[1] The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the Judgment and order of acquittal dated 29.09.1994 passed by the learned Sessions Judge, Mehsana, in Sessions Case No.78 of 1994, whereby the learned Judge has acquitted the respondent - accused from the charges levelled against him.
[2] The brief facts of the case of prosecution is that the deceased Kokilaben daughter of Somabhai Amthabhai Parmar, resident of Dabhoda, Taluka : Kheralu was serving in Nirma Factory. At that time, the Supervisor of that factory had demanded illicit relation with him. On account of mental harassment, on 03.01.1994 at about 8.00 p.m, she committed suicide. Therefore, the complainant lodged complaint against the accused - respondents for the offences punishable under Section 306 of I.P. Code.
[3] Necessary investigation was carried out, statements of the witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet was filed against the respondent - accused in the Court of learned J.M.F.C. Thereafter, as the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the charge was framed against the respondents - accused. The respondent - accused pleaded not guilty to the charge and claimed to be tried.
[4] To prove the case against the accused, the prosecution has examined the witnesses and relied upon certain documents. At the end of trial, after recording the statements of the respondent - accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge, vide the impugned Judgment and order, has acquitted the respondent - accused from the charges levelled against him.
[5] Being aggrieved by and dissatisfied with the Judgment and order passed by the trial Court the appellant - State has preferred the present Appeal.
[6] I have heard learned A.P.P. Ms.Jirga Jhaveri on behalf of the appellant
- State. I have also gone through the papers and also the Judgment and order of the Sessions Court. Learned A.P.P has contended that the Sessions Court has committed an error in acquitting the respondent. She has contended that the Sessions Court has failed in considering two dying declarations recorded by the Executive Magistrate. She has contended that the Sessions Court has failed in appreciating the fact that in one dying declaration, the deceased has clearly stated that she was given ill-treatment by the accused, and therefore, she had committed suicide. The second dying declaration is supported by the oral evidence of the relatives of the deceased i.e. Ishwarbhai Sendhabhai, the complainant Kanubhai at Ex.19 and 17. She has contended that the Sessions Court has not considered and evaluated the oral evidence of prosecution witnesses at Ex.17 and 19 and has considered the evidence of prosecution witness, Somabhai at Ex.18. She has contended that the Sessions Court has not believed the evidence of Vasantlal Bhagwandas Makwana, Ex.24 and the dying declaration recorded by him at Ex.27. She has contended that the Sessions Court has committed an error in holding that the evidence at Ex.24, 26 and 27 are got up evidence. She has contended that Sessions Court has wrongly considered that the prosecution has failed to prove the ingredient of Section 306 of the Indian Penal Code. It has been contended by the learned APP that the Judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law, it is established that the prosecution has proved all the ingredients of the evidence against the present respondents. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.
[7] At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the Sessions Court has been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006)6 SCC, 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54.
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below."
[8] Further, in the case of Chandrappa Vs. State of Karnataka, reported in (2007)4 SCC 415 the Apex Court laid down the following principles:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
[9] Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Sessions court.
[10] Even in a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
[11] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[12] It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
"...
This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
[13] Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
[14] I have gone through the judgment and order passed by the Sessions court. I have also perused the oral as well as documentary evidence led before the Sessions court and also considered the submissions made by learned APP for the appellant. Looking to the facts and circumstances of the case, it appears that there are four dying declarations of the deceased. As per the decision of the Apex Court, the dying declaration must be reliable, trustworthy and acceptable. It is to be noted that the first dying declaration Ex.7 was recorded on 03.01.1994 wherein the deceased Kokilaben has stated that when she was lighting the stove, she got burn herself and at that time no one was present. In the said dying declaration Ex.7, deceased Kokilaben made her thumb impression of her write hand. The second dying declaration Ex.27 was recorded on 25.08.1995 wherein the deceased Kokilaben has stated that one person namely Punambhai Gakurbhai Vankar has given her mental harassment and, therefore, she tried to commit suicide and she sustained burn injury. In said dying declaration Ex.27, deceased Kokilaben made her thumb impression of her left hand. The third dying declaration Ex.37 was recorded on 03.09.1994 wherein deceased Kokilaben has stated that when she was cooking and at that time she tried to light the stove, she sustained burn injury and on one was present in the house. In said dying declaration Ex.37, deceased Kokilaben made her thumb impression of her righty hand. It is true that the Apex Court has laid down the ratio that the dying declaration recorded before the police constable, head constable or other officers, cannot be discarded. Even the dying declaration before the police head constable is admissible in evidence. In the present case, dying declaration Ex.7 is recorded by the police head constable, which cannot be discarded. Looking to the evidence of P.W.3 - Ishwarbhai Sedhabhai, who was examined at Ex.19, deposed that due to wrong rumors being talked about Kokilaben, she tried to commit suicide. In the cross-examination, this witness deposed that they reached at the hospital at about 9.00 p.m where the Mamlatdar came to take statement of Kokilaben. He also deposed in his cross-examination that the Mamlatar and Doctor were there in the room. As per the case of the prosecution, it is alleged by the complainant and other witnesses that the respondent - accused had illicit relation with the deceased and due to harassment and conduct of the respondent, she has committed suicide. From the evidence of Ex.7 and oral version of the P.W.3, it appears that there was no involvement of the present respondent to instigate the deceased to commit suicide. Looking to the facts and circumstances of the case, it prima facie, appears that the Sessions Court has not committed any error in acquitting the respondent - accused.
[15] The Sessions court has, after appreciating the oral as well as documentary evidence, has found that the witnesses have not supported the case of prosecution. The Sessions Court has also found that there are serious lacuna in the evidence of the witnesses. Nothing is produced on record to rebut the concrete findings of the Sessions Court.
[16] Thus, the appellant could not bring home the charge against the respondent
- accused in the present Appeal. The prosecution has miserably failed to prove the charge levelled against the respondent - accused. Thus, from the evidence itself it is established that the prosecution has not proved its case as alleged against the accused beyond reasonable doubt.
[17] Learned APP is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Sessions court is vitiated by some manifest illegality or that the decision is perverse or that the Sessions court has ignored the material evidence on record.
[18] In above view of the matter, I am of the considered opinion that the Sessions court was completely justified in acquitting the respondent of the charges leveled against him. I find that the findings recorded by the Sessions court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
[19] I am, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal deserves to be dismissed.
[20] In view of above the Appeal is dismissed. The judgment and order of dated 29.09.1994 passed by the learned Sessions Judge, Mehsana, in Sessions Case No.78 of 1994 acquitting the respondent - accused of the offences charged against him is hereby confirmed. Bail bonds, if any, shall stand cancelled. Record & Proceeding may be sent back to the Sessions Court.
[ Z. K. SAIYED, J. ] vijay Top