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CR.MA/7941/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7941 of 2011
In
CRIMINAL
MISC.APPLICATION No. 7940 of 2011
In
CRIMINAL APPEAL No. 676 of 2011
With
CRIMINAL
MISC.APPLICATION No. 7940 of 2011
In
CRIMINAL APPEAL No. 676 of 2011
With
CRIMINAL
APPEAL No. 676 of 2011
=========================================================
STATE
OF GUJARAT – Applicant(s)
Versus
LAXMIBEN
@ KALIBEN WD/O RAMESHBHAI MANGABHAI HALPATI – Respondent(s)
=========================================================
Appearance
:
MR
KP RAVAL, 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
: 18/10/2011
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 8
days caused in preferring the application seeking leave to prefer
appeal challenging impugned judgment and order dated 28/2/2011
rendered by Ld. Addl. Sessions Judge, Navsari, in Sessions Case No.
28 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 302 of the Indian
Penal Code [IPC].
2. Mr.
KP Raval, Ld. APP, for the applicant – appellant –
State submitted that the delay of 8 days came to be caused on account
of administrative reasons in obtaining sanction order from the Legal
Department of the State to prefer the acquittal appeal. It is
submitted that the delay has been sufficiently explained in the
application and the contents whereof are supported by the affidavit
of Under Secretary of the Legal Department of the State. Mr. Raval,
Ld. APP further submitted that the prosecution in the instant case,
examined 10 witnesses and produced relevant documentary evidence in
support of its case, but the trial Court did not properly appreciate
the evidence on record and ultimately erred in recording the
acquittal of the accused. Mr. Raval submitted that there was injury
on the body of the accused and when she was referred to a hospital,
before the Medical Officer, in her history, she admitted killing of
her husband by her. Mr. Raval though submitted that considering the
evidence of minor children of the deceased and of the accused as well
as considering the evidence of neighbours, it is true that they did
not support the prosecution case regarding the murder of the deceased
by his wife, the respondent lady accused, but the circumstantial
evidence establishes her complicity in the crime. Mr. Raval,
therefore, submitted that if the delay is not condoned and if the
applicant appellant is not permitted to prefer the acquittal appeal,
the meritorious case of the prosecution shall be adversely affected
and the prosecution shall suffer great prejudice.
3. Mr.
Raval, Ld. APP in support of his aforesaid submission, supplied to us
the copies of the depositions of the witnesses and of the documents
relied upon by the prosecution before the trial Court.
4. Since
Mr. Raval, Ld. APP, for the applicant – appellant – State
has submitted that there are merits in the appeal and if the delay is
not condoned and the applicant- appellant is not permitted to prefer
the acquittal appeal, then the meritorious case of the prosecution
shall be adversely affected and that the prosecution shall suffer
great prejudice, we deemed it proper to examine impugned judgment
and order rendered by the trial Court, so also the relevant papers of
oral and documentary evidence adduced by the prosecution before the
trial Court.
5. The
respondent – original accused Laxmiben happened to be wife of
the deceased. As per the prosecution case, on account of some dispute
about the household expenses, the lady accused pushed her husband
deceased Rameshbhai and the deceased fell on the ground and the
accused pressed neck of the deceased and as per the medical evidence
on record, the deceased died on account of asphyxia due to
strangulation.
6. In
support of the prosecution, the prosecution examined 10 witnesses and
relied upon 15 documents detailed in paras. 4 and 5 in the impugned
judgment. It is pertinent to note that the prosecution examined two
minor children of the deceased and of the accused, namely PW 1 Ravi
and PW 2 Sonal and they neither supported the prosecution case nor
the incident having been witnessed by them. They stated that they do
not know as to how their father died. The prosecution examined
neighbours, namely PW 3 Rakesh, PW 4 Jignesh, PW 5 Suresh and PW 6
Manubhai and all these neighbour witnesses did not support the
prosecution case and they pleaded their complete ignorance as to how
and under what circumstances deceased died. The prosecution heavily
relied upon the evidence of PW 8 Dr. CM Patel examined at exh. 19 and
according to his version, he examined the respondent – lady
accused as there were some superficial injuries on her body and
according to him, the accused gave history to the effect that on
19/4/2010 at about 12.00 in the noon, a quarrel took place between
herself and her deceased husband and the deceased attempted to
inflict a blow with axe on her, but any how she could save herself
and in that process, the deceased fell on the ground and she had
pressed mouth of the deceased with her blouse. According to Ld. APP
Mr. Raval, this admission itself is sufficient to record conviction
of the accused. This aspect of the matter has been elaborately dealt
with by the trial Court in the impugned judgment and we are of the
considered opinion that when the witnesses examined by the
prosecution in capacity as eye witnesses did not support the
prosecution case, the instant solitary piece of evidence, which is
otherwise considered to be a very weak piece of evidence, namely
alleged extra judicial confession, cannot be considered as
substantive piece of evidence so that a conviction can be based upon
it. The trial Court, therefore, in the above view of the matter
arrived at the correct conclusion that such piece of evidence alone
cannot be said to be substantive piece of evidence or a sufficient
evidence to record conviction of the accused in the wake of the fact
that none of the so called eye witnesses supported the prosecution
case. The trial Court, in the above view of the matter, came to the
conclusion that the prosecution failed to prove its case beyond any
reasonable doubt and ultimately granted benefit of doubt to the
respondent accused.
7. 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.
8. Seen
in the above context, we do not find it necessary to interfere with
the impugned judgment and order of acquittal rendered by the trial
Court. In the result the submission made on behalf by the Ld. APP for
the applicant – appellant State that the prosecution has
meritorious case and if the delay is not condoned and the appellant
is not permitted to prefer the acquittal appeal, the meritorious
case of the prosecution shall be adversely affected and that the
prosecution shall suffer great prejudice, has no force. We are,
therefore, of the opinion that even if the delay is condoned and the
applicant-appellant is permitted to prefer the acquittal appeal, no
gainful purpose would be served as the appeal itself lacks merit.
9. 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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