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CR.A/1136/2003 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1136 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
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 ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
RAMAKANT
@ RAJUBHAI RAMKISHOR AVASTHI & 3 - Opponent(s)
=========================================
Appearance
:
MR AJ
DESAI ADDITIONAL PUBLIC
PROSECUTOR for Appellant(s) : 1,
MS VARSHA BRAHMB HATT FOR MS KJ
BRAHMBHATT for Opponent(s) : 1,
MSVARSHABRAHMBHATT for Opponent(s)
: 1,
NOTICE NOT RECD BACK for Opponent(s) : 2 -
4.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/02/2010
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 7.3.2003 passed by the learned Joint Judicial
Magistrate, First Class, Gandhinagar, in Criminal Case No.7793 of
1997, 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
accused No.1 is husband, accused No.2 is father-in-law, accused No.3
mother-in-law, accused No.4 sister-in-law of the complainant. As
per the case of the prosecution, during the period between 8.3.1995
and 5.12.1996, the accused harassed the complainant and they were
abusing by saying that her father is beggar . Also the accused
persons demanded dowry of Rs.15,000/- to Rs.20,000/-. The accused
continued their demand of dowry and therefore, on 5.12.1996, the
complainant had tried to burn her by pouring kerosene on herself, but
somehow, she had managed to save herself. Thereafter, she filed
compliant with the Mahila Police Station but later on, the said
dispute was settled between the complainant and accused persons.
Thereafter, the complainant started to live with accused persons i.e.
at her in-law’s house. After sometime, the demand of dowry was again
continued and physical and mental harassment was day by day
increased. The accused No.1 assaulted her with a razor. Initially,
the complaint was lodged before learned Metropolitan Magistrate and
the said case was handed over to the Sabarmati Police Station and
subsequently, the incident is pertaining to Adalaj Police Station,
therefore, case was handed over to the Adalaj Police Station.
Therefore, the offence under Section 498(A) and 114 of the Indian
Penal Code was registered against the accused persons.
2.2 Therefore,
a complaint with respect to the aforesaid offence was filed against
the respondents with the Adalaj Police Station which was registered
as M. Case No.19 of 1997. Necessary investigation was carried out and
statements of several witnesses were recorded. During the course of
investigation and, ultimately, chargesheet was filed against them
before the court of learned JMFC, Gandhinagar. The trial was
initiated against the respondents.
2.3 To
prove the case against the present accused, the prosecution has
examined, in all 11 witnesses and also produced 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 trial Judge acquitted the
respondents of all the charges leveled against them by judgment and
order dated 7.3.2003.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court the appellant State has preferred the
present appeal.
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
also contended that the learned Judge has not considered the evidence
of complainant in true manner. Even the letters, which were produced
on record at Exhibit 28 and 29, have not been considered by the
learned trial Court. Even other evidence of other witnesses have not
been believed by the learned trial Judge in true perspective. The
order passed by the learned trial Judge is erroneous and unjust,
therefore, same is required to be quashed and set aside.
4. 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
M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in
(2006)6 SCC, 39,
the Apex Court has narrated about 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:
54.
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
judgement of acquittal, the High Court should 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.
4.1 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
finding of acquittal recorded by the trial court.
4.2 Even
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 judgement
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.
4.3 It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement or to give
fresh reasonigns, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State
of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
wherein it is held as under:
&
This court
has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary
(1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the
appellate court when it agrees with the view of the trial court on
the evidence to repeat the narration of the evidence or to reiterate
the reasons given by the trial court expression of general agreement
with the reasons given by the Court the decision of which is under
appeal, will ordinarily suffice.
5. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned APP
for the appellant-State.
6. Originally
the case was filed against the respondents accused for the offence
punishable under Sections 498(A) and 114 of the Indian Penal Code.
The complaint was file not within a period, it was filed after four
months and from the perusal of the evidence led before learned trial
Judge, there is no any independent witness. It is also appeared from
the judgment and order that the complaint was lodged at very belated
stage and the complainant had any physical or mental harassment by
the accused persons, then she would have filed the complaint
immediately, but she had not done so and the complaint filed by her
after second thought, after coming to her parental house. The
witnesses, who were examined before the learned trial Court, are
interested and relatives of the complainant. Therefore, they are not
solely reliable and even the evidences did not inspire any
confidence. It also appears that there is vast contradiction amongst
the evidence led by the witnesses before the learned trial Court.
Today, even the learned APP is not in a position to say that the
learned Judge has committed any error in passing the order of
acquittal of the accused. Thus, from the evidence itself it is
established that the prosecution has not proved its case beyond
reasonable doubt.
7. Learned
APP is not in a position to show any evidence to take a contrary view
of the matter or that the approach of the trial court is vitiated by
some manifest illegality or that the decision is perverse or that the
trial court has ignored the material evidence on record.
8. 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.
9. 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.
10. 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. Hence the
appeal is hereby dismissed. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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