Gujarat High Court
State Of Gujarat vs Vinod Jayantilal Upadhyaya & ... on 10 November, 2014
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/758/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 758 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT....Appellant(s)
Versus
VINOD JAYANTILAL UPADHYAYA & 1....Opponent(s)/Respondent(s)
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Appearance:
MR HS SONI APP for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 10/11/2014
ORAL JUDGMENT
1. The present appeal, under section 378(1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 14.6.1999 passed by the learned Page 1 of 11 R/CR.A/758/1999 JUDGMENT Additional Sessions Judge, Jamnagar, in Sessions Case No.60 of 1998, whereby the accused persons have been acquitted of the charges leveled against them. Though served, but none appears on behalf of the respondents - accused.
2. The brief facts of the prosecution case are as under:
2.1 The deceased Sobhnaben, aged about 30 years, was staying with her husband and brothers-in-laws namely Sureshbhai and Vasantbhai at Digjam Woolen Mill, Gaytri Nagar, Street No.8, Jamnagar. The marriage of the deceased was solemnized with Maheshbhai Jayantilal Upadhyay before 10 years and they had no issue out of marriage life. The accused namely Vinodbhai and his wife Jyotiben as well as accused - Kishor were living near the house of the deceased.
The husband of the deceased was suffering from deceased of tuberculous. On 6.2.1998, at about 8:30 p.m., deceased Sobhnaben had closed the door of the house, at that time, her husband was outside and the accused Kishorbhai was also sitting at the outside of the house and deceased was going to sit with one Ranjanben and at that time, the deceased switch off the light of her house therefore, the said Kishorbhai told the deceased as to why switch off the light and the deceased said that she wanted to sit outside the house and therefore, she switched off the light. Therefore, said Kishorbhai got exited to her and gave two slept to her. As per the case of the prosecution, the deceased was mentally tortured by the accused persons and the accused by saying the deceased that you are Marathi, had beaten and mentally tortured. Therefore, the deceased on herself poured kerosene on her own and ablaze her with fire. Therefore, the accused persons gathered and took the deceased to the hospital for her burn injuries in Page 2 of 11 R/CR.A/758/1999 JUDGMENT rickshaw. The deceased was in the hospital, where the complaint was registered under Section 498(A) of the Indian Penal Code, alleging that the accused persons were torturing her mentally as well as physically under one or other pretext and therefore, she had tried to commit suicide by pouring kerosene on herself. Thereafter, the police had investigated into the matter and drawn panchnama of the place of the offence and even the cloths of the deceased at the time of committing suicide, was handed over to the police after drawing the panchnama. During the course of medical treatment, on 8.2.1998, the said Sobhnaben died and therefore, after inquest panchnama, the post mortum of deceased was carried out. Therefore, Investigating Officer had added Section 306 of the Indian Penal Code against the accused persons. The dying declaration was recorded by the Executive Magistrate and there was sufficient evidence against the accused, the charge-sheet was filed after arresting the accused persons. Thereafter, the case was committed to the Court of learned Sessions Judge and same was registered as Sessions Case No.60 of 1998.
2.3 To prove the case against the present accused, the prosecution has examined 9 witnesses and also produced documentary evidence. The statement under Section 313 of the accused was recorded.
2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned additional Sessions Judge acquitted the respondents of all the charges leveled against them by judgment and order dated 14.6.1999.
Page 3 of 11R/CR.A/758/1999 JUDGMENT 2.5 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the concerned trial Court, the appellant State has preferred the present appeal. The present Appeal was admitted and bailable warrant was issued in sum of Rs.300/- against each of the accused and same was served to them. Today, the matter is listed for final hearing.
3. It was contended by learned APP 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 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. He has read the charge at Exhibit 6 and submitted that it is transpired that the deceased committed suicide due to instigation, provocation and abetment on the part of the accused persons. Learned APP has drawn the attention of the documentary evidence like complaint at Exhibit 38, which is lodged by the deceased herself, when she was alive, wherein she alleged that the accused persons were harassing the deceased mentally and physically under one ground or other by saying her Marathi oftenly and said FIR was registered by the Investigating Officer. Even from the dying declaration recorded at Exhibit 21, wherein the deceased alleged against the accused persons about harassment caused to her and even the accused had beaten her and therefore, due to harassment, she poured kerosene on her to commit suicide. He also stated that the said dying declaration is recorded by the Executive Magistrate and Page 4 of 11 R/CR.A/758/1999 JUDGMENT not by the Police Officer. He, therefore, submitted that the ingredients of Section 107 and 108 regarding provocation, instigation, abetment are proved against the accused persons. He also submitted that the Investigating Officer has fully supported the version of the dying declaration. As per the evidence of P.W. 3, the allegations levelled against the accused persons are established and it transpires that the deceased was oftenly called as Marathi as she belonged to Maharashtrian and she had not spoken proper Gujarati and therefore, she told mixed language like Marathi as well as Gujarati. Even from the PM note, dying declaration, inquest panchnama, it transpires that the deceased committed suicide due to harassment on the part of the accused persons. As per his submission, from the oral evidence of P.W.1 Dr. Chetan Jani, who is Medical Officer, has carried out PM of the deceased and from his evidence, it transpires that the death of the deceased was due to burn injuries received by her. In the PM note, there are so many injuries on the body of the deceased due to burn. Learned APP further submitted that P.W. 2 Dr. Jiten Panchal stated in his oral evidence at Exhibit 17 that the deceased committed suicide by pouring kerosene on herself and thereby committed suicide. Even one social worker namely Kulsumben, P.W.4 was examined at Exhibit 24 and from her evidence, it is established that the deceased committed suicide and as per her evidence, the deceased was speaking Marathi language oftenly. Therefore, the contents of FIR as well as dying declaration are corroborated to the versions of the witnesses. He has drawn the attention to the oral evidence of the P.W.5 Mahesh Jayantilal, Exhibit 25, P.W.6 - Suresh Jayantilal, Exhibit 26, P.W.7 Dhirajlal Mohanlal, Exhibit 27, P.W.8 - Lilavatiben, Exhibit 32, P.W.9 Niranjan Dave, Exhibit 37 Page 5 of 11 R/CR.A/758/1999 JUDGMENT as well as documentary evidence and submitted that the learned Sessions Judge has not properly appreciated the evidence and therefore, judgment and order of acquittal is required to be quashed and set aside in the interest of justice and the accused persons are required to be convicted.
4. Perused the judgment and order as well as evidence produced on record and considered the submissions made by the learned APP for the appellant. I have noted that there are so many contradictions regarding versions of the witnesses and documentary evidence. It is true that the complaint at Exhibit 38 was given by the deceased herself and the dying declaration of the deceased was recorded by the Executive Magistrate at Exhibit 21, wherein she alleged about the harassment caused by the accused persons to her. From the evidence of of Medical Officers P.W. 1 and 2 and from the PM report, it prima facie appears that cause of death is purely due to suicidal injury. Here the question is what kind of harassment is caused by the accused persons and in what manner because it is here se allegations of mental and physical harassment caused to the deceased by the accused. From the bare reading of the complaint, the incident narrated is of only switch off the light in the house and the deceased was Marathi and on that basis, the accused persons tortured without any reason, is not supported by any cogent evidence. No doubt, the dying declaration is best piece of evidence and for that the manner and circumstances, in which same is recorded, is very necessary to prove the alleged offence against the accused. Mere statement is not enough to believe the case of the prosecution. In the case of burn injury, there may be defect of hearing or speaking due unfit condition of the patient. The deceased knew Marathi language and she could find hardship Page 6 of 11 R/CR.A/758/1999 JUDGMENT in speaking Gujarati language, but the complainant and dying declaration are recorded in Gujarati language. The allegations of the deceased that the accused were torturing by saying that "you (deceased) are Marathi oftenly" is not a base of any offence. The harassment or cruelty caused on the part of the accused is required to be proved by any supporting and material evidence by the prosecution. Even there is contradictory in the nature of the injuries caused to the deceased. From the overall evidence, the ingredients of any provocation, instigation and abetment are not proved as per Section 106 and 107 of the Indian Penal Code. As per the opinion of the Medical Officer, the mental position of the deceased was not very well and in such a situation, a person can do anything without any reason.
5. From the judgment and order of the learned Sessions Judge, it transpires from para 23, there are 9 issues are raised for consideration of the case which are as under:
"(1) Right leg including fingers and toe of the deceased was burnt with dermal - epidermal injury. It appeared that the impression of her right leg toe was taken in the Dying declaration along with curves and ridge; as the said impressions are unclear, the Dying declaration does not appear to be genuine, truthful and reliable.
(2) Such is not proved beyond doubt through evidences that her dictation of history before Dr Panchal, the Dying Declaration vide Ex - 21 before the Executive Magistrate Mr Diya and the statement of Ex - 38 in the form of FIR before PSI Page 7 of 11 R/CR.A/758/1999 JUDGMENT Mr Dave, were given by the deceased in the fit state of mind and medically fit condition, voluntarily, in the true and authentic manner. (3) As per the case history, it was found from the case papers of Ex - 18 and the evidences from Kulsumben that the deceased was already the patient of mental disease. Due to the operation performed for the gynecological problem, she was having difficulty in understanding and hearing.
Thus, the dying declaration dictated by the deceased in Ex - 21 and 38 being descriptive, graphic and coherent and she has dictated the same in such medically unfit condition, therefore, they do not appear to be true, independent and trustworthy.
(4) Keeping in view the evidence of Kulsumben, it is proved that the deceased has dictated the dying declaration in Gujarati and Marathi mix languages. Therefore, the dying declarations transpired in the submission of the Prosecution are not found having original version of the facts dictated by the deceased. Thus, these statements of the deceased are not completely represented by the said submissions.
(5) At the point of time of dying declarations vide Ex - 21 and 38, the deceased was asked many questions. But, all the said questions and replies are not found in the said submissions. Therefore, the said submissions do not appear to be such dying declarations which may be completely said to be of the deceased.
Page 8 of 11 R/CR.A/758/1999 JUDGMENT
(6) It is found that in the dying declaration :
the deceased has stated uncertain facts with regards to the presence of the accused no : 1 and later on he has been incorporated in Ex - 21. As a result, the dying declaration does not appear true or trustworthy.
(7) As the Prosecution has produced uncertain evidence with regards to the time of recording the dying declaration, the said declarations do not appear to be truthful, genuine, voluntary and reliable.
(8) Looking at the evidence of this case, the deceased has dictated different facts during different dying declarations, therefore the said declarations are not found consistent.
(9) Keeping in view the physical and mental condition of the deceased, such doubtful condition was found that the deceased was unable to listen to or understand the questions asked, it was found doubtful that her replies have been given in accordance with the questions, it is not proved indisputably that the said statements are rational."
6. In view of the above issues, I cannot find any perversity in the reasons assigned by the learned Sessions Judge, as the learned Sessions Judge has considered every aspects in detail and therefore, there is no reason to interfere with the judgment and order of acquittal.
7. It is pertinent to note here that in the case of suicide, the Page 9 of 11 R/CR.A/758/1999 JUDGMENT main aspects which compel the person to commit suicide are required to be looked into. Here in this case, nothing is proved by evidence that the accused persons were causing harassment to the deceased and mere allegations of harassment are levelled against them. Even the reason stated in the complaint for harassment is not supported by evidence and the reason is also not believable. In the present case, if there is such allegation, then the ingredients of Section 498(A) and 306 are required to be established to prove the case against the accused persons. Therefore, learned Sessions Judge has rightly acquitted the accused persons by assigned detailed reasoned order. Therefore, same is not required to be interfered by this Court. 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 finding of acquittal recorded by the trial court.
8. 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.
9. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them.
10. 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.
11. I am, therefore, in complete agreement with the findings, Page 10 of 11 R/CR.A/758/1999 JUDGMENT ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same.
12. In the result, this appeal is dismissed. The impugned judgment and order of acquittal dated 14.6.1999 passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 60 of 1998 is hereby confirmed. Bail bonds if any, stands cancelled. R & P to be sent back to the concerned trial court forthwith.
(Z.K.SAIYED, J.) YNVYAS Page 11 of 11