1. Though served other side is absent when the matter is called out. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 20.1.1995 passed by the learned Additional Sessions Judge, Kutch, Bhuj, in Sessions Case No.83 of 1993, whereby the accused have been acquitted from the charges leveled against them.
2. The brief facts of the prosecution case are as under:
2.1 The deceased Damyantiben, daughter of complainant Velji Panjibhai was married with accused No.1 before 7 years from the incident. The accused No.2 is motherinlaw, accused No.3 and 4 are brotherinlaw (Jeth) and sisterinlaw (Jethani) of the deceased. After the marriage, deceased was living with the accused persons at Gandhidham. The deceased complained to her parents about ill treatment and torture by the accused persons. The accused No.2 was not prepared to give any amount of her pension to the deceased, as the accused No.1 was not doing any work and the accused No.1 and deceased have two minor children. The accused No.2 was not ready to allow the deceased with her children to live with the accused persons. It is alleged that on previous day of incident, the deceased was beaten up by the accused persons and also in the morning on the day of incident, the deceased was beaten and illtreated. On account rude behaviour of the accused persons, the deceased poured kerosene on herself and put herself at fire. After getting some medical treatment, she died. Therefore, the offence was registered against the accused under Sections 498(A), 306 and 114 of the Indian Penal Code. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, chargesheet was filed against them before the court of learned Judicial Magistrate First Class. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court, which was numbered as Sessions Case No.83 of 1993. The trial was initiated against the respondents accused.
2.2 To prove the case against the present accused, the prosecution has examined, in all 20 witnesses and also produced several documentary evidence.
2.3 At the end of trial, after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges leveled against him by judgment and order dated 20.1.1995.
3. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.
4. It is submitted by 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 itself it is established that the prosecution has proved the whole 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. Learned APP further submitted that the evidence like inquest panchnama at Exhibit 13 and P.M. report at Exhibit 22 are proved against the accused persons. As per the medical evidence, the case is also proved against the accused persons. She further submitted that as per the evidence of P.W.1 Velji Bhanji, the deceased stated him that the accused No.1 had beaten her and therefore, the deceased committed suicide and died. She further submitted that from the evidence of P.W.2 Ratilal Odhavji Thakore, it is reflected that the accused and deceased quarreled each other. She also submitted that from the oral evidence of P.W.3 Rasilaben, P.W.4 Noormamad, P.W. 5 Rambhaben and other material witnesses, it comes out that the accused persons caused mental and physical harassment to the deceased and therefore, deceased committed suicide and died. She further submitted that the dying declaration is proved by the prosecution and therefore, it can be said that the prosecution proved the case against the accused, but the trial Court has not properly appreciated the evidence on record and wrongly acquitted the accused and therefore, by way of this Appeal, she prayed to allow the appeal by quashing and setting aside the judgment and order of the trial Court.
5. I have perused the record and considered the submissions made by the parties. I have perused the dying declaration recorded by the Executive Magistrate, Gandhidham. In said dying declaration, the deceased stated that on 20.7.1993, the accused had beaten the deceased as the deceased was doing the household work of other persons. Thereafter, on 21.7.1993 at 6:00 a.m. in the morning, the quarrel took place between the accused No.1 and the deceased and same was continued upto 9:00 a.m. and the accused had beaten the deceased with the help of stick/wooden piece. Thereafter, the accused went to take bath and the deceased got angered and therefore, she poured kerosene from the stove and set her at fire. The accused No.1 had not tried to save the deceased from the fire. I have perused the evidence of P.W.1 Veljibhai, and he admitted that on the day of incident, he talked with his daughter Damyantiben, but he did not say anything to the police. Even as per the evidence of P.W.2 Ratilal, he was declared hostile. In the evidence of Rasilaben P.W.3, she admitted that she had never seen the accused to quarrel with the deceased. Looking to all the evidence examined before the trial Court, the aspect of instigation or provocation are not established which resulted to commit suicide by the deceased. I have also minutely perused the evidence of P.W.18, Laxmiben, who is Social Worker stated in her evidence that the hands of the deceased were burnt, but as per the Doctor, the hands of the deceased were not burnt. From the evidence of this witness, there are so many contradictions and are not corroborated with the documents. From the record of the case, it appears that due to strained relation between the accused No.1 and the deceased, the deceased set her at fire and it is not at all established that the accused No.1 or other accused persons instigated her to commit suicide. Therefore, the aspects of instigation or provocation or any kind of abetment on the part of the accused are not established against the accused persons and therefore, the prosecution miserably failed to prove the case against the accused persons. Even the ingredients under Section 498(A) and 306 of the Indian Penal Code are not attracted to the case of the accused. Therefore, the learned trial Judge has rightly acquitted the accused from the charges levelled against him.
6. 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 trial Court have been very succinctly explained by the Apex Court in a catena of decisions. 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.”
7. 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 trial court.
8. 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.
9. I have gone through the judgment and order passed by the trial court. I have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned APP for the appellantState. Thus, from the evidence itself, it is established that the prosecution has not proved its case beyond reasonable doubt.
10. Learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.
11. In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the respondents of the charges leveled against them.
12. I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.
13. 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 is hereby dismissed. Bail bond, if any, stands cancelled. Record and proceedings to be sent back to trial Court, forthwith.
(Z.K. SAIYED, J.) ynvyas