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CR.MA/3675/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3675 of 2011
In
CRIMINAL
MISC.APPLICATION No. 3674 of 2011
In
CRIMINAL APPEAL No. 386 of 2011
With
CRIMINAL
APPEAL No. 386 of 2011
With
CRIMINAL
MISC.APPLICATION No. 3674 of 2011
In
CRIMINAL APPEAL No. 386 of 2011
=========================================================
STATE
OF GUJARAT – Applicant(s)
Versus
HIMMATBHAI
RAJESHBHAI CHAMPABHAI CHUNARA – Respondent(s)
=========================================================
Appearance
:
MR
KARTIK PANDYA, APP for Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 04/10/2011
ORAL
COMMON ORDER :
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The
applicant – appellant – State has filed this application
u/s. 5 of the Limitation Act praying for condondation of delay of 18
days caused in preferring the application seeking leave to prefer
appeal challenging impugned judgment and order dated 29/10/2010
rendered by Ld. Addl. Sessions Judge, City Sessions Court No. 12,
Ahmedabad City, in Sessions Case No. 271 of 2010, whereby the
respondent herein, who was original accused in the aforesaid sessions
case, came to be acquitted of the offences punishable under Sections
498-A and 306 of the Indian Penal Code [IPC].
2. Mr.
Kartik Pandya, Ld. APP, for the applicant – appellant –
State submitted that the delay of 18 days came to be caused on
account of administrative reason in obtaining sanction order from the
Legal Department for preferring the acquittal appeal and the delay
has been sufficiently explained in this application and the contents
of this application are supported by the affidavit of Under Secretary
of the Legal Department of the State. Mr. Pandya, Ld. APP further
submitted that before the trial Court, the prosecution examined
important witnesses, namely the parents and relatives of the deceased
as well as deceased herself lodged the FIR against the accused and
her dying declaration [DD] was recorded by the Executive Magistrate.
Thus, the prosecution successfully proved that on account of
persistent torture and ill-treatment meted-out to the deceased by her
husband – the respondent accused, she committed suicide. Mr.
Pandya, therefore, submitted that the appellant has a meritorious
case and if the delay is not condoned, the meritorious case of the
appellant shall be adversely affected and that the appellant shall
suffer great prejudice.
3. Since
Mr. Kartik Pandya, Ld. APP, for the applicant – appellant –
State has submitted that the appellant has meritorious case and that
if the delay is not condoned and the appellant is not permitted to
prefer acquittal appeal, then the meritorious case of the appellant
shall be adversely affected and that the appellant shall suffer great
prejudice, we deem it necessary to examine impugned judgment and
order rendered by the trial Court, so also the papers containing the
evidence supplied to us for our perusal. Examining the impugned
judgment and order, so also the relevant papers of evidence, it
transpires that the prosecution has come forward with the case that
as the respondent accused being the husband of the deceased was in
habit of consuming liquor and when in capacity as his wife, the
deceased requested the accused not to consume liquor, she was beaten
by the accused and she was ill-treated and ultimately she decided to
commit suicide and on 22/12/2009 she poured kerosene on her body and
set herself to fire by igniting match-stick. Medical evidence
suggests that she sustained 60% to 70% burn injuries mostly on upper
extremity of her body. Even when she was brought to hospital, she was
semi-unconscious. As per the prosecution case, she herself lodged FIR
as well as her DD was recorded by the Executive Magistrate. As
observed by the trial Court, neither before recording her FIR nor her
DD, the concerned authority consulted the Medical Officer to know
about her physical and mental state of body and no endorsement of the
Medical Officer was obtained that she was fit to give DD. It is
further pertinent to note that the parents as well as brother and
relatives of the deceased came to be examined by the prosecution and
all these witnesses stated that since the time when the deceased was
admitted in hospital till her death, she was unconscious and she was
unable to speak. Her parents and other relatives further stated that
the matrimonial life of the deceased with the accused was happy and
there was no ill-treatment caused to the deceased by her husband. It
further transpires perusing the evidence on record that to save the
deceased from sustaining further burn injuries, the accused tried to
extinguish fire and in that process, he himself sustained burn
injuries. It further transpires that she was immediately brought to
hospital by the mother-in-law of the deceased [mother of the
accused].
4. In
the impugned judgment, the trial Court elaborately dealt with the
above aspect of the matter and ultimately came to the conclusion that
the prosecution failed to prove its case beyond any reasonable doubt
against the accused and granted to him the benefit of doubt. We do
not find any just and sufficient reason to interfere with the
impugned judgment and order rendered by the trial Court. It is
further well settled that if two views are possible, one leading to
the guilt of the accused and another leading to the innocence of the
accused, the view leading to the innocence of the accused is required
to be accepted.
5. In
the above view of the matter, we do not find any substance in the
submission made on behalf of the applicant – appellant State
that the appellant has a meritorious case and that if the delay in
preferring the appeal is not condoned and the appellant is not
permitted to prefer acquittal appeal, then the meritorious case of
the appellant shall be adversely affected and that the appellant
shall suffer great prejudice, has no force as the appeal itself is
devoid of any merit.
6. For
the foregoing reasons, the application praying condonation of delay,
application seeking leave to prefer appeal and the appeal stand
dismissed.
(D.H.WAGHELA,
J.)
(J.C.UPADHYAYA,
J.)
*
Pansala.
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