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State vs The Present Acquittal

High Court Of Gujarat|28 June, 2012
The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378 Cr. P.C., against the Judgment and order dated 7.9.1994 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.92 of 1991. The said case was registered against the present respondents original accused for the offence under Sections 498-A, 306 and 114 of the Indian Penal Code.
According to the prosecution case, the complainant Meenaben, wife of the Ashokkumar Shankerlal Patel, lodged complaint that she is residing with her husband at Rampur (Old), Unjha. Her mother-in-law, Kantaben, is also residing with her. She is having one son and one daughter. On 15.2.1990, at 7:00 O'clock in the morning she and her mother-in-law were present in the house but her husband was not present during that time quarrel took place between Meenaben and her mother-in-law for house-hold work. Therefore, she poured kerosene on herself and her two months old son, Akash and ablaze. Ashokbhai, neighbour on seeing her burning came to her place and ceased the fire. Because of fire Meenaben and her son both were burnt. At that time, her husband came and took them in auto-rickshaw to the Government hospital of Unjha. The doctor of Government hospital of Unjha advised them to take patients to Ahmedabad Civil Hospital. While coming to Ahmedabad Civil Hospital son, Ashokbhai expired and on the next day of admission Meenaben also expired. Hence the complaint came to be lodged.
Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge-sheet came to be filed against them in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions.
Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons pleaded not guilty and claimed to be tried.
In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents - accused.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 7.9.1994 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.92 of 1991, the appellant - State has preferred the present appeal before this Court.
Heard Learned APP Ms.Jirga Jhaveri, appearing on behalf of the appellant - State. She has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.
She has contended that the learned Judge has failed to appreciate that there was mental as well as physical harassment to the deceased by the accused persons and therefore, the deceased was compelled to commit suicide by pouring kerosene on herself. She has contended that the learned Judge has failed to appreciate the fact that even doctor's evidence, postmortem note and deposition of other prosecution witnesses support the first version of the complainant and the deposition of the complainant also supported by the dying declaration.
She has contended that the learned Judge has failed to appreciate the dying declaration of the deceased. She has contended that the contents of dying declaration and complaint are proved beyond reasonable doubt, yet the learned Judge has failed to consider the same. Both the dying declarations are trustworthy, reliable and acceptable. She has contended that husband - accused No.2 is not before this Court. Looking to the role of the respondent No.1 and due to the harassment caused to the deceased in the form of instigation, provocation and abettor Meenaben committed suicide. Lastly, she has read observations of the learned Judge and contended that observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.
Notice is served to the other side. The respondent No.1 - Kantaben Shankerlal Patel, who is about 80 years old, is present before the Court. The respondent No.2 though served he is not present before the Court.
Heard party-in-person respondent No.1. She has contended that she is wrongly booked by the complainant. She has contended that due to provocation of relatives, who were present at the hospital, the complainant was tutored and her name is shown in the FIR. She has further contended that she is about 80 years old and unable to walk. She has prayed to dismiss the Appeal.
Heard learned APP for the appellant - State and party-in-person. In this case when the vardhi was received by the Police Head Constable from the P.S.O. from hospital he rushed to the hospital and verified location of the incident and complaint was registered. Thereafter yadi was sent to the Executive Magistrate and Executive Magistrate recorded the dying declaration. The police has carried out investigation and charge-sheet is filed against mother-in-law and husband. In the present case, the learned Judge has observed that dying declaration is not trustworthy, reliable and acceptable and he has assigned sound reasons in his judgment and present respondents are acquitted from the said offence.
I have perused oral evidence of the P.W. No.4 at Ex.29 Bhanuprasad Pursottamdas, Head Constable, who visited the hospital and recorded complaint. In the complaint time is not shown. Looking to the evidence of Police Head Constable, at around 9:00/10:00 hours he received written vardhi. I have verified the time of registration of offence which shows 10:00 O'clock. Time of offence is 7:00 a.m. Therefore, this P.W.No.4 has not disclosed time of the complaint recorded by him creates some doubt. I have perused evidence of the P.W. No.1 at Ex.15. So far as time is concerned, it is not disclosed by this witness but from the documentary evidence it appears that history of the patient was written by this doctor and in that case history it is not disclosed that what was the cause of the suicide. I have perused further cross-examination of this doctor, wherein he has admitted that at the time when the police came to the hospital, the relatives of the deceased were present and in their presence complaint was recorded. It is admitted by the Police Head Constable that at the time of his visit to the hospital prior to recording of the complaint, relatives of the deceased were present in the hospital. From the cross-examination of the Executive Magistrate and Police Head Constable prima-facie it is established on record that during recording of the statement of the deceased relatives of the deceased were present. This shows that both the dying declarations are not trustworthy, reliable and acceptable.
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 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."
Similar principle has been laid down by the Apex Court in the cases of State 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.
It is 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 with the reasons assigned by the trial Court acquitting the accused persons. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents - accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 7.9.1994 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.92 of 1991, acquitting the respondents - accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks Top
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