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State vs The Present Acquittal

High Court Of Gujarat|29 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 10.3.1995 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.105 of 1992. The said case was registered against the present respondent original accused for the offence under Sections 498-A, and 306 of the Indian Penal Code.
According to the prosecution case, Samuben, wife of Vishnubhai Takhaji, resident of Pratappur, Taluka : Kalol, on 11.12.1993 gave a complaint to the Constable of Ellisbridge Police Station, who was on duty at Vadilal Sarabhai Hospital. She stated that she is residing at Pratappur with her father-in-law Takhaji Keshaji, husband Vishnuji, mother-in-law Kasuben and sister-in-law Manekben. Her marriage took place before four years of the incident. On 11.12.1993, at around 9:30 the incident took place. Her husband - Vishnuji Takhaji often used to drink liquor and was not doing any work and after drinking liquor he used to beat Samuben. Samuben has no harassment from her mother-in-law, father-in-law and sister-in-law. On the day of incident her husband told her that why are you telling people that my husband is drinking liquor. On telling so, quarrel took place between the accused and the complainant. The complainant got angry and poured kerosene on herself and ablaze. Samuben committed suicide on 11.12.1993 because of mental and physical harassment meted out to her from her husband. 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 person was arrested and, ultimately, charge-sheet came to be filed against him 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 person, to which the accused person pleaded not guilty and claimed to be tried.
In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidence.
Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.
At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent - accused.
Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 10.3.1995 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.105 of 1992, 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 not properly appreciated deposition of the prosecution witnesses, Executive Magistrate and dying declaration. She has contended that looking to the evidence of the mother and father of the deceased prosecution has prima-facie proved before the learned Judge that due to abetment, provocation and instigation of the present respondent accused the deceased committed suicide. She has contended that looking to the provisions of Sections 107 and 108 of the Indian Penal Code the prosecution has proved beyond reasonable doubt that present respondent is abettor, provocator and instigator and he compelled the deceased to commit 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. Mr.Ekant Ahuja, learned advocate is appearing for Mr. K.R.Raval, on behalf of the respondent.
Mr.Ahuja has contended that looking to the postmortem report the deceased received 97% burn injuries and looking to the injuries of the deceased patient cannot speak anything due to burn injuries. He has contended that it was the duty of the prosecution to prove dying declaration and contents of the complaint beyond reasonable doubt. He has contended that mental and physical harassment to the deceased meted out by the respondent accused is not proved beyond reasonable doubt. He has prayed that no interference is required in the judgment and order passed by the learned Judge.
Heard learned advocates for both the parties. I have gone through the papers produced in the case. I have perused oral evidence of the prosecution witness, mother and father of the deceased. They have not disclosed anything regarding mental and physical harassment meted out to the deceased by the respondent - accused. I have perused contents of the dying declaration and complaint. It is true that prosecution has failed to prove dying declaration and complaint because at the time of recording of dying declaration and complaint the deceased was 97% burnt and was not physically and mentally fit. It is true that prima-facie role of the present respondent is not proved beyond reasonable doubt.
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. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent - 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 10.3.1995 rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.105 of 1992, acquitting the respondent - 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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