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CR.MA/1118/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1118 of 2010
In
CRIMINAL
APPEAL No. 208 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
RAVAT
PAPPUBHAI KANUBHAI - Opponent(s)
=========================================================
Appearance
:
MR
LB DABHI, APP for Applicant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 26/07/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
By
means of filing this Application under Section 378 (1)(3) of the
Code of Criminal Procedure, the applicant State of Gujarat has
prayed to grant leave to file Criminal Appeal No.208/2010, which is
directed against the judgment and order dated 26th
October 2009 rendered in Sessions Case No.156 of 2008 by the learned
Additional Sessions Judge, 3rd Fast Track Court, Mehsana
camp at Visnagar, by which the opponent accused came to be
acquitted of the offences punishable under Sections 498(A) and 306
of the Indian Penal Code.
The
prosecution case as disclosed in the FIR and unfolded during trial
was that;
2.1 Deceased
Dakhuben, daughter of first informant Gangadevi Fulsinh married the
opponent-accused Ravat Pappubhai Kanubhai before about 9 to 10 years
from the date of the incident.
2.2
It is the case of the prosecution that on 20th April
2008, Dakhuben informed the first informant Gangadevi who happen to
be her mother on telephone that she was beaten by her husband, the
opponent-accused and she requested her mother to take her away from
the house of the opponent-accused or else she would be killed.
2.3
It is the case of the prosecution that at about 2 am in the night on
21st April 2008, father of the opponent-accused, along
with three to four other persons, came to the house of the first
informant Gangadevi and informed her that her daughter deceased
Dakhuben was sick and she was admitted in hospital and she was
requested to come to the hospital. Gangadevi refused to go to
hospital but informed her son Pratapsinh (brother of deceased
Dakhuben) about the sickness of Dakhuben and requested her son
Pratapsinh to go to the hospital but Pratapsinh refused to go to the
hospital.
2.4
It is the case of the prosecution that on 22nd April 2008
the first informant Gangadevi was informed that her daughter
Dakhuben had died. Thereupon on 22nd April 2008 the first
informant Gangadevi reported the incident to Unja Police and her FIR
was registered.
2.5
During the course of investigation, statements of material witnesses
were recorded, relevant documents like postmortem report, etc. came
to be recovered, necessary panchnamas were drawn in presence of
panchas and after the police concluded its investigation,
charge-sheet came to be filed in the Court of learned Judicial
Magistrate, First Class, Mehsana. But, since the offence punishable
under Section 306 of the IPC is exclusively triable by the Court of
Sessions, the learned Magistrate committed the case to the Sessions
Court at Mehsana, which was registered as Sessiosn Case No.156/2008
and the same was made over to the Court of learned Additional
Sessions Judge, 3rd Fast Track Court, Mehsana camp at
Visnagar for trial.
2.6
The trial Court framed charge against the opponent-accused to which
he did not plead guilty and claimed to be tried. Thereupon the
prosecution examined nine witnesses and produced seventeen documents
detailed in paragraph 5 of the impugned judgment and order rendered
by the trial Court. After appreciating the evidence on record and
the submissions made on behalf of both the sides, the trial Court
came to the conclusion that the prosecution failed to prove its case
beyond any reasonable doubt against the opponent-accused and
recorded the acquittal.
We
have considered the submissions advanced by Mr. L.B.Dabhi, learned
APP for the applicant State of Gujarat, we have perused the
impugned judgment and order, the set of evidence supplied by him
during the course of his submission and so also the records and
proceedings of Sessions Case No.156/2008 called for by us from the
trial Court vide order dated 5th July 2010. This Court
has also undertaken a complete and comprehensive appreciation of all
vital features of the case and the entire evidence on record with
reference to broad and reasonable probabilities of the case.
We
have given our thoughtful consideration to the impugned judgment and
order rendered by the trial Court and the evidence adduced by the
prosecution as revealed from the record of the case. There is no
dispute that the marriage span between the deceased and the
opponent-accused was approximately of about 9 to 10 years. The trial
Court elaborately dealt with the evidence of first informant PW2
Gangadevi Fulsinh examined at Exh.15 who happen to be the mother of
the deceased Dakhuben and the trial Court observed that barring the
only instance reporting alleged ill-treatment meted out to Dakhuben
by the opponent-accused, throughout the married life of Dakhuben she
never complained anything against her husband to her mother
Gangadevi. The trial Court further observed that even the conduct of
first informant Gangadevi was doubtful in the sense that, according
to her despite the fact
that she was informed that her daughter was sick and was admitted in
hospital, she did not go to the hospital to meet her daughter till
her daughter expired. It was further revealed from her evidence that
even after she received the message of death of her daughter, she
did not go to the village where her daughter was residing with the
opponent-accused. The dead body of Dakhuben was brought to the
village where the first informant Gangadevi was residing in
Rajasthan. Thereafter, the FIR came to be filed.
Scrutinizing
the evidence of PW3 Pratapsinh Fulsinh examined at Exh.17 who happen
to be the brother of the deceased, the trial Court observed that his
evidence is mere hearsay evidence because he was informed about the
alleged cruelty meted out to his sister Dakhuben through his mother
Gangadevi. Moreover, Pratapsinh in his evidence nowhere stated that
independently to the information which he received from his mother,
he had the knowledge about any cruelty or ill-treatment meted out to
his sister by her husband. Postmortem report reveals that the death
was due to hanging but the first informant Gangadevi alleged that
because of beating by the opponent-accused her daughter Dakhuben
died. The medical evidence also reveals that there were no marks of
any injury on the body of the deceased. The trial Court further
observed that neither the offence punishable under Section 498A of
the IPC came to be proved against the opponent-accused nor the
offence punishable under Section 306 of the IPC was established
against the accused and, therefore, there was no reason whatsoever
to apply the statutory presumption contained under Section 113(A) of
the Evidence Act.
Over
and above this, the matrimonial span of the deceased with her
husband was approximately 9 to 10 years i.e. more than 7 years.
Thus, considering the impugned judgment and order rendered by the
trial Court and the reasoning assigned by the trial Court while
recording acquittal of the opponent-accused, we are of the
considered opinion that the trial Court did not commit any
illegality or any irregularity in recording acquittal of the
opponent-accused.
On
overall view of the matter, according to us, the prosecution has not
been able to bring home the charge levelled against the
opponent-accused and his complicity cannot be said to have been
established.
This
is an acquittal appeal. The principles which would govern and
regulate the hearing of appeal by the High Court against an order of
acquittal passed by the Trial Court have been very succinctly
explained by the Supreme Court in the matter of AJIT SAVANT
MAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997
p.3255.
(a)
In an appeal against an order of acquittal, the High Court possesses
all the powers, and nothing less than the powers it possesses while
hearing an appeal against an order of conviction.
(b)
The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings
in place of the findings recorded by trial court, if the said
findings are against the weight of the evidence on record, or in
other words, perverse.
(c)
Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based and
to record its own reasons for not accepting those grounds not
subscribing to the view expressed by the trial Court that the
accused is entitled to acquittal.
(d)
In reversing the finding of acquittal, the High Court has to keep in
view the fact that the presumption of innocence is still available
in favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the
trial Court.
(e)
If the High Court, on a fresh scrutiny and reappraised of the
evidence and other material on record, is of the opinion that there
is another view which can be reasonably taken, then the view which
favours the accused should be adopted.
(f)
The High Court has also to keep in mind that the trial Court had the
advantage of looking at the demeanour of witnesses and observing
their conduct in the Court, especially in the witness box.
(g)
The High Court has also to keep in mind that even at that stage, the
accused was entitled to benefit of doubt. The doubt should be such
as a reasonable person would honestly and conscientiously entertain
as to the guilt of the accused.
In
ANOKH SINGH vs. STATE OF PUNJAB, reported in AIR 1992
SC p.598, Supreme Court has held that in an appeal against
acquittal, the High Court should attach greater weight to
appreciation of evidence by the Trial Judge who had the occasion to
watch the demeanour of the witnesses.
It
is a cardinal principle of criminal jurisprudence that in an
acquittal appeal if other view is possible then also appellate
Court cannot substitute its own view by reversing the acquittal into
conviction, unless the findings of the trial Court are perverse,
contrary to the material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable. (See Ramesh Babulal
Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant
case, the learned APP has not been able to point out to us as to
how the findings recorded by the trial Court are perverse,
contrary to material on record, palpably wrong, manifestly
erroneous or demonstrably unsustainable.
On
overall appreciation of evidence, this Court is satisfied that
there is no infirmity in the reasons assigned by the trial Court
for acquitting the accused persons. Suffice it to say that the
trial Court has given cogent and convincing reasons for
acquitting the accused person and the learned A.P.P. has failed to
dislodge the reasons given by the trial Court and convince this
Court to take a view contrary to the one taken by the trial
Court.
Seen
in the above context, we do not find any valid reason or
justifiable ground to interfere with the impugned judgment
and order acquitting the accused person of the offences with which
he was charged.
For
the foregoing reasons, the application fails and accordingly it is
rejected. Resultantly, leave to appeal is refused, and as a
consequence thereof, Criminal Appeal No. 208 of 2010 is dismissed.
(A.M.Kapadia,
J.)
(J.C.Upadhyaya,
J.)
/MOIN
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