{"id":235449,"date":"2010-07-26T00:00:00","date_gmt":"2010-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-unknown-on-26-july-2010"},"modified":"2016-12-18T15:59:47","modified_gmt":"2016-12-18T10:29:47","slug":"state-vs-unknown-on-26-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-unknown-on-26-july-2010","title":{"rendered":"State vs Unknown on 26 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Unknown on 26 July, 2010<\/div>\n
Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/1118\/2010\t 9\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 1118 of 2010\n \n\nIn\n\n\n \n\nCRIMINAL\nAPPEAL No. 208 of 2010\n \n\n \n \n=========================================================\n\n \n\nSTATE\nOF GUJARAT - Applicant(s)\n \n\nVersus\n \n\nRAVAT\nPAPPUBHAI KANUBHAI - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nLB DABHI, APP for Applicant(s) : 1, \nNone for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.C.UPADHYAYA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/07\/2010 \n\n \n\n \nORAL\nORDER<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)<\/p>\n
By
\n\tmeans of filing this Application under Section 378 (1)(3) of the
\n\tCode of Criminal Procedure, the applicant   State of Gujarat has
\n\tprayed to grant leave to file Criminal Appeal No.208\/2010, which is
\n\tdirected against the judgment and order dated 26th
\n\tOctober 2009 rendered in Sessions Case No.156 of 2008 by the learned
\n\tAdditional Sessions Judge, 3rd Fast Track Court, Mehsana
\n\tcamp at Visnagar, by which the opponent accused came to be
\n\tacquitted of the offences punishable under Sections 498(A) and 306
\n\tof the Indian Penal Code.\n<\/p>\n
The
\n\tprosecution case as disclosed in the FIR and unfolded during trial
\n\twas that;\n<\/p>\n
2.1\tDeceased
\n\tDakhuben, daughter of first informant Gangadevi Fulsinh married the
\n\topponent-accused Ravat Pappubhai Kanubhai before about 9 to 10 years
\n\tfrom the date of the incident.\n<\/p>\n
2.2
\n\tIt is the case of the prosecution that on 20th April
\n\t2008, Dakhuben informed the first informant Gangadevi who happen to
\n\tbe her mother on telephone that she was beaten by her husband, the
\n\topponent-accused and she requested her mother to take her away from
\n\tthe house of the opponent-accused or else she would be killed.\n<\/p>\n
2.3
\n\tIt is the case of the prosecution that at about 2 am in the night on
\n\t21st April 2008, father of the opponent-accused, along
\n\twith three to four other persons, came to the house of the first
\n\tinformant Gangadevi and informed her that her daughter deceased
\n\tDakhuben was sick and she was admitted in hospital and she was
\n\trequested to come to the hospital. Gangadevi refused to go to
\n\thospital but informed her son Pratapsinh (brother of deceased
\n\tDakhuben) about the sickness of Dakhuben and requested her son
\n\tPratapsinh to go to the hospital but Pratapsinh refused to go to the
\n\thospital.\n<\/p>\n
2.4
\n\tIt is the case of the prosecution that on 22nd April 2008
\n\tthe first informant Gangadevi was informed that her daughter
\n\tDakhuben had died. Thereupon on 22nd April 2008 the first
\n\tinformant Gangadevi reported the incident to Unja Police and her FIR
\n\twas registered.\n<\/p>\n
2.5
\n\tDuring the course of investigation, statements of material witnesses
\n\twere recorded, relevant documents like postmortem report, etc. came
\n\tto be recovered, necessary panchnamas were drawn in presence of
\n\tpanchas and after the police concluded its investigation,
\n\tcharge-sheet came to be filed in the Court of learned Judicial
\n\tMagistrate, First Class, Mehsana. But, since the offence punishable
\n\tunder Section 306 of the IPC is exclusively triable by the Court of
\n\tSessions, the learned Magistrate committed the case to the Sessions
\n\tCourt at Mehsana, which was registered as Sessiosn Case No.156\/2008
\n\tand the same was made over to the Court of learned Additional
\n\tSessions Judge, 3rd Fast Track Court, Mehsana camp at
\n\tVisnagar for trial.\n<\/p>\n
2.6
\n\tThe trial Court framed charge against the opponent-accused to which
\n\the did not plead guilty and claimed to be tried. Thereupon the
\n\tprosecution examined nine witnesses and produced seventeen documents
\n\tdetailed in paragraph 5 of the impugned judgment and order rendered
\n\tby the trial Court. After appreciating the evidence on record and
\n\tthe submissions made on behalf of both the sides, the trial Court
\n\tcame to the conclusion that the prosecution failed to prove its case
\n\tbeyond any reasonable doubt against the opponent-accused and
\n\trecorded the acquittal.\n<\/p>\n
\tWe
\n\thave considered the submissions advanced by Mr. L.B.Dabhi, learned
\n\tAPP for the applicant   State of Gujarat, we have perused the
\n\timpugned judgment and order, the set of evidence supplied by him
\n\tduring the course of his submission and so also the records and
\n\tproceedings of Sessions Case No.156\/2008 called for by us from the
\n\ttrial Court vide order dated 5th July 2010. This Court
\n\thas also undertaken a complete and comprehensive appreciation of all
\n\tvital features of the case and the entire evidence on record with
\n\treference to broad and reasonable probabilities of the case.\n<\/p>\n
We
\n\thave given our thoughtful consideration to the impugned judgment and
\n\torder rendered by the trial Court and the evidence adduced by the
\n\tprosecution as revealed from the record of the case. There is no
\n\tdispute that the marriage span between the deceased and the
\n\topponent-accused was approximately of about 9 to 10 years. The trial
\n\tCourt elaborately dealt with the evidence of first informant PW2
\n\tGangadevi Fulsinh examined at Exh.15 who happen to be the mother of
\n\tthe deceased Dakhuben and the trial Court observed that barring the
\n\tonly instance reporting alleged ill-treatment meted out to Dakhuben
\n\tby the opponent-accused, throughout the married life of Dakhuben she
\n\tnever complained anything against her husband to her mother
\n\tGangadevi. The trial Court further observed that even the conduct of
\n\tfirst informant Gangadevi was doubtful in the sense that, according
\n\tto her despite the fact
\n\tthat she was informed that her daughter was sick and was admitted in
\n\thospital, she did not go to the hospital to meet her daughter till
\n\ther daughter expired. It was further revealed from her evidence that
\n\teven after she received the message of death of her daughter, she
\n\tdid not go to the village where her daughter was residing with the
\n\topponent-accused. The dead body of Dakhuben was brought to the
\n\tvillage where the first informant Gangadevi was residing in
\n\tRajasthan. Thereafter, the FIR came to be filed.\n<\/p>\n
Scrutinizing
\n\tthe evidence of PW3 Pratapsinh Fulsinh examined at Exh.17 who happen
\n\tto be the brother of the deceased, the trial Court observed that his
\n\tevidence is mere hearsay evidence because he was informed about the
\n\talleged cruelty meted out to his sister Dakhuben through his mother
\n\tGangadevi. Moreover, Pratapsinh in his evidence nowhere stated that
\n\tindependently to the information which he received from his mother,
\n\the had the knowledge about any cruelty or ill-treatment meted out to
\n\this sister by her husband. Postmortem report reveals that the death
\n\twas due to hanging but the first informant Gangadevi alleged that
\n\tbecause of beating by the opponent-accused her daughter Dakhuben
\n\tdied. The medical evidence also reveals that there were no marks of
\n\tany injury on the body of the deceased. The trial Court further
\n\tobserved that neither the offence punishable under Section 498A of
\n\tthe IPC came to be proved against the opponent-accused nor the
\n\toffence punishable under Section 306 of the IPC was established
\n\tagainst the accused and, therefore, there was no reason whatsoever
\n\tto apply the statutory presumption contained under Section 113(A) of
\n\tthe Evidence Act.\n<\/p>\n
Over
\n\tand above this, the matrimonial span of the deceased with her
\n\thusband was approximately 9 to 10 years i.e. more than 7 years.
\n\tThus, considering the impugned judgment and order rendered by the
\n\ttrial Court and the reasoning assigned by the trial Court while
\n\trecording acquittal of the opponent-accused, we are of the
\n\tconsidered opinion that the trial Court did not commit any
\n\tillegality or any irregularity in recording acquittal of the
\n\topponent-accused.\n<\/p>\n
On
\n\toverall view of the matter, according to us, the prosecution has not
\n\tbeen able to bring home the charge levelled against the
\n\topponent-accused and his complicity cannot be said to have been
\n\testablished.\n<\/p>\n
This
\n\tis an acquittal appeal. The principles which would govern and
\n\tregulate the hearing of appeal by the High Court against an order of
\n\tacquittal passed by the Trial Court have been very succinctly
\n\texplained by the Supreme Court in the matter of  AJIT SAVANT
\n\tMAJAGAVI VS. STATE OF KARNATAKA, reported in AIR 1997
\n\tp.3255.\n<\/p>\n
(a)
\n\tIn an appeal against an order of acquittal, the High Court possesses
\n\tall the powers, and nothing less than the powers it possesses while
\n\thearing an appeal against an order of conviction.\n<\/p>\n
(b)
\n\tThe High Court has the power to reconsider the whole issue,
\n\treappraise the evidence and come to its own conclusion and findings
\n\tin place of the findings recorded by trial court, if the said
\n\tfindings are against the weight of the evidence on record, or in
\n\tother words, perverse.\n<\/p>\n
(c)
\n\tBefore reversing the finding of acquittal, the High Court has to
\n\tconsider each ground on which the order of acquittal was based and
\n\tto record its own reasons for not accepting those grounds not
\n\tsubscribing to the view expressed by the trial Court that the
\n\taccused is entitled to acquittal.\n<\/p>\n
(d)
\n\tIn reversing the finding of acquittal, the High Court has to keep in
\n\tview the fact that the presumption of innocence is still available
\n\tin favour of the accused and the same stands fortified and
\n\tstrengthened by the order of acquittal passed in his favour by the
\n\ttrial Court.\n<\/p>\n
(e)
\n\tIf the High Court, on a fresh scrutiny and reappraised of the
\n\tevidence and other material on record, is of the opinion that there
\n\tis another view which can be reasonably taken, then the view which
\n\tfavours the accused should be adopted.\n<\/p>\n
(f)
\n\tThe High Court has also to keep in mind that the trial Court had the
\n\tadvantage of looking at the demeanour of witnesses and observing
\n\ttheir conduct in the Court, especially in the witness box.\n<\/p>\n
(g)
\n\tThe High Court has also to keep in mind that even at that stage, the
\n\taccused was entitled to benefit of doubt. The doubt should be such
\n\tas a reasonable person would honestly and conscientiously entertain
\n\tas to the guilt of the accused.\n<\/p>\n
In
\n\t ANOKH SINGH vs. STATE OF PUNJAB,<\/a> reported in AIR 1992
\n\tSC p.598, Supreme Court has held that in an appeal against
\n\tacquittal, the High Court should attach greater weight to
\n\tappreciation of evidence by the Trial Judge who had the occasion to
\n\twatch the demeanour of the witnesses.\n<\/p>\n
It
\n\tis a cardinal principle of criminal jurisprudence that in an
\n\tacquittal appeal if  other view is  possible then also appellate
\n\tCourt cannot substitute its own view by reversing the acquittal into
\n\t conviction, unless the findings of the trial Court are perverse,
\n\tcontrary to the material on  record, palpably  wrong, manifestly
\n\terroneous or demonstrably unsustainable. (See  Ramesh Babulal
\n\tDoshi  V. State of Gujarat<\/a> (1996) 9 SCC 225).  In the instant
\n\tcase, the learned APP has not been able  to  point out to us as to
\n\thow the findings recorded  by the trial Court are perverse,
\n\tcontrary  to material on record, palpably wrong, manifestly
\n\terroneous or demonstrably unsustainable.\n<\/p>\n
On
\n\toverall appreciation of evidence,  this Court is  satisfied  that
\n\tthere is no infirmity in the reasons assigned  by  the trial Court
\n\tfor acquitting the accused persons.  Suffice it to say that the
\n\ttrial Court has given cogent and convincing  reasons  for
\n\tacquitting the accused person and the learned A.P.P. has  failed to
\n\tdislodge the reasons given by the trial Court and  convince  this
\n\tCourt  to take  a  view contrary to the one taken by the trial
\n\tCourt.\n<\/p>\n
Seen
\n\t in  the  above  context, we do not find any valid reason or
\n\tjustifiable ground to interfere with the impugned  judgment
\n\tand order acquitting the accused person of the offences with  which
\n\the was  charged.\n<\/p>\n
For
\n\tthe foregoing reasons, the application fails and accordingly it is
\n\trejected.  Resultantly, leave to appeal is refused, and as a
\n\tconsequence thereof, Criminal Appeal No. 208 of 2010 is dismissed.\n<\/p>\n
(A.M.Kapadia,
\nJ.)<\/p>\n
(J.C.Upadhyaya,
\nJ.)<\/p>\n
\/MOIN<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Unknown on 26 July, 2010 Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice J.C.Upadhyaya,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-235449","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Unknown on 26 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-unknown-on-26-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Unknown on 26 July, 2010 - 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