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CR.A/723/1995 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 723 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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 ?
1
Yes, 2 to 5 -
No
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
VIJAYKUMAR
NARAYANBHAI PAWAR & 3 - Opponent(s)
=========================================================
Appearance :
PUBLIC
PROSECUTOR for
Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1,
MR BC DAVE
for Opponent(s) : 1 - 4.
MRMCTHAKUR for Opponent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 16/04/2010
ORAL
JUDGMENT
Heard
the learned Advocates for the parties.
The
appellant State of Gujarat has preferred this Appeal under
Section 378 of the Code of Criminal Procedure, 1973 (the Code)
challenging the order of acquittal dated 19.04.1995 passed by the
learned Judicial Magistrate First Class, Mangrol in Criminal Case
No.1097/1998 acquitting the accused respondent of the charge of
committing offences punishable under Section 498A read with Section
114 of the Indian Penal Code. The facts in brief leading to filing
of this appeal deserve to be set out as under.
The
original complainant and the accused no.1 married on 05.06.1983 and
on 25.11.1987 was driven out of her matrimonial home on account of
torture and demand of dowry by the accused no.1. Accused no.1 is
the husband of the complainant, accused no.2 happens to be the
married sister of accused no.1, accused no.3 happens to be the
mother of accused no.1 and accused no.4 happens to be the widow of
Rameshbhai Narayan who happens to be the deceased brother of accused
no.1. Accused no.2 and 4 were residing separately at their
respective place, accused no.1 and 3 were residing in the same house
being mother and son. The facts have come on record for the charge
indicating that the accused no.4 namely Induben was residing with
accused no.2. The complainant had made allegation that accused no.1
the husband had illicit relations with his sister-in-law who
happened to be the widow of his brother and the mother of two
children. On account of the said relationship, he and his relations
were harassing the complainant and demanding dowry. The complainant
has narrated that on account of such behaviour and torture, she had
to leave the matrimonial place and there was case for restoration of
conjugal right and alimony filed by husband and wife respectively
against each other and the said case were compromised and as per the
compromise dated 22.08.1987, she was taken home by accused no.1 on
25.08.1987. Thereafter, on 25.11.1987, she was driven away from her
matrimonial home after beating. After consulting with some well
wishers, a complaint came to be filed on 21.12.1987. The
investigation was over, report was filed, chargesheet was framed,
trial began, prosecution has examined 13 witnesses including the
complainant, the father of the complainant and others. The Court
after going through evidence recorded, came to the conclusion that
the prosecution could not establish guilt on part of the accused so
as to convict them and punish them and hence, accorded acquittal
vide order dated 19.04.1995 which is impugned in this proceeding
under Section 378 of the Code of Criminal Procedure.
Learned
APP Mr. Maulik Nanavati extensively read over the judgment impugned
and deposition of witnesses. However, learned APP could not
controvert any finding recorded by the Court based upon the evidence
available on record.
Mr.
B.C. Dave, learned Advocate appearing for the respondents made a
statement with regard to the order of acquittal and submitted that
being an acquittal appeal, the Court may not interfere with the
order of acquittal unless and until, it is established beyond doubt
that the order of acquittal has resulted in miscarriage of justice.
He submitted that the testimony of PW-2, the father of the
complainant clearly go to show that the complainant’s case was not
believable. He submitted that the Court may not interfere with the
order of acquittal.
As
stated above, the Court has read the testimony of the complainant
and other witnesses in detail. The complainant has clearly stated
that she was driven away from home on 25.11.1987. Thereafter, she
approached one Advocate Shri. Chaliyavala alongwith her father
and he dictated to her the complaint and prepared the draft of the
complaint and as per the advice and suggestions, the complaint was
lodged. This testimony has been corroborated with appropriate vigour
by the father who has also with equivalent vehemence submitted that
Shri. Chaliyavala was consulted and the draft was prepared by him.
But one fact remains that the complainant had lodged complaint on
21.12.1987 though she was driven out of the house on 25.11.1987.
PW-1
complainant has stated she is not aware about the fact that the
accused had filed restoration of conjugal rights in a petition being
72/1985. She is not aware as to whether she has asked for any
interim alimony therein. She has admitted further that it was
decided to file complaint on 25.11.1988. She stated that she does
not know on what date the witnesses were informed about in the
presence of PSI. She admitted that it is true that she had informed
all the witnesses one after the other. She also admitted that she
informed all the witnesses with regard to the incident. She has
unequivocally admitted that the complaint was typewritten. She has
also admitted that complainant and her father had gone to the
advocate for drafting the complaint. Rough draft was first prepared
and she does not know as to which typist had made the fair copy.
She has admitted that before giving the complaint, they have taken
advice of Advocate Mr. Chaliyavala. She also admitted that she had
taken the complaint as it was dictated to her by him. She has
admitted that she does not know how many copies were prepared of the
said complaint. She admitted that she does not know as to who
prepared the cover for sending it to the DSP. She admitted that she
does not know as to when she had approached the Kosamba Police
Station for despatching the envelope to DSP. She admitted that she
was accompanied by her father when she went to Kosamba Police
Station. She submitted that she does not when and where she had
given the application for collecting her goods and her belongings.
She admitted that there was a compromise in the Lok Adalat in
respect of the proceedings of 72/1985 and has stated that the
compromise had happened in the year 1987. She used to go to
college. She had admitted that the advocate was Mr. Chaliyavala who
represented them in 72/1985. The PW-2 happens to be the father of
the complainant who has corroborated the fact with regard to the
compromise with the accused which took place on 22.08.1987. The
father of the complainant happens to be a police personnel, that
fact has come on record. She also admitted that the complaint was
decided to be filed after obtaining the advocate’s advice. Her
father has also submitted that the Advocate Mr. Chaliyavala was
considered for filing these complaints. He also admitted that he
alongwith his daughter had gone to Advocate Mr. Chaliyavala. He
also said that the rough draft which was prepared was torn off by
him thereafter. He said that three copies of the complaint were
taken.
The
testimony of PW-1 and PW-2 namely the complainant and the father are
sufficient to deal a serious blow to the case of the prosecution and
the testimony has unequivocally made it clear that the complaint was
drafted after taking advice of the Advocate and as per the
dictation, all the witnesses were also informed by the victim.
Thus, on the said testimony, conviction for serious offences
punishable under Section 498A cannot be recorded. The order of
acquittal, therefore, in my view, cannot be said to be so perverse
as to call for investigation under Section 378 of the Code. In the
end, the appeal fails and is hereby rejected.
(S.R.
Brahmbhatt, J.)
Caroline
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