1. The present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 5.5.1995 passed by the learned Additional Sessions Judge, Valsad at Navsari, in Sessions Case No.48 of 1988, whereby the accused have been acquitted from the charges leveled against them.
2. As per the case of the prosecution, the deceased was harassed by the accused No.1 husband, accused No.2 – sisterinlaw and accused No.3 – motherinlaw of the deceased, for taking dowry from the deceased. Therefore, the deceased committed suicide by pouring kerosene and set her at fire. During the course of medical treatment, the deceased died. Therefore, the offence under Sections 498(A), 306 and 114 of the Indian Penal Code was registered against the accused. Thereafter, 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. 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.48 of 1988. The trial was initiated against the respondents accused.
3. To prove the case against the present accused, the prosecution has examined, in all 12 witnesses and also produced several documentary evidence.
4. 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 5.5.1995.
5. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant State has preferred the present appeal.
6. 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. She further submitted that this is the offence against the woman and from the oral evidence recorded by the trial Court, it appears that the accused illtreated the deceased and they had beaten the deceased. She submitted that there are ample and direct evidence connect the accused with the offence. The prosecution witnesses like mother, maternal uncle, brother of the deceased supported the case of the prosecution and also from the record, the offence was proved against the accused, but the learned trial Judge did not consider the version of prosecution in proper manner. Even from the oral evidence of these witnesses, the fact of asking money, cloths etc. from the deceased by the accused was proved and the accused Nos.2 and 3 instigated the accused No.1 to cause harassment to the deceased. She further submitted that the accused were saying that the parents of the deceased are beggars and could not give anything. She further submitted that from the dying declaration of the deceased recorded by the Executive Magistrate, it appears that the deceased was illtreated by the accused persons and therefore, she committed suicide. As per her submission, the learned trial Judge without appreciating the evidence on record, wrongly acquitted the accused person and therefore, the judgment and order passed by the learned trial Judge is required to be quashed and set aside by allowing the present Appeal and the order of conviction to the accused may be passed.
7. Learned advocate Mr. A.D. Shah for the respondents – accused read the provisions of Section 306 and 498(A) of the Indian Penal Code and submitted that the offence as alleged is not proved through the oral as well as documentary evidence. He submitted that the deceased Bhartiben was married with accused on 11.2.1984 and at that time, she was studying in Std. XII. After marriage, said Bhartiben had stayed at her inlaws house for 3 days and she had gone to her parental home at Daman for examination of Std. XII. She had joined college thereafter, and during the vacation or holidays, she had visited her matrimonial home for 15 days. He further submitted that the incident took place within 10 days after deceased Bharti and son went to the house of the accused. As per her submission, on 5.3.1987, the accused No.1 told Lilaben to send Bhartiben with son on Tuesday as elderly people were not in the house and other relatives were yet to come for seeing newly born. However, the deceased Bhartiben had insisted to go with her mother as the mother wanted Bhartiben to accompany due to her examination of Third year college was approaching. He submitted that looking to the events as stated herein above, it is clearly appeared that the deceased Bhartiben had hardly stayed at her matrimonial home. He further submitted that from the evidence of Vasantbhai, it reflects that as health of Bhartiben was not keeping good, the Srimant ceremony was not undertaken at her inlaw's house and she passed her pregnancy period at her parental home. This witness also stated in his evidence, that when this witness went to Daman and till the deceased died, the deceased had not complained about illtreatment or cruelty from inlaws. He further submitted that the allegations levelled against the accused persons are of in general nature. He further stated that from the evidence of Lilaben, prima facie does not disclose the illtreatment or cruelty being meted out to the deceased Bhartiben. He further submitted that at the time of recording dying declaration, the Executive Magistrate did not obtain certificate as to the mental fitness of deceased to make statement. Though the name in Yadi was Bhartiben Mukesh, the complaint did not inquire about the name of accused No.1 – Mahesh husband of the deceased. In the dying declaration, the name of Varshaben was not there and also the name of Suryaben was erased and name of Varshaben was inserted. Therefore, as per his submission, there are certain corrections and additions made after recording statement. The signatures of witnesses were obtained on dying declaration who not present at the time of recording the statement. Even the Executive Magistrate admitted that some contents in the dying declaration were not correct. In short, as per his submission, the deceased was not in a position to give reply at the time of recording dying declaration. Therefore, the charge of 498(A) is not prima facie made out form the prosecution evidence. In view of the above, he submitted that the Appeal is required to be dismissed and no interference is required to be called from this Court.
8. I have perused the record and considered the submissions made by the parties. I have perused the oral evidence of the witnesses examined by the trial Court. I have scrutinized the contents of the dying declaration recorded by the Executive Magistrate and the deceased received burn injuries on overall her body and therefore, it creates doubt about her consciousness at the time of recording dying declaration. The Executive Magistrate did not contact the Medical Officer while recording dying declaration and there is no medical evidence suggest that deceased was fit to make the statement before the Executive Magistrate. From the evidence of Medical Officer, it appears that the deceased was able to speak but she was not in a position to give her statement in conscious position. The Medical Officer examined before the trial Court, stated in her evidence that she had not seen the Executive Magistrate for recording her statement. The dying declaration was not attested by the officer with the Medical Officer. The Police Constable Anopsinh denied about his signature in the dying declaration. Looking to the overall record, it appears that the deceased hardly stayed at her matrimonial home and her days after marriage, were spent at her parental home. The mother of the deceased Lilaben admitted in her evidence that from the period of pregnancy and till getting the age of one month and 15 days by her son, the deceased had not gone to her matrimonial home. Even from the evidence of other witnesses examined during the trial, the cruelty caused by the accused upon the deceased is not established. The complainant by his oral evidence, did not prove the harassment caused by the accused upon the deceased. I have minutely perused the judgment and order of acquittal passed by the trial Court and the trial Court discussed every aspects of the case in detail. Even the trial Court discussed the cited cases in detail and therefore, I have not found any reason to interfere with the findings assigned by the learned trial Judge.
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 respondent of the charges leveled against her.
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