.Thaker
R/CR.A/1536/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1536 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
T KOLI RAMESHBHAI DEVABHAI & 5....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI H BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
MR ASHISH M DAGLI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 -
6
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 25/02/2015
ORAL JUDGMENT
Page 1 of 17
R/CR.A/1536/2003 JUDGMENT
1. Heard learned Advocates appearing for the respective parties.
2. By way of this Appeal, the Appellant
- State has felt aggrieved by the judgment and order of acquittal dated 17.09.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Surendranagar in Sessions Case No.82/2002 whereby all the accused were acquitted of the offences punishable under Sections 498-A, 306 and 114 of the Indian Penal Code.
3. The brief case of the prosecution and the incident which occurred on 08.07.2002 is as under :-
Prabha - the daughter of the complainant was married with the accused No.1 - Ramesh for about four years prior to the date of the incident. Out of the said wedlock, there are two children. The accused No.2 and 4 are the younger brother-in-law and younger sister-in-law of the deceased respectively. The Page 2 of 17 R/CR.A/1536/2003 JUDGMENT accused No.3 and 5 are the father-in-law and mother-in-law of the deceased respectively. The accused No.6 is the elder sister-in-law of the deceased.
After marriage, Prabha started living with her in-laws in a joint family. It is alleged that all the accused used to harass the deceased on account of household work, they used to quarrel with her for petty things and also used to beat her. Further, there were also taunts made towards her bringing insufficient dowry. Fed up with this constant harassment, on the ill-fated day, the deceased committed suicide by pouring kerosene on her body and set herself on fire alongwith her two children.
On these facts, a complaint was filed and the police after due completion of the investigation, charge-sheeted the respondents for the aforesaid offences.
The accused pleaded not guilty to the Page 3 of 17 R/CR.A/1536/2003 JUDGMENT charges and claimed to be tried. Thereafter, the prosecution led evidence and on completion of the trial, the learned Additional Sessions Judge vide his judgment and order acquitted all the accused.
4. The prosecution had examined several witnesses and had relied on several oral and documentary evidences, some of them are :-
Particulars Exhibit Medical Officer - Dr. 14 Natwarbhai Rathod Complainant - Manjibhai 23 Satabhai Kuvarben, W/o. Manjibhai 25 Meghjibhai Savsibhai Makwana 26 Babulal Savsibhai Makwana 27 Lalitbhai Manjibhai Makwana 28 Rameshbhai Manjibhai Makwana 29 Sureshbhai Manjibhai Makwana 30 Punabhai Ramjibhai Makwana 31 Panchwitness Bijalbhai Devabhai 32 Dudhrejiya ASI Gangaram Amardas Solanki 35 Investigating Officer PSI 39 Page 4 of 17 R/CR.A/1536/2003 JUDGMENT 5. In the above background of facts,
learned Additional Public Prosecutor Ms. Monali H. Bhatt has submitted that the learned Judge ought to have believed the evidence of the complainant - Manjibhai at Exhibit 23 who has stated in his evidence that 20 days prior to the incident, the deceased had been to her parental home and at that time, she had told the complainant that she was suffering physical and mental torture at her matrimonial home. Further the evidence of mother of the deceased -
Kuvarben at Exhibit 25 ought to have been appreciated who had narrated the torture being meted out to her daughter (deceased). That the judgment of the learned Additional Sessions Judge is against the ingredients of Section 498-A of the Indian Penal Code and even on a conjoint reading of the complaint and the evidence, the offences under Section 498-A of the Indian Penal Code is made against all the accused. It is further submitted that the accused have abetted the death of the accused and the same is Page 5 of 17 R/CR.A/1536/2003 JUDGMENT clear from the post mortem note also. Hence, it is submitted that the judgment and order of the learned Additional Sessions Judge requires to be upturned by this Court.
6. Per contra, learned Advocate Mr. Ashish M. Dagli appearing for the respondents states that during this period of thirteen years, there is a further development that the parents of the deceased have settled the dispute. Besides, the learned Judge has by his well reasoned judgment and order acquitted all the accused and hence, no interference is called for in the said judgment by this Court.
7. 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. Before proceeding with the matter and before this Court goes to the factual scenario, Page 6 of 17 R/CR.A/1536/2003 JUDGMENT as it emerges before the Trial Court, it would be relevant to refer to the principles to hear an appeal against acquittal, which are time and again reiterated by the Apex Court. More particularly, in a recent judgment in the case of "S. Govindaraju v. State of Karnataka" reported in (2013) 15 SCC 315, wherein, the Apex Court held that it is a settled legal proposition that in exceptional circumstances, the appellate court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record, or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. The Apex Page 7 of 17 R/CR.A/1536/2003 JUDGMENT Court further held that while doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence.
8. Further, the Apex Court in Basappa v. State of Karnataka reported in (2014) 5 SCC 154, held that the reversal of a judgment of acquittal passed by a trial Court is permissible, only if the judgment of the trial Court is perverse and just because a different view is possible, as per the appellate Court, the findings of the trial Court should not be normally reversed.
9. In a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran & Anr. reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In paragraph 16 of the said decision, the Court has observed as under :-
Page 8 of 17R/CR.A/1536/2003 JUDGMENT "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."
10. Similar principle has been laid down by the Apex Court in the cases of State Page 9 of 17 R/CR.A/1536/2003 JUDGMENT of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
11. Even in a recent decision of the Apex Court in the case of Mookiah 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 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 Page 10 of 17 R/CR.A/1536/2003 JUDGMENT 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 re appreciate 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]."
12. It is a settled legal position that in an acquittal appeal, the Appellate Court is not required to re-write the Judgment or to give fresh reasonings when the Appellate Court is in agreement Page 11 of 17 R/CR.A/1536/2003 JUDGMENT with the reasons assigned by the trial Court acquitting the accused. On the touchstone of these judgments, the principles enunciated therein go to show that the finding of fact recorded in the said impugned judgment cannot be said to be perverse and this view is based on facts. The prosecution having failed to prove the main ingredients for bringing home the charges namely demand for dowry and inducement.
13. At this stage, it is necessary to reproduce Sections 498-A, 306 and 114 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 Page 12 of 17 R/CR.A/1536/2003 JUDGMENT with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
114. Abettor present when offence is committed. - Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
14. In the case of M.S. Narayana Menon @ Mani vs. State of Kerala & Anr reported in (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 :-
"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 Page 13 of 17 R/CR.A/1536/2003 JUDGMENT 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."
15. Having heard learned Advocates and perusing the record of the case, I am in complete agreement with the submissions made by the learned Additional Public Prosecutor Ms. Monali H. Bhatt that just because a settlement has been arrived at between the parties, the accused cannot be let off. However, I am unable to take a different view than that taken by the learned Additional Sessions Judge. On the touch of the aforesaid decisions, the following emerge :-
a) The prosecution has not proved that there was demand for dowry or harassment which would fall within the purview of Section 498(A) of the Indian Penal Code.
b) Even on facts, this Court is of the considered view that the death did not occur due to any mental harassment by the accused.Page 14 of 17
R/CR.A/1536/2003 JUDGMENT
16. I am supported in my view by the latest decision of the Apex Court in the case of Kuldeep Kaur v. State of Uttarakhand reported in (2014) 10 SCC 584 and in the case of Mangat Ram v. State of Haryana reported in 2014(0) GLHEL-SC 55154.
Relevant part of the judgment in the case of Kuldeep Kaur (supra) reads as under :-
"14. A perusal of the trial court judgment pertaining to the deceased's husband would show that PW1, father of the deceased, in his cross-examination stated that no dowry was demanded by the accused persons from the day of alliance till solemnisation of marriage. Whatever stridhan was given was as per the custom and as per his will in the form of gift to his daughter. He further stated that his daughter had not told him that in the absence of Upkar Singh she remained dejected in her matrimonial house because of her mother-in-law, father-in- law, sister-in-law and husband and elder brother-in-law on the issue of dowry. The witness Page 15 of 17 R/CR.A/1536/2003 JUDGMENT himself stated that only God knows why his daughter committed suicide without any reason. This witness has stated that it is true to say that neither the accused persons abetted his daughter to commit suicide nor did they harass her.
15. We have given our anxious consideration in the matter and analysed the evidence of the prosecution witness. In our considered opinion, the evidence adduced as against the appellant does not establish the case under Section 306 of the Penal Code. On the basis of evidence of the prosecution witnesses, conviction of the appellant only cannot be sustained. Having regard to the fact of the case and the evidence of the prosecution witnesses, the trial court acquitted all the accused persons except the present appellant and the said judgment was affirmed by the High Court. We do not find any strong reason to agree with the judgment of conviction passed by the trial court and affirmed by the High Court as against the appellant."
17. In the result, the judgment and order of acquittal dated 17.09.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Page 16 of 17 R/CR.A/1536/2003 JUDGMENT Surendranagar in Sessions Case No.82/2002 is confirmed.
18. Hence, this Appeal is devoid of merits and stands dismissed. Bail and bail bond, if any, stands cancelled. Record and proceedings, if any, be sent to the Trial Court forthwith.
Sd/-
(K.J. THAKER, J.) CAROLINE Page 17 of 17